Plaintiff v Defendant

2 The executors are the first and second defendants. In December 2009 consent orders were made joining the third and fourth defendants, who are the sons Andrew and Jonathan. The third defendant, Andrew Robins, is profoundly mentally disabled and is represented by his litigation guardian, his mother Phyllis Robins, the former wife of the deceased.

3 The application was heard before me at trial commencing 6 June 2011 following a referral by Justice Habersberger made pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005 on 2 June 2011.

4 The plaintiff asserts that he was the same sex de facto or domestic partner of the deceased from December 1985 when he moved from the Philippines to the deceased's death, notwithstanding that for much of the twelve years prior to the deceased's death i.e. from 1996 the plaintiff worked away from Melbourne and so did not live full time with the deceased. The plaintiff seeks the sum of $900,000, on the basis that he was in the same position as a second spouse. His claim is for a sum sufficient to allow him to purchase a house, capital to provide an income stream and a nest egg.

5 The defendants do not deny that the plaintiff lived in the deceased's home between December 1985 and April 1996, nor that he returned from working away and stayed at the deceased's home on some occasions thereafter, but they say these occasions were few and for short periods of time. They deny any romantic or de facto relationship between the deceased and the plaintiff at any time. They assert that between 1985 and 1996 the plaintiff was a boarder or lodger in the deceased's home who was not required to pay rent because he carried out domestic services for the deceased. They assert that by the time of the deceased's death the relationship was at most one of friendship, or convenience. As a consequence they say that the deceased had no responsibility to make provision for the plaintiff and so the jurisdiction of the Court is not enlivened.

6 The defendants submit that in the event the Court does consider that the deceased had a responsibility to make provision for the plaintiff, such further provision should be made by way of a "small next egg" of approximately $50,000, being in the order of legacies left by the deceased to the plaintiff by earlier wills.

7 The plaintiff was cross examined over parts of four days, Monday 6 June to Thursday 9 June. He called three witnesses in support, who were interposed. These were Mr Duane Eaks, Ms Carol Inglis and Mr Thomas, known as Gavan, MacManus. All were friends principally of the deceased, although they had met the plaintiff in the deceased's company, and became more friendly with him after the deceased's death. Mr Eaks and Ms Inglis are members of a church at which the deceased regularly played the organ. Mr MacManus also shared musical interests of the deceased, and did voluntary work with him. They gave evidence as to what they observed of the relationship between the deceased and the plaintiff.

8 The deceased's children, Melanie, Bronwen and Jonathan (known as Jay), and his former wife, Mrs Phyllis Joan Robins (known as Joan Robins), gave evidence for the defendants, together with the deceased's accountant, Mr Christodoulou. On the first day of the trial, I ruled that certain evidence contained in Jay's affidavit was inadmissible, on the grounds set out in the ruling. On Friday 10 June 2011 I allowed the plaintiff's objection to related evidence sought to be adduced of Mrs Robins orally.

9 This was not a case where the witnesses gave conflicting accounts of the relevant facts, and it is necessary to determine which account is more likely correct. The defendants did not contest much of the plaintiff's account of the externally observable events. They were not in a position to do so, as the plaintiff concedes that the sexual and domestic relationship he asserts between himself and the deceased was concealed from the deceased's family. The defendants rely on inferences of fact to be drawn from the evidence, and the conclusion they say should be reached given the statutory criteria for the making of an award of provision.

10 I consider that all the witnesses gave their evidence honestly, and to the best of their abilities. I have considered in detail what documentary or third party evidence exists, in particular as to whether such evidence corroborates the plaintiff's account, which would otherwise largely rely on his testimony alone. I have not accepted the plaintiff's case that at the time of the deceased's death he was his domestic partner, although I have found that he was in the past, and he and the deceased intended to resume that form of relationship. Notwithstanding that I do not consider the plaintiff's characterisation of the relationship as at the deceased's death is established, I have concluded that the plaintiff has established that the deceased had a responsibility to make provision for him, and so jurisdiction to make an award is established. I consider that such award should be in the sum of $300,000, to be borne as to two thirds by Melanie and Bronwen, and as to one third by Andrew and Jay.

11 The power to afford provision to an applicant, whether or not already a beneficiary under the will, is afforded by Section 91 of the Administration and Probate Act 1958 ('the Act"). The section provides as follows:

(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

(2) The Court must not make an order under subsection (1) in favour of a person unless -

(a) that person has applied for the order; or

(b) another person has applied for the order on behalf of that person.

(3) The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -

(a) his or her will (if any); or

(b) the operation of the provisions of Part I, Division 6; or

(c) both the will and the operation of the provisions -

does not make adequate provision for the proper maintenance and support of the person.

(4) The Court in determining -

(a) whether or not the deceased had responsibility to make provision for a person; and

(b) whether or not the distribution of the estate of the deceased person as effected by -

(i) the deceased's will; or

(ii) the operation of the provisions of Part I, Division 6; or

(iii) both the will and the operation of the provisions -

makes adequate provision for the proper maintenance and support of the person; and

(c) the amount of provision (if any) which the Court may order for the person; and

(d) any other matter related to an application for an order under subsection (1) -

(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;

(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(j) the age of the applicant;

(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

(n) the liability of any other person to maintain the applicant;

(o) the character and conduct of the applicant or any other person;

(p) any other matter the Court considers relevant.

12 Consideration of a claim under s 91 is undertaken in two stages. The first stage grounds the Court's jurisdiction and requires the plaintiff to establish both that the deceased had a responsibility to make provision for him or her (s 91(1)) and that the will has not made adequate provision for his or her proper maintenance and support (s 91(3)). If the plaintiff so establishes, the Court moves to a discretionary consideration of the proper amount of further provision. In respect of both stages, the Court is required to consider the factors enumerated in s 91(4).[1]

13 In reasoning from the s 91(4) factors to a conclusion that the testator had a responsibility to make provision for the claimant and had failed to make adequate provision for his or her proper maintenance and support, the Court is required to apply a standard or make a value judgment,[2] often expressed as the "moral duty" of the testator. What is considered a testator's moral duty will depend on prevailing community attitudes.[3]

14 In this case the will made no provision for the plaintiff. Accordingly, if the Court is satisfied that the testator had a responsibility to make provision for the plaintiff, there is no contested issue as to whether adequate provision has been made and jurisdiction to make an award is established. In undertaking the next stage i.e. determining what further provision to order, the Court is required to exercise its discretion so as to not "transgress unnecessarily upon the (testator's) freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just (testator)".[4]

15 The Court determines whether or not the testator made adequate provision for the claimant by consideration of the relevant facts and circumstances as at the testator's death. The question of what further provision to order is determined having regard to the facts and circumstances at trial.[5]

Is it necessary to establish a de facto relationship?

16 At the heart of this case is determination of the nature of the relationship between the deceased and the plaintiff. It is evident from the words of the section that s 91 does not require the plaintiff to establish a relationship of any particular character. Previous cases have confirmed that the section extends to relationships other than those of blood or marriage.[6] Accordingly, it was not necessary for the plaintiff to attach a label to his relationship to the deceased to ground his case. The plaintiff has, however, in his evidence put his case squarely as one of a particular kind, being a de facto or domestic relationship, and the defendants have responded to the claim as so put. As set out in more detail below, I accept the plaintiff's evidence that this is how he saw the relationship. Characterisation of the relationship in this way also carries the advantage of a body of previous determinations in relation to further provision for de facto or subsequent spouses as against the children of the first marriage. The quantum of the claim the plaintiff makes if responsibility is established draws on those cases. Attaching a label may also have the advantage of more readily invoking community expectations in relation to a relationship of that kind. As set out earlier, the Court is required to have regard to community expectations in determining if the testator had a responsibility to provide for the plaintiff.

17 In oral closing submissions, counsel for the plaintiff submitted, by way of what he described as a "fallback" argument, that even if the Court was not satisfied that the plaintiff and deceased were domestic partners at the deceased's death, nevertheless the relationship between them was such that the deceased had a responsibility to make provision for the plaintiff's proper maintenance and support so as to enliven the Court's jurisdiction. He appeared to concede that if this was the view the Court took, then the amount awarded may be less, but did not put a figure on what was sought in that eventuality.[7]

18 The defendants concede that the legislation does not require the relationship to be of any particular kind, but submit that the case was put as one of a de facto relationship, and deny that the plaintiff has proved such a relationship.[8] The defendants say that in determining whether or not the relationship was of that character the Court can draw assistance from the definition of "domestic relationship" in section 35(1) of the Relationships Act 2008, and the list of possible factors to be considered in determining if such a relationship exists as set out in s 35(2). I will return to this submission shortly.

19 The law as it applies to a plaintiff who can be described as the domestic partner of the deceased was most recently considered by the Court of Appeal in Forsyth v Sinclair ("Forsyth").[9] In that case the Court of Appeal dismissed an appeal from a decision affording Ms Sinclair one half of the deceased's estate on the basis of the intimate sexual and emotional relationship between them. The appellant, the defendant executor and the deceased's brother, had contended that Ms Sinclair was merely one of the deceased's friends. Significantly, Ms Sinclair and the deceased did not live together, and, indeed, Ms Sinclair continued throughout their relationship (of about 12 years in length) to live in the same home as her estranged husband, with their children. The trial judge found that notwithstanding this the plaintiff and the deceased were for the years immediately preceding his death on terms of "deep and intimate affection" and, of crucial significance in his determination, "the shaping force in the lives of each over this long period, which only ended with Mr Forsyth's death, was their love for each other." He found that they had "shared, on a daily basis over many uninterrupted years... nearly all the most significant moments of their lives."[10]

20 In the Court of Appeal Justice Neave, with whom Justices Redlich and Habersberger agreed, in the case of Justice Redlich in more guarded terms, rejected the contention of counsel for the appellant that the existence of the responsibility to make provision expressed by s. 91(1) requires the existence of a relationship akin to a family or blood relationship. Justice Neave summarised the question as to whether a testator had a duty to make adequate provision for the proper maintenance and support of an applicant under Part IV as being "ultimately a value judgment", but noted that the circumstances in which such a duty will be found are "not static, but evolve in accordance with prevailing community views and attitudes."[11]

21 Having indicated that the responsibility to provide is not limited to particular forms of relationship, however, her Honour adopted with approval the caution expressed by Justice Kaye in Unger v Sanchez[12] to the effect that it would be a rare or exceptional case in which a duty to provide was found in respect of a person who was a neighbour or close friend, even if that person had given invaluable service to the testator. Her Honour noted that the plaintiff/respondent in the instant appeal had not, however, been "simply one of the (deceased's) close friends" and that although the trial judge had not explicitly found that the plaintiff and the deceased in that case were de facto partners, their relationship could have been so described. In a passage relied upon by the plaintiff in these proceedings, she stated:

It seems to me uncontroversial that, according to current community standards, a de facto partner may have a moral duty to make adequate provision for the proper maintenance and support of the other partner.[13]

22 The factors considered by Justice Neave to be of significance in determining that the relationship there in question could have been described as a de facto one were that the parties had an exclusive sexual relationship, they were recognised as partners by their joint friends and her family, (although the deceased had denied any romantic relationship to his own family), their relationship was longstanding (12 years) and they planned to marry. She noted that a de facto relationship may exist even if the couple have separate residences and are not financially dependent on each other. [14]

23 The plaintiff in Forsyth had given evidence that in the years before the deceased's death she had stayed at his house four or five nights a week, and over most of the weekend. They had entertained friends together at her home, socialised with her family, gone to social events with friends and were known by those friends as a couple. She said that they had agreed not to tell his family of their relationship, but called twelve other witnesses who gave corroborative evidence to the effect that she had been in a close and intimate relationship with the deceased, and they had treated each other as partners. This evidence was clearly regarded as of significance to the Court of Appeal in dismissing the appeal. In concluding that the trial judge did not err in accepting the plaintiff's evidence that she and the deceased had decided to keep their relationship private from his family, Justice Neave noted that "If no one else had been aware of the relationship, (the plaintiff's) evidence would not have been credible, but this was not the case."[15]

24 Given the way her judgment is structured it appears to me that Justice Neave, with whom Justice Habersberger agreed, found comfort in disposing of the appeal by describing the relationship there in question as akin to a de facto one. Notwithstanding this, she went on to state that this characterisation was not essential to the disposition of the appeal. She held that even if the plaintiff and deceased were not accurately described as a couple with a close and committed relationship who did not live together, the trial judge did not wrongly conclude that their commitment to each other and the other matters he was required to consider under s 91(4) gave the Court jurisdiction to make an order.[16] These matters included evidence that the deceased had indicated he intended to provide for the plaintiff if she survived him, although he did not change his will in her favour. In relation to that matter, Her Honour held:

Whilst Part IV of the Act does not give the Court power to make an order simply to give effect to the intention or promise of a deceased person to provide for someone else, such a statement of intention is not an irrelevant consideration...A statement made by the deceased about the provision he or she has made or intends to make for the applicant may be taken into account under s 91(4)(p).[17]

25 Justice Redlich agreed that the factual findings made by the trial judge were open to him on the evidence, and that these findings were sufficient to confer jurisdiction on the Court to make the order that it did. Justice Redlich noted, however, that he considered the instant case "to be at the margin" of cases where a duty to make provision could be found because the relationship between the plaintiff and the testator lacked a number of features generally found in a de facto relationship. He cited the factors that were absent as being lack of common residence, lack of financial dependence by the plaintiff on the testator, and that the plaintiff had made no financial or other significant contribution to the testator's circumstances. He stated:

Ordinarily a moral duty to provide maintenance and support would not arise unless one or more of such indicia of responsibility were present. But the absence of such features in a relationship does not preclude the possibility that such a moral obligation may arise.[18]

26 Justice Redlich identified the following findings as having been sufficient to confer jurisdiction in that case:

• that the plaintiff and deceased had a long standing intimate and caring relationship

• they shared on a daily basis nearly all the significant moments of their lives

• the plaintiff gave the testator some level of care and support

• their emotional and spiritual bonds were very strong

• they had made a commitment to living together in the future

• the testator had said that he intended to make provision for the plaintiff in the event she survived him.

27 I conclude from Forsyth that it is uncontroversial that the duty to make provision can be found in the case of a de facto relationship, and, that further, such a relationship may be found to exist notwithstanding the absence of shared residence, shared finances and disclosure of the relationship to the family of the deceased. Further, promises to make provision are a relevant factor to be considered under s 91(4)(p). I also infer, however, that caution needs to be exercised in relation to finding a duty to provide where a non family relationship cannot be fairly described as a de facto one.

Relationships Act 2008

28 The defendants seek to rely on the factors enumerated in the Relationships Act 2008 ("Relationships Act") as giving guidance as to when a de facto relationship, there described as a domestic relationship, may be found to exist for the purposes of Part IV. Counsel for the plaintiff did not demur from this course, and indeed may be taken to have agreed with it because he relied on the decision of Justice Pagone in Re the Estate of Sigg (deceased)[19] ("Sigg"). That decision concerned whether or not the applicant was the domestic partner of the deceased for the purposes of qualifying under an intestacy. In that case, Justice Pagone adopted views earlier expressed by Justice Cummins in Dow v Hoskins[20] that "the determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex". Justice Pagone added:

I agree with those observations and would add that it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities. That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove. That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the provisions of s 51 should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing between legally married couples. [21]

29 In Sigg, Justice Pagone noted in relation to the applicant's case that "there are some aspects of the relationship recounted by her that might put her, at best, in the position of his (the deceased's) closest friend at the time of his death with whom she enjoyed physical relations. The relevant provisions do not purport to confer upon a deceased's closest friend the rights and expectations of a domestic partner."[22] The relationship there subsisted over twenty years, but the parties did not live together physically. Nevertheless, Justice Pagone determined that the relationship was a domestic relationship on the basis that the evidence of the applicant was supported by independent third parties who testified that they regarded the applicant and deceased as a couple.

30 Sigg concerned an application for recognition as the "partner of an intestate" for the purposes of distribution to her on intestacy under s 51 of the Act, not Part IV. "Partner" as defined in section s3 of the Act is the person's spouse or "domestic partner", and "domestic partner" is defined in terms which directly import sections of the Relationships Act. Thus for intestacy, the criteria established by the Relationships Act as to the determination of domestic relationships are directly relevant. There is no such direct importation of these criteria into Part IV, which does not require a relationship to be of any particular type, but I accept that they give assistance. I would add that Sigg was an unopposed application, and so caution needs to be taken in my view in relying on it as authority for the proposition that a relationship may be a domestic one notwithstanding that the parties did not live together for a period of up to twenty years.

31 The Relationships Act recognises different types of relationships for different purposes. For the purpose of court ordered financial support, which is the most analogous to an application under Part IV, s 39 of the Relationships Act recognises two forms of domestic relationship- a registered domestic relationship or a "relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender)". In determining whether a domestic relationship, which is not a registered domestic relationship, exists s 39(2) of that Act requires all the circumstances of the relationship to be taken into account, including such of the matters specified in s 35(2) as are relevant. Section 35(2) sets out a list of factors as follows:

(a) the degree of mutual commitment to a shared life;

(b) the duration of the relationship;

(c) the nature and extent of common residence;

(d) whether or not a sexual relationship exists;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

(f) the ownership, use and acquisition of property;

(g) the care and support of children;

(h) the reputation and public aspects of the relationship.

32 I will bear all these factors in mind, which are reflected in the Court of Appeal determination in Forsyth, in my determination as to the nature of the relationship.

33 Counsel have also referred me to a number of previous cases where the central issue has been whether or not the applicant for provision was in a domestic relationship with the deceased. The factors identified in those cases are essentially the same as those identified in Forsyth and the Relationships Act. With necessary caution to allow for different legislative schemes in different states, I have taken those cases into account, even if not specifically referred to in these reasons.

Is it significant the relationship was said to be a homosexual one?

34 The parties have suggested that this may be the first case in which a plaintiff seeks further provision as a same sex domestic partner. Certainly I was not referred to any previous similar case in Victoria. The same law applies, however, whether the relationship was heterosexual or homosexual. There is no restriction in s 91 of the Act to heterosexual relationships, no such restriction in the case of a "domestic relationship" in the Relationships Act and no distinction made on the basis of sexual orientation in either. The law is to be applied having regard to community standards, but no counsel suggested that this would today require a different approach in the case of a homosexual, as opposed to a heterosexual relationship. Indeed, the defendants assumed community acceptance of homosexual relationships by their submission that the plaintiff's account of the relationship should not be accepted because neither he nor the deceased disclosed a homosexual relationship to their families.

35 However, I do not consider the fact that the asserted relationship was a homosexual one to be irrelevant, and, indeed, it may have considerable factual significance. First, a homosexual couple does not have the option of publicly confirming the relationship by marriage. In Sigg, Justice Pagone noted that caution needed to be taken in finding a domestic relationship where the heterosexual partners had had that option.

36 Next, while the legislation today makes no distinction between homosexual and heterosexual relationships, and there is more widespread community acceptance of homosexual relationships than in previous times, these are comparatively recent developments. As an illustration, the law was only amended to allow homosexual de facto partners as well as heterosexual to make application for adjustment of property interests, the very law which the defendants say gives guidance as to when a de facto relationship exists, in 2001.[23] In particular, if indeed the relationship was a sexual and romantic one, embarrassment on the part of the deceased and the plaintiff as to its homosexual nature or consciousness that the relationship may not be accepted by their families or the community may provide explanation for their failure to openly acknowledge the relationship, the actions they took to conceal its true nature, and, in the case of the deceased, his denials that it was a sexual relationship.[24] I discuss the nature of the relationship and this issue further below.

37 The deceased was born on 26 March 1926 and so was aged 82 years at his death. He was previously married to Phyllis Joan Robins (called by the defendants' counsel "Joan" in these proceedings) and there were four children of that marriage. The first defendant, Melanie, was born 2 September 1958 and accordingly is now aged 53 years. She is married with two children, April, born 20 October 1978 and Jamie, born 1 April 1988. The second defendant, Bronwen, was born 22 April 1960 and so is now aged 51 years. She is married but now separated and has two children, Alisha, born 6 February 1992 and Jordan, born 16 October 1998. The third defendant, Andrew, was born 17 November 1961 and so is now aged 50 years. He is profoundly mentally disabled. Prior to his death the deceased and Mrs Robins were the joint administrators of the estate of Andrew Robins. On 3 November 2008 the Victorian Civil and Administrative Tribunal appointed Mrs Robins as Andrew's sole administrator. The fourth defendant, Jonathan, (also known as Jay) was born 16 September 1972 and so is now aged 39 years. He has two children, Leroy, born 24 July 2002 and Oden, born 16 May 2005.

38 I will call the defendants, the deceased's children, by their first names in this judgment, without intending any disrespect. On occasion when the evidence describes the plaintiff by his first name it is usually as "Bhoy", which was the deceased's name for him.

39 The deceased's final will was dated 13 September 2005. The evidence discloses three earlier wills, dated 3 November 1989, 21 January 1994, and 9 June 1999. The deceased left legacies to the plaintiff in two of these four wills- the 1989 will (a legacy of $30,000) and the 1999 will (a legacy of $50,000). He made no provision for the plaintiff in the last will, or in the 1994 will. I discuss whether any conclusions can be drawn from this pattern when I discuss the statutory criteria in detail later in this judgment.

40 There is no dispute that the deceased's net estate is $2,501,049. As at the trial, some of the estate had been called in, including the deceased's former home at 9 Joynt St which was sold on 30 May 2009 for $651,000. The estate assets include the deceased's shares in Glen Linton Pty Ltd, which was solely owned by him at his death. The shares are valued at $891,291 in the company accounts. A principal asset of that company is the property at 32 Joynt St, in which Melanie and her family have lived for many years. That property has not been sold and is valued at $800,000 in the company accounts.

41 The defendants' closing submissions were to the effect that each of Melanie and Bronwen would receive under the will the sum of $587,762 and the trust for Jay and Andrew would have a capital of $1,175,524, subject in each case to further costs and expenses of the estate. These figures were not the subject of challenge by counsel for the plaintiff in his closing submissions, and so I will take the cautious approach of considering them to be correct, but I am unclear as to how they are arrived at. One quarter of the net estate of $2,501,049 is $625,262.25, not $587,762. It may be that some account has been taken of legal costs in the defendants' analysis.

RELATIONSHIP BETWEEN THE PLAINTIFF AND THE DECEASED: EVIDENCE

42 The objective facts of much of the plaintiff's evidence was not contested by the defendants. What was in contest was his evidence that his relationship with the deceased, their father, was a romantic and domestic one. As the plaintiff concedes that such a relationship was concealed from the deceased's family, the defendants were not in a position to directly adduce evidence of what occurred between the plaintiff and deceased behind closed doors. They rely on other evidence and the inferences to be drawn from the objective facts as to the nature of the relationship between the plaintiff and the deceased. In what follows, I draw principally on the plaintiff's evidence and make findings in accordance with that evidence unless otherwise indicated.

43 The plaintiff was born in the Philippines on 27 December 1960, the fourth of a family of nine children. He is now aged 51 years. His evidence is that he met the deceased in the Philippines in August 1978, when he was 17 years old. The deceased was 52 years old at this time. The plaintiff says that the deceased approached him in a museum, they became friendly and commenced a sexual relationship about a week later. The plaintiff says this was his first homosexual relationship, and he kept it secret from his family, with whom he lived, because he was embarrassed. He agreed in cross examination that homosexuality was disapproved of in Filipino culture and by his family. He says that the deceased visited him in the Philippines in each of the following 5 years for about three weeks at a time. During these visits, their sexual and emotional relationship continued and "we lived together as a couple in all senses of the word".[25]

44 The plaintiff's evidence is that he came to Australia for the first time in April 1983 on a tourist visa for three months. The deceased paid for the airfare. The plaintiff says that he and the deceased lived together at Joynt St, went camping with the deceased's children, visited the deceased's brother in country Victoria and the deceased's mother in a nursing home. The plaintiff says that he and the deceased lived together in a "genuine domestic relationship" at this time, sharing a bed, a sexual relationship, meals, chores and activities. The deceased also visited him with Jay in the Philippines in late 1983 for Christmas.

45 The defendants in broad terms agree that these visits occurred, but dispute some of the details. For example, Bronwen says that she lived in New South Wales from 1980 to 1987, and so did not go camping with the plaintiff and her father in 1983, although she did go camping once with the plaintiff, her father and her brother Jay in 1988 or 1989. Jonathon agrees that his father took him to the Philippines when he was a child, where he met the plaintiff who introduced him to his family and some other children, but says this was in 1982. He also agrees that the three of them went on camping trips and outings, sometimes with Andrew and once with Bronwen.

46 The plaintiff came to Australia in December 1985 on a six months visitor's visa, and immediately before its expiry in June 1986 applied in Australia for resident status on humanitarian grounds, being his domestic and sexual relationship with the deceased. It was put to him in cross examination that he had not ticked the box on the form relating to a de facto relationship with an Australian citizen, and he said this was because it was his understanding at the time that the only way he could apply for resident status on the basis of a homosexual relationship was on humanitarian grounds.[26] The deceased supported the plaintiff's application and, indeed, internal immigration minutes exhibited to the plaintiff's affidavit refer to attempts by the deceased to secure the entry of the plaintiff since 1983.[27] The plaintiff and the deceased were interviewed separately for this application, and the immigration documents exhibited to the plaintiff's primary affidavit[28] record that they both confirmed the relationship, and described it as fulfilling and intended to last indefinitely. They both said that their sexual relationship was not known in the general community or gay community, although the deceased said that his family accepted the plaintiff's presence in his home, and his former wife and possibly his elder daughter were aware of the true nature of the relationship.

47 The Department of Immigration officials accepted their account and the plaintiff was granted a temporary entry permit in January 1987, which was extended on a number of occasions to December 1989. In January 1990 his application for permanent residence was approved and in 1992 the plaintiff became an Australian citizen.

48 As is the case with most of the evidence about the relationship between the deceased and the plaintiff, the parties agree on the broad external events of this time, but disagree as to the nature of the personal relationship between the deceased and the plaintiff. The defendants say that the plaintiff was introduced to them in 1983 as a friend of their father's, who had looked after their father when he was ill in the Philippines, and someone their father wanted to help to a better life in Australia. Bronwen deposes that her father had a history of community work, in particular helping migrants to assimilate in Australia, and so assistance to the plaintiff was not an isolated event.[29]

49 Melanie and Mrs Robins were aware that the deceased was sponsoring the plaintiff's application for permanent residence, as they were each asked by him to give a reference for the plaintiff. Each declined. Mrs Robins deposes that she was not contacted by the Immigration Department to confirm the statements made by the deceased that she was aware of the sexual relationship and is adamant that she was not so aware. Indeed, the children and Mrs Robins all saw the deceased regularly (in Bronwen's case after 1987) and say they did not know of any sexual relationship between the deceased and the plaintiff. They viewed the plaintiff as a friend who, in Bronwen's words, "became a lodger in his house in exchange for keeping the house and garden in order"[30], in Melanie's words "a friend of our father's who stayed with him from time to time"[31] without anything to indicate an emotional attachment between them, and in Jay's words "they were just mates".[32] Mrs Robins says that when the plaintiff commenced living with the deceased at Joynt St after he came to Australia permanently in 1985 to her observation he was there "as a boarder", was paying board and expected to help with housekeeping and gardening as part of his board[33]. They all deny any knowledge of the deceased's homosexual sexual orientation until many years later and stress the age difference between the deceased and the plaintiff.

50 The plaintiff agrees that the sexual and domestic relationship he describes was not made explicit to the deceased's family and that the deceased told his family that he, the plaintiff, was a friend. He agreed in cross-examination that he never told the deceased's family that he, the plaintiff, was homosexual and the deceased did not tell them that he, the deceased, was homosexual and that he, the plaintiff, never told his own family about the homosexual nature of the relationship.[34] He said that the deceased did not "act gay". The plaintiff says he thought the family may have realised the real nature of the relationship because whenever they came to 9 Joynt St he and the deceased were together, and on occasion when Mrs Robins, Melanie or Bronwen came to 9 Joynt St very early, the deceased would not be able to answer the door immediately because he and the plaintiff were together in bed.[35] The plaintiff said that the relationship was "open to a lot of people", being people they socialised with including those in the New Wave Church.[36]

51 He agreed in cross-examination that he had his own bedroom at Joynt St, and had had from his first visit in 1983[37] but says it was for show and that he and the deceased in fact shared the master bed. The plaintiff in his primary affidavit had referred to having a "faux" bedroom, but says this was "set up" when his cousin Andrew came to Melbourne to study, and lived at Joynt St. He says "I pretended (this) was my bedroom so that our relationship would not be obvious to Andrew"[38], but in fact his same sex relationship with the deceased continued. The plaintiff in his oral evidence referred to a cousin Nilvin who lived with he and the deceased at Joynt St between 1991 and 1995.[39] I infer this is the same person, although the affidavit does not indicate such a lengthy stay.

52 The plaintiff gave evidence that a cousin Andrew, and then his mother Venus visited Melbourne in 1995. It is unclear if this is the same cousin, who had previously been living at Joynt St. The plaintiff rented a property for them in Fairfield, and then at 4/13 Ellesmere Parade Rosanna. The occupancy of Ellesmere Parade was between July 1995 and June 1996. The defendants sought to suggest that the plaintiff lived there too, and this is indicated an end to the plaintiff's relationship with the deceased prior to April 1996. I accept the plaintiff's evidence that he slept there on some nights during the week, until he went to Mount Buffalo in April, but Leon stayed with him on those occasions. A friend of his occupied the flat after his aunt returned to the Philippines.

53 The plaintiff says that he transferred everything he had owned in the Philippines to Joynt St in 1986. In cross-examination he agreed this was clothes, souvenirs and personal items, not furniture or electrical items. He says that he and the deceased "went out, and did things, as a couple. We treated each other's household property as mutual."[40] Under crossexamination he gave evidence that he was financially dependent on the deceased from December 1985 until he received a temporary entry permit which enabled him to work. In cross examination this was said to be a two year period to 1988, but Exhibit JE 19 to his affidavit of 6 October 2009 establishes that the permit was issued in January 1987. During this period the plaintiff said in cross-examination that he did the cooking, cleaning, gardening and driving for Joynt St and agreed that he received free accommodation but denied that the deceased treated him like a servant, and said he undertook those tasks as the deceased's partner, as in a husband and wife relationship.[41]

54 The plaintiff commenced full time work after January 1987 at the Regent Hotel as a room attendant and later as housekeeper/supervisor. He moved to the Adelphi Hotel as a housekeeper in December 1992 to April 1996. He continued living with the deceased at Joynt St.

55 He says that when working at living at Joynt St during this period he contributed all the money he earned to joint expenses such as maintaining the home, paying the bills, buying groceries.[42] There is not a great deal of evidence in chief from the plaintiff as to the detail of the life he shared with the deceased at Joynt St in terms of their daily life and activities, to flesh out his assertions as to the nature of the relationship, but nor was he asked about this in cross examination. The evidence establishes that other than the initial period before he received a work permit, the plaintiff was not financially dependent on the deceased and they did not share funds. The defendants have established that there were a number of loans made by the deceased to the plaintiff, which he appeared initially not to recall, but I accept the plaintiff's evidence that all these loans were repaid. The defendants have also put into evidence[43] an undated form of will apparently executed by the plaintiff by which he appoints the deceased his executor and which provides for the balance of his estate after repayment of a loan from Glen Linton Pty Ltd to purchase a car to be given to his brother. The plaintiff's evidence is that the deceased typed up this form of will early on in their relationship[44], and I infer that it was likely drawn up and executed at the time of a loan from the deceased (or his company Glen Linton Pty Ltd) to the plaintiff to enable him to buy a car. The plaintiff's evidence is that the loan was repaid and I accept that evidence.

Working in Australia away from Melbourne 1996-2000

56 In April 1996 the plaintiff applied for and obtained a position at the Mount Buffalo Chalet, about two hours drive from Melbourne, which position he retained until September 1999. He said in cross examination, although not in his affidavit, that had he lost his job at the Adelphi and applied for another hotel job in Melbourne but could not obtain one. At that time the plaintiff was 35 years old and the deceased 70, and they had been living together for over 10 years. It was put to the plaintiff in cross examination that he wanted to leave the deceased and work away because "the passion had faded", but the plaintiff denied this.[45] He agreed that the deceased could have supported him, had he stayed in Melbourne, but said that "for me it's not worth living if I don't work".[46]

57 The position at the Mount Buffalo Chalet was also a more senior role and the plaintiff was better paid (his salary rose from $29,000 p.a. to $32,000 p.a.) and he agreed these matters were significant to him. The plaintiff was also frank in his evidence, in re-examination, that the deceased asked him at this time if he would undertake some retraining and change careers with a view to staying in Melbourne. The plaintiff did not wish to do so as he was enjoying earning.[47]

58 The plaintiff asserts that he would return to Joynt St "every two weeks or so" for the weekend and that the deceased visited him at Mount Buffalo or came to collect him on a number of occasions during the three years. It was put to him that in fact he did not visit Melbourne as regularly as this, particularly during the ski season when weekends are busy, but he reiterated his evidence that he did. His evidence as to returns to Melbourne is corroborated in part by Mr MacManus who, by chance as he did not then know the plaintiff although he was already friendly with the deceased, picked him up hitchhiking down from Mount Buffalo. I accept the plaintiff's evidence that he returned regularly to Joynt St while working at Mount Buffalo.

59 In September 1999 the plaintiff successfully applied for an executive housekeeper position at the Carlton Hotel in Darwin. His salary rose from $32,000 p.a. at Mount Buffalo to $45,000 p.a. at the Carlton Hotel, a considerable increase. He said, however, that he "couldn't deal with being so far away from Leon"[48] and it was expensive to fly back and forth, so in 2000 applied for and obtained a job at the Rydges Hotel in Melbourne at the same salary.

60 The plaintiff worked at Rydges for eight months, and then took up a contract job at the Mercure Hotel. When that contract ended in 2002 he says he was unable to find a another job "anywhere in Melbourne or in Australia", even when he started applying for more lowly positions to stay in Melbourne.[49] He was unemployed at this time for a period of three to four months and financially dependent on the deceased.[50] He was also unemployed, on his evidence for about eight months, in 2004, but otherwise was not financially dependent on the deceased from 1987 when he was able to work.[51] The plaintiff and the deceased had a shared bank account from 1986 when the plaintiff was not working into which the deceased had deposited some funds, and into which the plaintiff deposited some of his salary once he commenced work, but the plaintiff says that from 1996 he and the deceased had separate accounts. The plaintiff agreed that he was never a signatory to any of the deceased's own accounts.[52]

61 The plaintiff's evidence is that after the Mercure contract ended and he was unable to get a job in Melbourne he applied for and obtained a job in the Maldives. He only stayed three to four months because of the expense of returning to Melbourne, which he did twice during that period. In early 2003 he returned to Melbourne and shortly thereafter applied for a position with a cruise ship line, Carnival Lines, based in Miami, Florida. In 2004 his evidence is that at the deceased's request he resigned and returned to Melbourne, and was out of work for eight months. He said because "it feels very bad not to have work" he started looking for a job in Melbourne, but was only able to get a job on the cruise ships.[53] Thereafter he worked in contract positions as a housekeeper for Disney Cruise Lines, until the deceased's death in September 2008. When a contract ended, he returned to Melbourne and Joynt St for a period, and also spent time with his family in the Philippines.

62 The plaintiff's case is that he was away from Melbourne only because he could only obtain work overseas, and it was important to him to work, but his absence did not signify an end to his committed relationship with the deceased-they continued to be domestic partners. For example, he says that when he was in Melbourne he would pay sometimes when he and Leon went out, or for groceries, and sometimes Leon would: "We did not keep count and we did not keep tabs like friends would...We did not 'split' expenses as mere housemates would".[54] He says everything he owned he left at Joynt St while working overseas.[55] He did acknowledge in re-examination that Leon had asked him to stay "at home" (the plaintiff always referred to Joynt St as "home" in his evidence). Consistently with this case, counsel for the plaintiff in his closing submissions emphasises the continuing emotional connection between the plaintiff and the deceased from 1996, rather than the actual periods of time the plaintiff physically lived with the deceased from that time.

63 For the defendant's case, the plaintiff was cross examined at length in relation to his returns to Australia from working on cruise ships. His evidence early in his cross examination was that he would return to Joynt St every three or four months, and stay three weeks at Joynt St. He would then visit his family in the Philippines, before returning to Joynt St to fly back to the United States on the return flight provided by his employer. He said "I divide my time equally between Leon and my family" (emphasis added). [56] Later in his cross examination, which was very extensive and continued over four days, he said he spent "most of my vacation time with Leon" and that after 90 days of work, he spent the first 30 days with Leon and then "some time" with his family before returning to Melbourne to fly back to work (emphasis added).[57] At most then, given the length of his employment contracts, and his pattern of spending time with his family in the Philippines as well, the plaintiff was able to return to Melbourne two or three times only each year from November 2004, during which times he generally stayed between three and four weeks at Joynt St. In other words, on this evidence of the plaintiff his pattern was to physically live with the deceased at Joynt St between two and three months of the year only in the years before the deceased's death.

64 In closing submissions, counsel for the first and second defendants (whose submissions counsel for the third and fourth defendants adopted) conceded that when the plaintiff returned to Joynt St in between employment contracts he stayed for up to a month at a time with Leon, but stressed that he then proceeded to stay with his family for an equivalent time. The defendants' case is that at least from 1996, when the plaintiff took up work at Mount Buffalo and ceased living full time in the deceased's home, any de facto relationship between them was at an end.

65 The plaintiff did not in chief adduce detailed evidence of the number and timing of occasions on which he returned to Australia and Joynt St after 2003. The defendants did not seek in cross-examination to test or support the plaintiff's evidence as to his general pattern by detailed comparison with what objective evidence exists. The plaintiff in re-examination only gave detailed evidence as to his returns in 2007 and 2008, and the defendants took no objection nor did they seek to further cross-examine him.

66 Having regard to Forsyth and the factors to be considered by the Relationships Act in determining if persons are in a domestic relationship, the amount of time the plaintiff spent physically living with Leon is clearly relevant to, though not determinative of, the nature of the relationship. One difficulty is that there is no single piece of objective evidence, such as passport stamps showing entries and exits from Australia, to establish when the plaintiff returned. The plaintiff's current and earlier passports are in evidence but it is apparent (and the defendants did not otherwise contend in their closing submissions) that the passports do not record every entry into Australia. There is, for example, no entry recording the plaintiff's return to Australia after the deceased's death, although it is conceded he did return. Indeed, in the period 2002-2008 I could locate only two records of arrival in Australia, being on 22 October 2003 and on 11 December 2004.

67 The passport does, however, contain a number of arrival stamps into the Maldives, the Philippines and the United States, particularly from 2005, and so a pattern of travel against which the plaintiff's oral evidence can be tested. Counsel for the plaintiff used the passport entries as the foundation for his questions to the plaintiff in re-examination about returns to Australia in 2007 and 2008. The dates and contents of emails sent by the deceased to the plaintiff and others put in evidence by both parties could also provide some corroborative evidence. The plaintiff confirmed in re-examination that the deceased sent him emails only when he, the plaintiff, was overseas and the deceased was at Joynt St. The parties did not themselves use the emails in this way, to corroborate the plaintiff's evidence as to his returns to Australia. They relied on the content of the emails principally to establish the nature of the relationship between the plaintiff and the deceased. Nevertheless, the emails are in evidence, and given that the plaintiff gave evidence in re-examination as to the significance of email dates in general, and specific evidence based on passport entries for 2007 and 2008, I have considered both the emails and the passport entries in relation to inferences that could be drawn as to the plaintiff's periods in Australia.

68 There are some inconsistencies between what is suggested by the dates of the emails with the plaintiff's evidence, in particular in relation to early 2007, but these are not major. In broad terms, I find that the emails and passport entries corroborate the plaintiff's evidence, although the pattern of travel suggested by the passport entries is equal time in the Philippines as in Australia in between work contracts, rather than less. There were some variations from year to year as set out below. A schedule of the passport entries from 2002 is Annexure A to these reasons, and a schedule of emails from the deceased to the plaintiff is Annexure B.

69 The plaintiff in his primary affidavit deposes that his first job with Carnival Lines was for nine months, after which he returned to Joynt St in September 2003. His passport records an arrival into Australia on 22 October 2003, apparently after a period of just under three weeks in the Philippines, which he entered on 2 October 2003. He took a two month vacation and "lived at home at 9 Joynt St", continuing to live with the deceased in a "domestic relationship and do all the things that couples do". He says that each of them would pay for things, and they did not keep tabs.[58] He then accepted a job, for which he was "head hunted" with a cruise line operating out of Perth, but stayed only about three weeks.[59] He does not give specific evidence of the date, but it would appear to be the end of 2003 by this time. His passport records an entry into the United States of America on 14 November 2003 which is consistent with this evidence.

70 Exhibited to the plaintiff's primary affidavit is a Western Union record that he had sent money to the deceased, apparently from Miami in early January 2004.[60] The plaintiff says he returned to Melbourne in April 2004, because he had heard the deceased had fallen out of a tree while pruning.[61] The defendants say this accident occurred much earlier.[62] The plaintiff's evidence is that he then, at the deceased's request, remained in Melbourne unemployed for eight months, but took a job with Disney Cruises operating out of Florida in November 2004 as "money was very tight".[63] He said in his affidavit and affirmed in cross examination that the deceased did not want him to go.[64]

71 The sole passport entry for 2004 is arrival in Australia on 11 December 2004, which is not directly accounted for in the plaintiff's oral evidence. The passport records entry to the United States of America on 13 December 2004, which is consistent with his evidence that he accepted another overseas contract in November.

72 The defendants have put into evidence multiple emails between the deceased and a Mr Amper. The emails were all sent in 2004. The first of the emails in evidence is dated 24 February 2004, and the last 4 October 2004.[65] They record that the deceased and Mr Amper first met through the internet and later met in person in the Philippines.[66] The emails suggest a romantic relationship, and record that the deceased gave money to Mr Amper on a number of occasions, and facilitated his entry to Australia on a student visa to study nursing at the Australian Catholic University in Melbourne.

73 The emails refer on occasion to a "friend" who must, from the description, be the plaintiff. The plaintiff agreed the references were to him. Some of the emails were evidently sent while the plaintiff was living at Joynt St, in particular emails from the deceased to Mr Amper of 14, 20 and 25 June 2004. The email of 14 June corroborates the plaintiff's account that he spent time looking for work in 2004 in the words "I still have the friend staying here with me. So far he has not found a job...He's trying to get a job on a cruise ship." There is no earlier reference in the emails to suggest how long the plaintiff had been residing there on that occasion. The email of 20 June records the deceased's annoyance that an email to him from Mr Amper had been opened, and the email of 25 June chides Mr Amper for asking "naughty" (i.e. sexually explicit) questions as "I have little privacy now". The deceased's email of 10 July 2004 to Mr Amper states "My friend has gone". The plaintiff may have then returned to Joynt St for medical reasons, because the deceased's email to Mr Amper of 1 August 2004 states that "the guy who I was telling you about who came here years ago" rang to say he was returning briefly for medical treatment for an eye, and then will return to his job in Perth.

74 The email of 16 September 2004 is one that the defendants specifically took me to, for the purpose of relying on the account the deceased gave Mr Amper of his relationship with the plaintiff. In this email the deceased said that the plaintiff was not gay, and they did not sleep together. I consider caution should be exercised in relying on what the deceased said to a young man he was wooing about his relationship with the deceased. In this email, the deceased tells Mr Amper that his friend may possibly still be at Joynt St when Mr Amper arrives as his work had fallen through. The last emails in evidence refer to Mr Amper arriving to study in Melbourne in October 2004.[67] The plaintiff's evidence is that he was still living at Joynt St when Mr Amper arrived. He returned from Sydney where he had gone for a job interview on the day of Mr Amper arrived and "that night Leon told me that he has a student living in the first bedroom." [68]

75 No questions were put to the plaintiff in cross examination about his movements on the basis of these emails. In general terms the emails confirm that for a period of some months in the middle part of 2004 (or two periods broken by a short absence) up until at least October the plaintiff was living at Joynt St unemployed and looking for work, and I so find.

76 There is no specific oral evidence from the plaintiff about his returns to Australia in 2005 or 2006. His passport shows two entries a year into the Philippines for each of 2005, 2006 and 2007, for three to four weeks on each occasion, with a brief interval after the exits in 2005 and 2006 prior to arrival in the United States. As stated above, there are no entry or exit stamps for Australia, but the pattern shown in relation to the Philippines and the Unites States is consistent with the plaintiff's evidence as to the pattern of travel.[69] The dates for the Philippines do suggest, however, that on most occasions in those years he spent a month at a time there, which, if he spent his first 30 days in Australia, suggests an equal division of time, not more time at Joynt St.

77 The plaintiff has also put in evidence[70] a large number of emails from the deceased, in this case to him and for a later period. The first in evidence is dated 23 December 2005 and the last 25 September 2008. There are over 40 in all. There are no emails from the plaintiff to the deceased in evidence, although a number of the emails from the deceased refer to emails from the plaintiff. The plaintiff said he had given all the emails he had to his solicitors, including his emails to the deceased, and so it is unclear why none of these emails, from the plaintiff to the deceased, are in evidence. In fairness, email may not have been the plaintiff's main form of communication with the deceased. The plaintiff says that he would ring the deceased, rather than email, when he was away, and Mr Eaks, Ms Inglis and Mr MacManus testify that the deceased told them the plaintiff rang him every day. There is also no evidence as to whether or not the emails in evidence are the whole of those from the deceased to the plaintiff, or a selection. Bearing in mind those limitations, however, the emails do assist in determining to some degree when the plaintiff was overseas. I will also consider their contents later in this judgment in relation to the nature of the relationship.

78 The first three, dated 23 December 2005, 24 February 2006 and 8 March 2006, all state or imply the plaintiff is at sea. The next email is dated 9 June and makes reference to "when you were here". This would be consistent with a visit in the first half of the year and a visit to the Philippines either before or after, as evidenced by passport stamps showing arrival in the Philippines on 1 April 2006, departure on 5 May 2006 and arrival in the United States on 12 May 2006.

79 The deceased's 80th birthday was 26 March 2006. The first entry into the Philippines for 2006 is 1 April 2006, and so, if the plaintiff travelled there from Joynt St, he would have been in Melbourne for the deceased's 80th birthday on 26 March 2006. He says he was not,[71] and the passport entry was not put to him, so there may be another explanation.

80 The next passport entries for the Philippines and the United States for 2006 are entry to the Philippines on 30 September 2006, departure from the Philippines on 31 October 2006 and entry to the United States on 10 November 2006. This is consistent with a second visit to Australia in September of that year and the plaintiff's evidence that in between contracts he would first come to Melbourne, then go to the Philippines and return to Melbourne before flying back to join the cruise ship. Such a visit is also implied by the final four emails for that year in evidence, which are dated 3 October 2006 (which asks if the plaintiff had tidied something away), 6 October (which records that the deceased has found it), 23 and 27 December 2006. The contents of the email of 6 October 2006[72] in particular are consistent with the plaintiff having recently visited, and now being in the Philippines visiting his own family. The plaintiff in re-examination confirmed he was in the Philippines at this time.[73] The email of 27 December expresses belated birthday wishes and thanks for a telephone call the previous day. I find that on the probabilities the plaintiff stayed at Joynt St twice in 2006, the first at some point between 8 March and 1 April, and the second in September, with a brief return to Melbourne before leaving for his next contract in November 2006.

81 In response to a query from me, in re-examination the plaintiff was questioned in detail about what inferences could be drawn from the emails sent to him by the deceased and the dates of his returns to Joynt St in 2007 and 2008. He confirmed that the deceased sent him emails only when he, the plaintiff, was overseas and the deceased was at home. On analysis of his evidence in cross-examination, in re-examination and the inferences to be drawn from his passport and the dates of various emails I find the following in relation to 2007 and 2008.

82 The plaintiff arrived in Los Angeles on 10 November 2006 which he said in re-examination was for a ninety day contract, i.e. to mid February 2007. He said in re-examination he then returned to Melbourne at Joynt St and remained for longer than usual between mid February and his entry to the Philippines on 21 May because he had a shoulder injury.[74] This is at odds, however, with what might be inferred from the dates of the emails, bearing in mind his evidence that the deceased only emailed him when he was overseas. Emails in January say that the deceased is missing the plaintiff, ask the plaintiff when he is returning, and state that the deceased is expecting him in February.[75] In March and April the deceased asks the plaintiff when he will be returning "home", in increasingly anxious terms.[76] The email of 2 April, for example, reads "Bhoy, where the hell are you?? I'm getting worried about you. You were supposed to be home by now. Please contact me Love LWG". These emails suggest that the plaintiff did not return to Joynt St until after 2 April 2007. The plaintiff said in cross-examination that he thought he was in Australia in April 2007, because a friend from Mauritius visited in April 2007.[77] The next emails in evidence are five months later in September 2007, then a gap between 30 September and 14 December 2007. The passport records entry into the Philippines on 21 May 2007 and into the United States on 6 June 2007.

83 I consider that the documentary record of the email dates is more likely to be correct than the plaintiff's recollection in re-examination and find that the plaintiff returned for the first occasion in 2007 after 2 April 2007, and travelled to the Philippines on 21 May 2007.

84 The plaintiff said in re-examination that he returned to Joynt St for the second occasion that year, again after a ninety day contract, in October 2007. This is consistent with the gap in emails after 30 September. Also consistent with a second visit (given his evidence as to his usual pattern of travel) are his passport entries which show a second visit to the Philippines for that year between 27 November 2007 and 28 December 2007, and entry to the United States on 4 January 2008. On his evidence as to his usual pattern of travel, this is consistent with a brief visit to Australia in between 28 December and 4 January, in accordance with his evidence in re-examination.

85 On the basis of all this evidence, I find that the plaintiff returned to Australia twice in 2007, at some time in the period 2 April to 21 May 2007, and at some time in the period 1 October and 27 November 2007. I am unable on the evidence to conclude if either visit was for longer than the usual period the plaintiff swears to, i.e. three to four weeks.

86 On the plaintiff's evidence, he visited Joynt St three times in 2008. His evidence is that he was in Melbourne in March 2008, when he and the deceased visited the Amber Lounge with a view to purchase as a business for them both[78]. This is consistent with the passport entry showing the first entry to the Philippines for that year on 31 March 2008. He said in re-examination that his contract on this occasion was for two and a half months only, from 4 January 2008.[79] I conclude that he was at Joynt St for about two weeks between mid March 2008 and 31 March 2008.

87 He also testified in cross-examination that he returned to Joynt St in April or May and then between 2 and 24 September.[80] In re-examination, when prompted by the passport entries, he said that he spent about a month in the Philippines (from 31 March) and then returned to Joynt St for another month, before returning to the Philippines.[81] The passport entries for the Philippines and the United States for that year show a second entry to the Philippines on 27 May 2008 until 16 June 2008 and thence entry to the United States on 20 June 2008, and a third entry to the Philippines on 24 September, departure on 29 September 2008 but no entry to the United States until 14 November 2008. This is consistent with the plaintiff returning to Australia after learning of the deceased's death and only later returning to work in the United States, after resecuring his employment.

88 The pattern and content of emails sent by the deceased to the plaintiff in 2008 in evidence are broadly consistent with the plaintiff's oral evidence. The deceased's email of 11 March 2008[82] refers to clubs, the Icon Bar and the Loft, which the deceased was considering purchasing. The next email in evidence is dated 15 April 2008[83] refers to "further delays" in "that business Amber", an apparent reference to the proposal that the deceased buy the Amber Lounge. The gap between these emails could be consistent with a visit in March, although it is unclear why the email would imply that the purchase of the Amber Lounge was still a possibility given the plaintiff's evidence that the deal fell through on the day of his visit to the bar with Leon in March.[84]

89 The next emails in evidence commence 6 June and run to 24 August. There are no emails in evidence for May, which (if all the emails sent are in evidence) could be consistent with the plaintiff being in Australia in May. The content of the email dated 6 June 2008 implies that the plaintiff is in the Philippines visiting his family, as the passport entries confirm, and refers to two collapses and the "specialist in the hospital" having reduced the deceased's medication. These emails are then consistent with the plaintiff's evidence in cross-examination that the deceased was in hospital in April or May,[85] that he, the plaintiff, was in Melbourne at the time, and his evidence that his usual practice was then to go to the Philippines to see his family.

90 In the email of 24 August 2008 the deceased says he is looking forward to seeing the plaintiff "next Tuesday",[86] which is consistent with the plaintiff's evidence that he returned on 2 September.

91 The final two emails in evidence are both dated 25 September 2008, shortly before the deceased's death on 28 September 2008, and refer to the plaintiff as having just left and a family dinner party on the evening of 24 September 2008, about which the defendants also gave evidence. The defendants sought to weaken the plaintiff's case by his absence from this dinner party, but I find that he had left that day. These emails are consistent with the stamp in the plaintiff's passport showing entry to the Philippines on 24 September 2008.

92 On the basis of all this evidence, I find that the plaintiff returned to Australia on three occasions in 2008 prior to the deceased's death, for some period between 11 March and 31 March; for about a month in May; and between 2 and 24 September 2008.

93 In summary, in the last two years of the deceased's life from the end of September 2006 (after a probable visit to Joynt St in September 2006) I find that the plaintiff lived with him at Joynt St in April or May 2007, in October or November 2007 (on these two occasions for up to a month), in March 2008 (for about two weeks), in May 2008 (for up to a month) and for three weeks in September 2008.

The evidence of the deceased's family as to his relationship with the plaintiff

94 All the deceased's children, with the exception of Andrew, and his former wife Mrs Phyllis Robins gave evidence. The deceased and Mrs Phyllis Robins were divorced in November 1980 yet the deceased remained involved until his death in the lives of all his children, and his former wife, and they in his, with the exception of a period in the 1980's when Bronwen lived in New South Wales. In fact, perhaps unusually, Mrs Robins and the two elder children, Melanie and Bronwen, all lived, or have lived for a period, only a few houses away from the deceased. The deceased's home after the divorce from his wife and until his death, 9 Joynt St, Macleod, is across the road from the former family home at 40 Dwyer St, Macleod, where Mrs Robins remained, and Jonathon lived until he left home. Melanie has lived at 32 Joynt St, Macleod, which is owned by the deceased's company, Glen Linton Pty Ltd and is about six houses away from 9 Joynt St, for over 20 years.[87] Bronwen lived for a period after leaving home, between 1980 and 1987, in an ashram in New South Wales and had no contact with her father. Thereafter she lived at Colac, between 1988 and 1991, and in the suburbs of Melbourne but not in the neighbourhood of her parents' homes between 1991 and 2000. She and her husband then purchased a house very close to her parents' homes, in Jacka St, and lived there from 2000-2005. She described this house as being within four houses of her father's home, within three of her mother's and the same distance from Melanie.[88] In December 2005 she moved to Mansfield, in county Victoria, where she and her now estranged husband run a zoo. Andrew resides in a community facility. Jay lives in Tasmania, where he moved in 2002.

95 Mrs Robin's evidence, which I accept, is that she and her former husband, the deceased, remained on good terms after their divorce and until his death, and were in frequent contact. They had shared interests in music and gardening and were joint administrators for their son Andrew. They went to each other's houses. They went on outings to nurseries and the Botanical Gardens, and on country drives, during which Leon would identify properties to buy, but not thereafter proceed with the purchase. She confirms that Leon travelled frequently, and while he was away she would look after his cat, and he hers if she was away. She had met Mr MacManus, a friend of Leon's called by the plaintiff, at Leon's house on a musical occasion. As further evidence that they remained on good terms, Melanie's evidence, which I accept, is that when she travelled overseas with her daughter April, her father Leon and her mother in 1995, her mother and father shared a room.

96 My impression from the detail of her evidence is that Mrs Robins was in frequent contact with the deceased in the years before his death and had some familiarity with his daily life, and more than that of their daughters. This is no criticism of Melanie and Bronwen- I accept their evidence that they were in frequent contact with their father, as indeed one might expect from the proximity of their homes. Melanie's evidence is that she saw her father more often at her home than at his, as he would drop in of an evening or before she went to work, that he often came to her house for meals and that when he was ill she visited him regularly in hospital. She planned his 80th birthday party with him and would see him on Father's Day and other days of celebration. Bronwen's evidence is that in the period she lived close by her father between 2000 and 2005 she saw him once or twice a week or a fortnight. This was mainly at her father's house, but on occasion her father would call into her house, from which she also ran her business. For just over a year after she left Melbourne for Mansfield she was returning to Melbourne weekly and would visit her father then. Thereafter she rang him most weeks, and he had visited her at the zoo on more than one occasion. He came to the zoo with some Filipino friends on once occasion, but not the plaintiff.

97 Jay's evidence, both in written and oral form, was brief. A medical certificate tendered in his case evidences significant health problems to which I will return later. It relates that his relationship with his father was "persistently problematic and burdensome to (him) but also characterised by affection, loyalty and a desire to please and seek approval".[89] In his oral evidence he confirmed that the relationship was at times difficult but emphasised that he loved his father, and his father loved him. This is evident from the many emails sent by the deceased to the plaintiff which discuss Leon's concerns about Jay. The emails also talk about times that Leon visited him in Tasmania.

98 The defendants were all aware that the plaintiff lived at 9 Joynt St full time between 1985 and 1996 and that he returned there on occasions thereafter. Mrs Robins appeared to have the most detailed knowledge of the three of the plaintiff's movements. She appeared aware of his period at Mt Buffalo and in the Maldives, and gave the only specific evidence of the three as to how often he returned to Joynt St after he began working on cruise ships. Her evidence is that from 2003 "He came home once or twice a year".[90] As discussed earlier, I have found that the most the plaintiff returned to Joynt St from this time, on his own evidence as to the pattern of travel, was two or three times a year.

99 Even after hearing all the evidence in the plaintiff's case none of Melanie, Bronwen or Mrs Robins accepted that the deceased had a sexual relationship with the plaintiff or that they were, even between 1985 and 1996, domestic partners. They say that they did not see the plaintiff frequently, even in the years he lived at Joynt St full time, and say that the deceased introduced the plaintiff to them as a lodger and friend. Bronwen could not recall if it was the plaintiff who attended her home with her father for a staff barbecue in the period she lived nearby between 2000-2005. Bronwen and Melanie say that their father told them that he was looking for a wife for the plaintiff, or asked them to find one. Bronwen said it was not strange to her that her father had the plaintiff living with him, and other younger Filipino men, because he had had young men come and work on the farm on which they lived in her early years. She said that "having younger men around was a normal part of his life. He enjoyed their company. I think it kept him young".[91] All three of Melanie, Bronwen and Mrs Robins had met three other men who for a period lived at Joynt St, being Mr Amper, a Jerum and a Kumar. Bronwen said she found it difficult to accept that her father was homosexual, given that he had had children, and that it was a shock to discover that he may be homosexual, which was only after his death when she saw the correspondence and other indications that that was his sexual orientation.

100 Melanie says that she first became aware that her father may be homosexual about 2001 when she found some pictures of naked Filipino men in his bedside table. Bronwen was living close by at this time, yet the inference I draw from the sisters' evidence is that Melanie did not discuss the matter with her at that time. Melanie says that she asked her father if he was homosexual after she saw the pictures and he denied it "emphatically".[92] She says it was confirmed for her after her father died and they went through all his possessions that he was homosexual, and that she no longer has any doubt about it, but even looking back with that knowledge she still does not believe that her father and the plaintiff were in a homosexual relationship. She explained this on the basis of the age difference and that her father would often ask her to find the plaintiff a wife. She believed the plaintiff to be heterosexual and that the relationship between her father and the plaintiff was that of friendship, and at times her father treated the plaintiff "rather as a servant".[93]

101 In support of their belief that the plaintiff was not homosexual and so did not have a sexual relationship with the deceased, the defendants rely on an email sent by the deceased to Mr Amper. The defendants concede that the deceased and Mr Amper did have a same sex sexual relationship. In this email, dated 28 July 2004, the deceased described to Mr Amper meeting the plaintiff, said that he (the plaintiff) had lived with him (the deceased) in Australia "for years", but that the plaintiff is "not gay".

102 Mrs Robins was aware of the pictures Melanie had found and referred (without objection) to Jay telling her that he had found Mr Amper naked in the deceased's bed in 2004, and so conceded that it may have been true that the deceased was homosexual. She was, however, equally positive that there was no sexual relationship between her former husband and the plaintiff.

103 Mrs Robins, Melanie and Bronwen all also gave evidence that the deceased could be manipulative of others, was very frugal and controlling in relation to money, and would propose activities (such as buying a business to benefit a family member, or, when the girls were young, sending them to a boarding school where they could have horses) which did not then eventuate, causing disappointment. In relation to the manipulation of others, they said that his claims in emails to the plaintiff in September 2007 that none of his family members cared about him in his illness in that month were false. Mrs Robins and Melanie were away overseas, to his knowledge, from late September, and Bronwen had by that stage moved to Mansfield. Bronwen added that her father could also be very charming. Bronwen also said that her father would travel overseas without telling his family, although it may be that Mrs Robins was aware of these trips given the arrangement about the cats. Mrs Robins in turn agreed with the suggestion that the deceased had "delusions of grandeur" in that he liked to have others look after him as if he were the "Lord of the manor".[94]

104 The plaintiff, Melanie, Bronwen and Jay, Mrs Robins and Mr Christodoulou all gave evidence that the deceased was in the habit of investigating various proposals to benefit family members, whether by way of purchase of a home or purchase of a business for a family member to run. The evidence is that none of these proposals came to fruition. One exception may be the acquisition by Glen Linton Pty Ltd of the home in which Melanie and her husband live[95], paying rent to the company, but this interpretation was not put to her for comment and so I can draw no conclusion. The plaintiff's evidence was that Leon had been looking for a business that they could work in together for a long time, since 2001,[96] and that from January 2007 they were looking extensively for such a business. These proposals included a serviced apartment complex in St Kilda in 2001,[97] an East Melbourne hotel prior to 2007,[98] the Khokolat Club, the Amber Lounge, DeBiers Restaurant, a hotel in Mansfield, a Tattslotto outlet and a brothel in 2007-2008.[99]

105 The plaintiff relies on this conduct by Leon to support his case that Leon wished to provide for him. The defendants seek to minimise the significance of these enquiries by stressing that they did not bear fruit, and were a habit of the deceased's- similar to enquiries he made about homes or businesses for his children. The defendants further submit that this conduct may have been conscious or unconscious manipulation by the deceased to encourage the plaintiff to return home because he was getting older, was unwell and lonely, and did not represent a genuine desire on the deceased's part to provide for the plaintiff. This interpretation was put to the plaintiff on a number of occasions in cross examination and he was adamant that he had trusted Leon and believed his explanations as to why the various proposals did not eventuate because he loved him. He also said that Leon became upset when he, the plaintiff, questioned him as to whether or not he was serious, and so he believed Leon would not be looking for a business if he was not serious.[100] His evidence in relation to this was consistent, believable and given in a compelling manner and I accept it.

106 The plaintiff's detailed evidence as to business proposals from 2007, as it appears in his affidavit in reply to Mr Christodoulou, his cross examination thereon, and his re-examination is as follows. In June or July 2007 the deceased told him that he wanted him to stay at home and that he, Leon, had been looking at a bar in the southern suburbs to buy that the plaintiff could manage. At some point prior to September 2007 he and the deceased also looked at a hotel adjacent to Fitzroy Gardens.[101] The plaintiff deposes to a meeting they had at Joynt St with a real estate agent, who then referred them to a bar for sale in the city called the Amber Lounge. He says that he and Leon went to that bar many times to observe the business, and met the owners several times. He also says that at this time Leon took him to a bank where they met the bank manager and a loan was approved to purchase the Amber Lounge. In January or February 2008 the owners agreed to sell to Leon for $800,000. Leon told him that he had mentioned the purchase to his accountant, Mr Christodoulou. The plaintiff returned to Melbourne in March 2008 believing the purchase was to be finalised, but when they arrived at the bar the owner told them he had changed his mind and wanted a partnership, not an outright sale. The purchase did not then proceed, as Leon and the plaintiff wanted an outright sale. At some point prior

107 Another agent then told he and Leon about another bar, "The Biers" or "De Biers" in Flinders St. They inspected it together with the agent, Leon made enquiries after the plaintiff returned to work and they agreed to purchase it. The plaintiff is very specific in his affidavit that on 4 July 2008 Leon made an offer to purchase the bar for $370,000 which was accepted. Leon asked the plaintiff to resign from work so that he could be trained to work in the bar by the owner. The plaintiff resigned as requested, but before his return to Melbourne in September 2008 Leon told him that the sale had fallen through because he had been advised against the sale by a solicitor. The plaintiff said in cross examination that he did not try and get his job back, and came back to Melbourne as planned because he had decided to stay in Melbourne with Leon in any event. On his arrival in Melbourne Leon said he had found a Tattslotto outlet for sale (for $250,000-$300,000) and also a brothel (for $370,000-$400,000). In re-examination the plaintiff said there were two brothels that had been referred to the deceased by the agent. He inspected the Candy Bar brothel with Leon and they agreed that it be purchased. He was to manage the brothel after a period of training on his return from the Philippines and he and the deceased were to share in all the profits equally. On this basis he left for the Philippines on 24 September 2008 for a visit as he did not anticipate that he would be able to return there for some time once the business commenced.

Assessment of the plaintiff's evidence in relation to business proposals

108 Much of the plaintiff's evidence as to investigations of various businesses in 2007 and 2008 recites meetings with other persons (real estate agents, bank manager, bar owners, brothel owner etc) and investigations which may have had a paper record. If a bank loan had been approved, for example, in ordinary circumstances there would be a paper record. No evidence was called by the plaintiff from any of these persons, and he did not put into evidence any paper records of the investigations other than emails from Leon to him. Further, the plaintiff became somewhat confused in cross examination about the identity of the bank he and Leon visited.[102] It may be that this is immaterial, because in other respects his evidence in cross examination was consistent. He rejected the characterisation of this detailed evidence as recent invention, and was not asked in cross examination why he did not adduce any corroboration from other witnesses or by way of documents. Accordingly I draw no adverse inference from the absence of such corroboration. His evidence on this issue was consistent, and given with apparent honesty and feeling.

109 Further, and most significantly, however unlikely or unusual his evidence as to the deceased's business enquiries might appear in the abstract, it is supported by the emails from the deceased to the plaintiff and, in general terms, by Mr Christodoulou, the deceased's accountant. Accordingly, I accept it. I set out below my detailed consideration of the emails and Mr Christodoulou's evidence.

110 I consider first references to business enquiries in emails from the deceased to the plaintiff. The first such reference in evidence is in two emails sent on 29 September 2007. In the first, sent at 11.14am[103] the deceased expresses affection for the plaintiff, complains that he has been away so much, asks about his future plans and refers to possible businesses for him in these terms:

We have been together a long time and you have always been number one in my affection. But you've been away so much. You have spent very little time with me the last 5 10 years. I know you have not been able to find suitablr (sic) employment here and must go where the work is, and I understand that. But it has left me alone. I would like to know your plans for the immediate future. When will you be back here and how long do you intend to stay. Will you return to the ships? Because I have some decisions to make too. I wonder why i (sic) stay here, I'm not happy. I hate living alone. I have been looking at the business section, seeing if there is something for you. (the email then discusses a hotel in Hobart or caravan parks as possibilities).

111 In the later email of that day the deceased thanks the plaintiff for his prompt reply and states:

Regarding your future, I have thought about that too and want you set up in a suitable situation which will not depend on my family's good will. You are important to me, because without you i (sic) have no future. I don't feel I can act immediately about any prospective business because I would need your input. Your own assessment and opinion. And we can set it up in a way than cannot be influenced by my family.

The email concludes "I hope you are well. I don't like to think of you working so hard. And I most certainly want your future secured."

112 There are a number of references to business purchases in emails sent by the deceased in 2008. The first email of 2008 in evidence, dated 15 February 2008 says that a package, being the lease in relation to the Amber Lounge, had arrived at Joynt St. and that the figures would be available on the 29th. The email of that day says that "I have heard nothing more from thr (sic) agent about the club. Despite my many phone calls and promises of documents and figures, I have heard nothing for weeks. I really wonder if they want to sell." The email also expresses reservations about a bar purchase generally. The next email in evidence is dated 11 March 2008 and refers to the possible purchase of two other bars, the Icon Bar and the Loft. There is then a gap until 15 April 2008, which email refers to "further delays in that business Amber". While this content is somewhat at odds with the plaintiff's evidence that the Amber purchase fell through during his March visit, the general tenor of the emails supports his case that the deceased wanted to find a business by way of making provision for him.

113 The next set of emails date from 6 June 2008 to 10 July 2008. They refer in detail to inquiries about one or more bars. Their tone, contents and frequency suggest that the subject of a possible business purchase was of significant concern to the plaintiff, and that the deceased was taking considerable measures towards a purchase.

114 The email of 6 June 2008 does not identify the bar in question, but states that "I will be seeing the accountant next Tuesday, Monday is a holiday, and they expect me to make an offer. Everything has checked out reasonably well, but the 2am closing might be a worry." The email also refers to a fax the deceased sent to the plaintiff, and the plaintiff's handwritten annotation is that this is the liquor licence application he was asked by the deceased to complete. The next email in evidence, dated 10 June 2008 reports that the deceased had had "a big day, a long spell with accountants" and refers to a meeting with Evan (Mr Christodoulou) and Evan having had discussions with the "other accountant". He asks the plaintiff to be patient, and not put him under any more pressure, assuring the plaintiff that he is serious about the intended purchase. It states "And really, you should be here taking part in the discussions." This is consistent with the plaintiff's evidence that the deceased became upset if he questioned him about his intentions. The next email in evidence is dated 22 June 2008 and in it the deceased says that he will talk to the agent on Monday and ask for more information, including accurate purchase figures. The plaintiff's evidence in re-examination is that the business the subject of these emails was the De Biers bar.[104]

115 The emails of 28 June and 29 June also make apparent reference to this proposed bar purchase. In his email of 28 June the deceased advises that the bank has rung requesting further information and also the agent "wanting to know our intentions" (emphasis added). He continues "As you know there is a lot of discussion about the liquor laws and the problems with violence. All of which depresses the market for bars so I need to tailor my offeer (sic) to account for that. And I'm not sure what to offer."(emphasis added). The email of 29 June is brief and advises no progress, but that the deceased will talk to the agent tomorrow.

116 The plaintiff relies in particular on the next two emails dated 4 July and 5 July. In the email of 4 July the deceased advises that he had made an offer that morning (to the agent) for "the debier bar" which was refused, but he subsequently reached agreement with the owners. I set out the full text of the email below:

A funny thing happened on the way to the market. This afternoon, in the car, my mobile rang. It was the agent. He was returning my call that morning, in which I had made an offer for the debier bar. My offer was refused. But the owners offered it at a price that was acceptable to me(.) I accepted. So my dear Bhoy, it looks like we own a bar. It will stretch my finances and the bank has not yet given me an answer(.) So you had better start looking for a bank to rob. But seriously, save all the money you can get your hands on now. Nielven can wait. Its not just the purchase price, its fees, salaries stock etc which all have to be paid for before any income is earned(.) I have told the agent I do not want to take possession until you return(.) And he told me that should be ok. But we both have to un dertake (sic) a day course in hotel/bar management which the licensing commission insist on. So its not like buying a k(g) of butter. And you had better starrt (sic) thinking of ways to attract more custom(.) And the chef, what about him(?) Evan thinks it would be smart to offer a small range of dishes at reasonable prices for the city rush lunch. So ther(e) you are. its (sic) happened. But there could still be a hitch. Nothing is signed yet. It's a verbal agreement this far.

117 In the email of the next day the deceased asks the plaintiff for his arrival date in Melbourne, as "I want you here for the take over, but I don't want you to jeopardise your arrangements with the Company or forfeit your resignation benefits....And I want you to handle the 2 week trial."

118 These emails corroborate the evidence of the plaintiff that Leon was taking apparently serious steps, including consulting his accountant, towards purchasing a business, in this case a bar, using principally his own money, but in respect of which the plaintiff would have a key hands on role with a view to financial provision for him. Further, that Leon told him he had agreed a purchase price for the De Biers bar, and the plaintiff needed to resign to return for the trial, training and to take possession. The emails do contain some cautionary notes, in particular that "Nothing is signed yet. Ibs (sic) a verbal agreement this far", but the overwhelming impression is that the deal is done.

119 The plaintiff's evidence is that he then resigned. After doing so, he was told by Leon that he had decided not to proceed with the purchase. This is reflected in the email sent by the deceased to the plaintiff on 10 July 2008. In this email he says he reached this decision after being advised by the solicitors to whom he was referred by Mr Christodoulou that the proposed purchase was not advisable for the reasons he there sets out and that there are "better propositions around, with far less liability than this one." He records that the proposed purchase price was $370,000.

120 The plaintiff's evidence in re-examination was that the cancellation of the purchase caused him disappointment.[105] That it caused disagreement between him and the deceased is suggested by the emails the deceased sent him on 24 July and 25 July. These emails discuss what the deceased should do about the request of him by a friend from the Philippines, Jerum, for assistance to return to Australia. In the email of 25 July the deceased resists the plaintiff's apparent jealousy or irritation by saying "Jerum is not my boyfriend. He's a likeable young man." He continues "I have been alone most of the time for many years now. Perhaps I'm just trying to buy companionship. Silly old bugger. And I don't think you have any idea of how hard I worked to ty (sic) and make this Flinders Lane business work."

121 If there was irritation between the deceased and the plaintiff, the email of 3 August suggests it had abated. In that email the deceased tells the plaintiff "Yes, I'll be very glad when you are here." And "We will still look for a business, but when I discuss the options with you." This is consistent with the plaintiff's evidence that on his return to Australia in early September the deceased did suggest other business proposals to him.

122 In summary, the emails sent by the deceased to the plaintiff corroborate the plaintiff's evidence as to the investigations of more than one bar, that he was told the deceased had agreed to purchase the De Biers business for $370,000 contingent on his return, that he was told by Leon that that purchase would not proceed prior to his return and that Leon was proposing they look at other businesses on his return, which he says they did.

123 I now consider the evidence of Mr Christodoulou. The defendants called only one non family witness, Mr Evangelos Christodoulou, known as Evan Christodoulou, the deceased's accountant. Mr Christodoulou's evidence was directed principally to his knowledge of the deceased's investigations into various businesses, his financial affairs generally and his approach to money. He had met the plaintiff, indeed did his tax returns as well until the late 1980's and early 1990's, but had never met the plaintiff other than one occasion outside his office. On that occasion, 2001, Mr Christodoulou's evidence is that he accompanied the deceased and the plaintiff to look at some Quest apartments in South Yarra the deceased was considering purchasing. I infer that these were the apartments the plaintiff refers to as being in St Kilda which he visited with the deceased and Mr Christodoulou.

124 Mr Christodoulou did not give evidence of ever having been to Joynt St or having been with the deceased and/or the plaintiff in a social situation. Nevertheless he said he asked the deceased twice, a few years apart, about the nature of his relationship with the plaintiff. On the first occasion the deceased "denied anything other than very good friendship", "longstanding friendship",[106] and on the second occasion the deceased was so adamant and forceful in denying a homosexual relationship that Mr Christodoulou did not wish to ask again. Mr Christodoulou said that he asked about the relationship because he was curious as "Bhoy seemed to be in and out of the house all the time" and "He (the plaintiff) was present, in the sense that Leon would bring up something Bhoy may have done, owed him money, not repaid it. Any number of things."[107] In relation to these loans, he agreed that the deceased did not seem "too fussed" that they had not been repaid.[108]

125 Mr Christodoulou appeared a man of forceful opinions and, unlike the witnesses called by the plaintiff, was not kindly disposed to the plaintiff's claim. Indeed, he volunteered the opinion that the claim for $900,000 was "preposterous"[109] (the full text of this remark is set out in the next paragraph) and appeared reluctant to answer questions as to what made him ask the deceased about the nature of his relationship with the plaintiff.[110] I give particular weight then to those aspects of his evidence which corroborate the plaintiff's account. As one example, I infer from the fact that Mr Christodoulou made these enquiries of the deceased about his relationship with the plaintiff notwithstanding that he apparently did not observe them together in domestic or social settings, that the deceased spoke sufficiently about the plaintiff in the course of his business dealings with Mr Christodoulou to ground the enquiry. This corroborates in general terms the significance of the relationship to the deceased.

126 Further, although Mr Christodoulou was very forceful in his opinion that the deceased would not have intended to make a substantial financial gift to the plaintiff by the acquisition of a business, and would have wished to remain in complete financial control, he testified that the deceased had said on a number of occasions "that he had a very good friend in Bhoy and he would do something or should do something for him but $900,000 is preposterous".[111] His evidence corroborates the plaintiff's evidence that the deceased took active steps to investigate various bars for purchase. In his affidavit he said that "At one stage Leon said to me he wanted to buy a bar for the Plaintiff...Leon and I visited two or three bars and spoke to the owners and accountants for these businesses." He added the ownership would have been structured in such a way as to give the deceased total control, although the plaintiff would have been rewarded on a performance basis.[112]

127 His oral evidence was that it was the deceased's intention that the plaintiff would eventually attain an equity interest in any bar that Leon purchased. He gave that evidence in cross examination in these terms:

The last two, three years of his life, when he started looking at bars, was it your understanding that Mr Estrella would be involved in that business as well?

Yes. Leon's intention was that Bhoy was going to manage them, not become an equity owner or equal partner. Not at the beginning. We did discuss that it was going to be restructured after the monies that were to be invested in the bar were repaid to Leon with interest, of course. He loved his interest. Eventually some equity-I don't know how much his intentions were-Mr Estrella would get some equity". (emphasis added)[113]

128 Later Mr Christodoulou elaborated this answer in these words: "The intention of Leon was to control the finances for Bhoy to proving (sic) himself and that Leon's investment was repaid plus interest. They are the discussions we had. Eventually Bhoy would be given some equity. We never discussed whether it would be 50/50 or how much. It was always "some equity"".[114]

129 Mr Christodoulou said he was unaware of some of the business enquiries the deceased had described to the plaintiff (for example the proposals the deceased outlined in his emails of September 2007 to the plaintiff, and the investigation of the Amber Lounge),[115] and of some of the developments in respect of those of which he was aware. He confirms that he was aware that the deceased investigated the De Biers bar, and said that he accompanied him to meet the owner and had looked at three or four years of returns. He appeared aware that the deceased had made an offer to buy the De Biers bar, and that it had been refused, but was not aware or did not recall that the owners had offered the business to the deceased for a price he had accepted, being $370,000 as the deceased described it to the plaintiff.[116] The tenor of his later answers does suggest, however, that he recalled being rung by the solicitors to whom he had referred the deceased about the purchase, which is consistent with what the deceased told the plaintiff had occurred.

130 Thus Mr Christodoulou's evidence as to what transpired in relation to the De Biers purchase corroborates in general terms that of the plaintiff, and what is stated in the deceased's emails, in particular that the deceased had consulted Mr Christodoulou about the purchase and been referred to solicitors by him. His evidence is consistent with the plaintiff's contention that the deceased intended to make financial provision for him, and had so intended for some time, albeit in Mr Christodoulou's evidence that that financial provision was not to be immediate.

131 Although Mr Christodoulou was unable to confirm the detail of all the evidence of the plaintiff in relation to proposed business acquisitions I do not consider this detracts from the plaintiff's evidence. This is because Mr Christodoulou's evidence was on occasion rather broad brush, thus a failure to recall detail does not necessarily imply that the asserted facts did not occur. Two examples of direct contradiction between his evidence on affidavit and oral evidence follow. In his affidavit Mr Christodoulou asserted he had been the deceased's accountant for "more than 24 years".[117] In crossexamination it transpired that he had not checked his records when he made this affidavit, and on subsequent checking by his office manager he learnt he had first prepared a taxation return for the deceased in 1974[118] i.e. he had been his accountant for 34, not 24 years at his death. Secondly, in his affidavit Mr Christodoulou asserted that the deceased discussed his "last Will" with him.[119] In oral evidence in chief he said that the deceased did not discuss this last will with him, but wills in general.[120] Mr Christodoulou was also adamant that he was not aware of the proposal just before the deceased's death to buy the Candy Bar brothel, but earlier in his evidence in chief he volunteered that the businesses the deceased had investigated with him included lists of call girls and brothels.[121] Thus he may have been unaware of the last proposal, but his evidence provides confirmation that the deceased had in the past expressed interest in similar operations.

132 Mr Christodoulou says that he advised the deceased against the purchase of a bar, given his age and his view that the deceased would have wished to take a hands on role at the till. His evidence is also that the deceased was very careful with his money, and that people generally become more cautious about investments with age, and so the purchase of a volatile investment such as a bar or a brothel would not be advisable. Mr Christodoulou's assessment of the deceased's fiscal character is supported by that of the deceased's children and former wife, and by the deceased's own cautionary notes and expressed desire to use money wisely in his various emails to the plaintiff.

133 On the basis of the whole of the evidence, I conclude that the deceased did wish to make financial provision for the plaintiff and considered this could be done by purchase of a business. His intention was most likely that the plaintiff would have to earn such provision, by working in the business, but I find that it was his intention that at some point the plaintiff would have an equity in his own right in such a business.

134 Counsel for the plaintiff relied on this evidence as to the deceased's wishes and plans to support the plaintiff's principal case that he was the de facto partner of the deceased, rather than as a distinct source of the obligation to make provision for him. As set out earlier, promises to support and an expressed desire to do so are also relevant more generally as a factor to be considered in determining whether or not the testator had a responsibility to provide for the plaintiff, and, if so, in what amount.

135 I think it probable that part of the deceased's activities in investigating various businesses was his desire to secure the plaintiff's return to Australia, because on two occasions when this had occurred or was about to occur (in March 2008 in relation to the Amber Bar, which did not proceed after the plaintiff returned, and in July 2008 in relation to De Biers, which did not proceed after the plaintiff resigned his employment) the transaction did not proceed. The defendants suggested in their final submissions that this was conscious manipulation of the plaintiff by the deceased, and motivated by the desire to secure care rather than a reflection of a loving relationship. A more generous view is that it may have been an unconscious factor, and I consider it probable that the deceased's reluctance to spend and financial caution also played a role.

136 Whatever the deceased's motivations, in my view the failure of the transactions to proceed and the deceased's motivations in relation to that does not detract from the plaintiff's case. The deceased was clearly lonely, fond of the plaintiff and desirous of his companionship and support. That supports the existence of an obligation to make financial provision for him rather than detracting from it. This is all the more so if the deceased was in fact deliberating manipulating the plaintiff and did not intend to proceed with any business proposal once he secured the plaintiff's return. The plaintiff returned to Australia in September and did not seek to regain his employment despite his evident disappointment that the De Biers purchase did not proceed. I accept his evidence that he did so because he loved the deceased, and had decided to return to live with him and care for him.

137 I also do not consider the fact that investigations by the deceased about business or home purchases to benefit the deceased's children also did not proceed detracts from the plaintiff's case. In addition to these investigations, the deceased also referred in his emails to the plaintiff to his desire to assist Filipino people generally, and gave financial assistance to Mr Amper and possibly to Jerum. Bronwen gives evidence that he was involved in community work in her childhood, and Mr MacManus testifies that the deceased was engaged in volunteer work into his eighties. He was a man who wished to, and did, help others. One reason for the deceased's investigations of various businesses may have been that he enjoyed that as an activity, which did not need to culminate in a transaction. Similarly, one reason for financial assistance to Mr Amper and to Jerum may have been to secure companionship. I find, however, that these investigations also reflected a genuine desire on his part to see his children and the other people he loved and wished to spend time with provided for. His will does provide for his children, and his intention to provide for the plaintiff was thwarted, I find, only by his death.

138 The plaintiff's evidence is that he did not tell his family of the true sexual and domestic nature of his relationship with the deceased, nor did the deceased tell his family. More than non disclosure, they took steps to hide what the plaintiff says was the true nature of the relationship, by setting up a separate bedroom for the plaintiff, although he says this was a "faux" bedroom and they slept together in the deceased's bed. Further, the deceased denied to his daughter Melanie that he was homosexual and to his accountant that he and the plaintiff were in a homosexual relationship when specifically asked. The plaintiff says, however, that others external to the family, in addition to the Department of Immigration, were aware of the true nature of the relationship.

139 The plaintiff called three witnesses to corroborate his case in this regard, all of whom got to know the deceased and then the plaintiff after they had ceased living together full time. Two of these, Duane Eaks and Carol Inglis, are elders of the New Wave Church, which they and the Church website describe as a Christian church offering acceptance to those persons who have felt excluded from mainstream Christian churches by reason of their sexuality, "especially gay, lesbian, transgender and bisexual persons".[122] They both described in their affidavits meeting the deceased first in 1993, when he attended the Church and offered to become the organist. Thereafter he played the organ every Sunday at the Church, unless he was away, until his death. Ms Inglis estimated his attendance as fifty out of fifty two weeks a year. Mrs Robins says this was an exaggeration, as the deceased travelled overseas regularly. The deceased was a regular attendee at Church social functions, which were held in private homes three or four times a year. Mr Eaks said the deceased attended nearly all the social functions. In cross examination of Mr Eaks a letter he had written to the deceased dated 3 March 1997 welcoming the deceased to the Church was put into evidence and Mr Eaks conceded that it was more likely 1997 that he had first met the deceased at the Church. Ms Inglis adhered to her view that it was 1993, but given that the passage of time may have affected memories and the clear evidence of the written document I find that the deceased first attended the Church and met Mr Eaks and Ms Inglis in early 1997. I find that the deceased travelled frequently overseas, but that when in Australia he attended the Church regularly on a Sunday.

140 It follows that these two witnesses saw Leon regularly on Sundays for over 11 years, and on additional social occasions. Ms Inglis said that most of the members of the Church are gay, transsexual or bisexual[123] and so I infer that this was a community in which Leon could have felt more comfortable than in other situations in disclosing a homosexual relationship. Notwithstanding this Mr Eaks and Ms Inglis agreed that Leon never openly said that he was in a homosexual relationship with the plaintiff, whom they knew as Juanito or Bhoy. They both said, however, that Leon talked about the plaintiff frequently, was excited when Bhoy was coming "home", and described the plaintiff's return to Joynt St using that word i.e. it was the plaintiff's home as well as Leon's.[124] Leon told them that the plaintiff rang him every night when he, the plaintiff was away.[125]

141 The witnesses first met the plaintiff in 2002 or 2003, Mr Eaks first at his home when the plaintiff accompanied Leon to see some photography and then both at the Church and some social functions. Mr Eaks estimated that the plaintiff had been to three or four Church social functions, Ms Inglis said "a few"[126]. Mr Eaks and Ms Inglis were each of the view that the deceased and the plaintiff had been in a same sex domestic relationship, but agreed in cross examination that this was their assumption, rather than what the deceased had said, although there were indications. They said the indications of such a relationship were "the way they interacted"[127], that the deceased and the plaintiff came together and stayed together at Church social functions, that Leon did not bring anyone else to the Church, that they were "relaxed in each other's company" at the dinner party at Joynt St[128] and "very comfortable with and around each other" at Mr Eaks' home when Leon introduced the plaintiff to Mr Eaks.[129] When asked specifically in re-examination how the two appeared together, Mr Eaks said they were "quite tender together".[130] They said the plaintiff was very distressed after Leon's death and had confirmed to them then that the relationship was an intimate one.

142 In addition to these witnesses, the plaintiff also called Thomas Gavan MacManus, known as Gavan MacManus. Mr MacManus described himself as a very close friend of the deceased. They did not meet through the Church, but through community music in about 1997 when Mr MacManus was given Leon's name to contact to play piano at a local Carols by Candlelight. Thereafter they did voluntary work together in the local community at a nursing home about once a month, and continued to see each other around music related activities, for example, the deceased accompanied Mr McManus' son when he practised his violin. Mr McManus's evidence is that Leon talked frequently and "dotingly" about the plaintiff, appeared to miss him very much when he was away, "would seem to be always emailing Bhoy" when he, the plaintiff was away, would be delighted when the plaintiff was returning and told him that "Bhoy always has a home here". Leon also told him that the plaintiff would contact him virtually every night when he was away for work.[131] Mr MacManus met the plaintiff at Joynt St "at times", and recalled the deceased telling him not long before his death that he Leon wanted to provide for the plaintiff by setting up a business that the plaintiff would be involved in.[132]

143 By contrast with his talk about the plaintiff, Mr MacManus said the deceased rarely talked about his family, and he was surprised to find at the funeral that Leon had children. He thought he had met his ex wife on one occasion at Leon's house. Mrs Robins confirmed this. On one occasion the deceased was ill and told Mr MacManus that he had no one to look after him as Bhoy was away and his family did not help him.

144 Mr MacManus gave similar evidence to the other witnesses that the deceased never said outright he was gay, but that he, Mr MacManus, "sort of had my suspicions after meeting Bhoy and seeing him there together".[133] He gave specific evidence that on one occasion he was at Joynt St and saw Leon and the plaintiff embrace when the plaintiff returned from work. Mr MacManus described this in his affidavit as a loving embrace. When Leon noticed that he had seen, Leon appeared embarrassed and tried to make light of it.[134] Mr MacManus believed from his observations that the deceased and the plaintiff were in a committed and very close relationship.[135]

THE PLAINTIFF'S RELATIONSHIP WITH THE DECEASED: DISCUSSION AND FINDINGS

145 I find on the basis of all of the evidence discussed earlier that the plaintiff and deceased were in a same sex domestic relationship from the plaintiff's arrival in Australia in 1985 until 1996. This relationship followed a period of intimate friendship between 1978 and 1985, when the plaintiff and deceased visited each other in the Philippines and Australia. I reach this finding by the reasoning process set out below.

146 First, there is no dispute that the plaintiff and deceased shared the home at 9 Joynt Street, Macleod for the period 1985 to 1996. The only issue in respect of that period is on what basis they did so. The plaintiff says this was as a de facto couple, the defendants say that the plaintiff was merely a boarder, or, at best, a friend of the deceased.

147 In determining the basis on which they lived together, I first consider what the deceased himself said about the relationship, and whether he was same sex attracted. He was explicit in his sponsorship of the plaintiff's application to migrate to Australia, that they were in a homosexual and committed relationship. This was a clear assertion by the deceased that he and the plaintiff were in a sexual relationship akin to marriage. As against this, his statements to the Department of Immigration are the only occasions on the evidence where the deceased himself explicitly acknowledged the relationship to others in this way. Further, he took active steps to conceal from his family that he was attracted to men and that he was living in a sexual relationship with the plaintiff-the separate bedroom for the plaintiff, asking his family to find a wife for the plaintiff and so on. He denied that he was homosexual, vehemently on occasion, when asked by Mr Christodoulou and by Melanie.

148 There is, however, other evidence as to his conduct that confirms that he was same sex attracted, and that the relationship with the plaintiff was an intimate one. I rely in this regard on Melanie's evidence as to finding photographs in his bedside table of naked young men and the nature of his correspondence with Mr Amper which is openly romantic, and, on occasion, erotic. I find that the deceased did have a homosexual relationship with Mr Amper. The evidence as to the deceased's relationship with Mr Amper is that it was relatively brief, Mr Amper came to Australia in 2004 after the relationship began online earlier that year and by emails in 2007 the deceased was reflecting on the end of that relationship. In addition I accept the evidence of the witnesses called by the plaintiff, in relation to the period after 1997, that what Leon said to them about the plaintiff and the way they presented together caused these witnesses to regard the relationship as at least one of close and affectionate friendship, and, probably, a sexual and romantic one. What they all confirm is that the deceased spoke very affectionately about the plaintiff, was excited when he was returning, spoke about the plaintiff as returning "home" and, when they did see them together, they appeared to be on very relaxed and affectionate terms with one another. I consider it significant that not all these witnesses are associated with the New Wave Church, and so, perhaps, inclined to regard signs of affection as signs of a same sex sexual relationship. Mr MacManus knew the deceased from outside the Church, and is himself married.

149 The deceased's daughters and his former wife are, perhaps understandably, reluctant to acknowledge that the deceased was attracted to men and acted on that attraction, in addition to the relationship with Mrs Robins that created their four children. I find that the deceased too was very reluctant to acknowledge that he was homosexual, even in supportive surroundings such as that provided by the New Wave Church. As set out earlier, this may be explicable in part by the reluctance of many in the community to accept homosexual relationships until comparatively recently. Notwithstanding this reluctance to acknowledge this in himself, in my view the clear statements he made to the Department of Immigration, together with the other evidence puts this beyond doubt.

150 The evidence as to the deceased's character and conduct generally, not just in relation to his sexuality, supports a conclusion in my view that he compartmentalised his life to a considerable degree, and kept friends and family separate from one another. He would travel overseas without telling his family (according to Melanie); he did not speak of his family to Mr MacManus, but did in affectionate terms of the plaintiff; he criticised his family for not caring for him to the plaintiff and to Mr MacManus, when I find on the evidence that there was no lack of care. Given this general tendency the fact that he did not involve the plaintiff in his family life, nor they in his life with the plaintiff, does not necessarily mean that he had no significant relationship with the plaintiff, and the other evidence shows that he did.

151 In relation to the plaintiff, the implication from Melanie's evidence is that the defendants contend that he is not homosexual, whatever the sexual orientation of the deceased, and so the relationship could not have been a de facto one. She relies on the deceased asking her and others to find a wife for the plaintiff. The plaintiff's clear evidence is that he had a homosexual relationship with the deceased, and this is supported by references to their respective views about particular sexual practices in emails sent to him by the deceased.[136]. He was cross-examined at very considerable length and yet his evidence did not, in its essentials, waiver. Nor was it ever specifically put to him in cross examination that there was no such sexual relationship. The defendants sought to say that if the relationship was a sexual one he should have indicated this by ticking the box for de facto relationship on his application for permanent residence. I accept his evidence that this was not possible in 1986 and the submission of counsel for the plaintiff that general legislative recognition to same sex relationships was only afforded federally until 2009, interestingly after the death of the deceased[137].

152 In interviews with the Department of Immigration for that application the plaintiff is recorded as being less certain about the relationship with the deceased, and a homosexual orientation, than was the deceased. If he was so ambivalent, I am satisfied that this ambivalence was dispelled, given that he and the deceased then lived together for over 10 years. In addition, there was no evidence adduced by the defendants that the plaintiff had been in any other sexual relationship after his application for permanent residence, whether heterosexual or homosexual. I have taken into account that the plaintiff as well as the defendant concealed the relationship from his family in the Philippines. In my view, he gave a sufficient explanation of that concealment by his evidence that homosexuality is not acceptable in Filipino culture.

153 I have also taken into account that the plaintiff did not adduce evidence from the one person who, on his evidence, lived at 9 Joynt Street at the same time as he and the deceased did so, that is, his cousin Andrew or Nilvin. It became apparent only in reexamination that this was for a period of four years, and yet there was no detail from the plaintiff of the household arrangements during that time, and no explanation as to why Nilvin did not give evidence. This is a striking omission. Further, the plaintiff has not adduced evidence from the deceased's nephew Graham or Brian Robins (in the plaintiff's principal affidavit referred to as Graham, but in the closing submissions referred to as Brian)[138], although on his evidence in chief and on the basis of the deceased's emails, Mr Graham Robins both knew of and accepted the relationship. It must be said, of course, that nor have the defendants called Mr Robins. The plaintiff said in cross-examination that there were other witnesses from outside the New Wave Church who are "completely gay and acting gay" but they were not called, although he knew their names.[139] No explanation was given in re-examination.

154 The evidence the plaintiff has adduced from friends of the deceased in the latter period of their relationship from 1997 does corroborate not only the way the deceased regarded him, but the way they acted together. These occasions were not frequent, but this is not necessarily inconsistent with the plaintiff's account of the relationship because these friends all got to know the deceased at a time after the plaintiff had moved away from living permanently at 9 Joynt Street. These witnesses cannot say that the relationship was definitely a sexual one, but their observations are consistent with it so being.

155 I am conscious of the necessity to be cautious in accepting evidence from the plaintiff of a relationship that establishes the deceased owed him a responsibility which he failed to discharge when the deceased cannot be heard in reply. In Schmidt v Watkins[140], one of the first Part IV cases after the necessity for a particular form of relationship was removed, Justice Harper emphasised this "great need for caution", particularly in relation to uncorroborated evidence. The plaintiff's evidence is corroborated by the Department of Immigration investigation and by subsequent emails from the deceased, and, as to the externals of the relationship, by friends of the deceased. I accept the plaintiff as a witness of truth. His evidence was consistent and his evidence as to his returns to Australia, for example, was supported by what objective evidence exists. Having regard to all of the above, I accept the plaintiff's evidence that he had a sexual relationship with the deceased. I consider that the deceased's requests to Melanie and Bronwen to find a wife for the plaintiff were part of the smokescreen he put up to hide the real nature of the relationship from them.

156 Given the homosexual orientation of the deceased, the fact that it is beyond dispute that he and the plaintiff lived together for over ten years on a fulltime basis, the deceased's own statements to the Department of Immigration, the plaintiff's evidence as to his emotional and physical attachment to the deceased, and the affection and intimate knowledge of each other apparent in the deceased's later emails to him, I find the defendants' account of the relationship as merely one of boarder or lodger or friend to be improbable. I find that the plaintiff and deceased were a same sex domestic couple for this period.

157 In characterising the relationship at this time as a de facto one, I have also taken into account that in this period, 1985 to 1996, the plaintiff and the deceased did not merge their finances, and indeed did not at any period once the plaintiff had commenced work. This is a factor in determining whether or not a de facto relationship exists, but is not determinative. In my view it is outweighed by the factors listed above.

158 I have also had regard to the fact that the plaintiff did not put into evidence any photographs of he and the deceased, except one from the period after the deceased began attending the New Wave Church, or other memorabilia such as love letters. He gave evidence of two gifts of jewellery, and I accept his evidence that those gifts were from the deceased, and his explanation that he and Leon had discarded a lot of early romantic memorabilia. I do not consider it remarkable that, in such a long connection, this would occur.

159 Counsel for the plaintiff puts his case on the basis that this de facto relationship continued after 1996 and until the deceased's death, notwithstanding that from 1996 the plaintiff did not live fulltime at the deceased's home. The plaintiff's case did not make any detailed analysis of the amount or type of contact between the plaintiff and the deceased after 1996, although on the evidence this was different at different times, and there were periods of resumed cohabitation. The defendants' case is that any de facto relationship which had existed between 1985 and 1996, which was not conceded, ceased at that point in time.

160 In my view, both these analyses are too simplistic. I do not think it can be said that the domestic relationship was necessarily at an end as soon as the plaintiff commenced working at the Mt Buffalo chalet in 1996 because his evidence, which I accept, is that he returned frequently, and he later lived at Joynt St again between 2000 and 2002. But nor do I think it correct to characterise the relationship as still one of domestic partners at the deceased's death, because for the previous four years, from December 2004, the plaintiff had worked overseas on cruise ships, and spent limited periods of time at Joynt St. There is, in my view, a qualitative difference between work within Victoria, from which the plaintiff could and did return frequently, and overseas work which prevented return for substantial periods of time. It is also significant that in his periods in between cruise ship contracts, the plaintiff shared his time between Joynt St and his family in the Philippines essentially equally i.e. he did not choose to spend all or most of his available leisure time with the deceased.

161 In reaching this conclusion I do not make any criticism of the plaintiff in choosing to work away from Melbourne from 1996, or in choosing to spend time with his natal family. The plaintiff impressed me as a person of considerable quiet dignity and I accept his evidence that he had had periods of unemployment living in Melbourne during which he was dependent on the deceased and he found being without work unpalatable. Many would reach the same conclusion and wish to have the dignity and financial independence that one's own work afford. He is also very attached to his own family, as is evident from the financial support he has given for the education of his niece and nephew, amounting to $12,000 p.a. for four to six years. [141]

162 These desires are not in my view inconsistent with a sincere attachment on the plaintiff's part to the deceased. The deceased was many years older than the plaintiff, and his own family describe the deceased as being very controlling, particularly in relation to financial matters. It may be that these were also factors that influenced the plaintiff to look for and accept work away from Melbourne in preference to remaining in Melbourne, financially dependent on the deceased.

163 I accept, however, the submission of counsel for the defendants that these were choices made by the plaintiff. It is not the situation of a person in the employment of, for example, the defence forces or a particular employer of longstanding who requires the plaintiff to move to retain that employment. The plaintiff accepted employment with various employers and it was a consequence of these choices that took him away from Melbourne. I accept his evidence that he was unable during these periods to obtain suitable work in Melbourne and this is supported, in respect of the period of unemployment he refers to in 2004, by the content of the deceased's emails to Mr Amper. What his pattern of employment suggests, however, is that the plaintiff was in pursuit of not just employment, but advancement in his employment in accepting postings away from Melbourne. Again I emphasise that this is not a criticism of this choice, but it does emphasise that it was a choice rather than a financial necessity.

164 The consequence of these choices made by the plaintiff is that he was away from Joynt St between 1996 and 2000, then again from early 2003 for nine months on his first cruise ship contract. This was followed by a period in 2004 when he lived again at Joynt St, but from the end of 2004, as I have found, he returned to Joynt Street at the most two or three times a year. While the plaintiff's evidence is that the deceased accepted the need for him to work overseas, I conclude from the content of some emails from the deceased to the plaintiff (for example, the first email sent 29 September 2007 quoted earlier in relation to business proposals) that the deceased was not happy about being left alone, and wanted the plaintiff to return.

165 In the last two years of the deceased's life, the plaintiff spent an extended period with him on two occasions in 2007 and three, of shorter duration, in 2008. The plaintiff spent equivalent periods of time with his family in the Philippines. In summary, the plaintiff spent between onesixth and onequarter of his time in the years proximate to the deceased's death living with the deceased, and chose to spend an equivalent amount of time with his family in the Philippines rather than, as may have been possible, extending the time living with the deceased in Melbourne. Forsyth is authority for the proposition that physically residing together is not necessarily essential for the establishment of a de facto relationship. But in that case, the evidence of the applicant for provision was that she and the deceased spent four or five week nights plus weekends together and engaged in many shared activities. That is, that they were physically together more than 50 per cent of their time and had a substantial shared life. That is not the situation on the evidence for the relationship between the plaintiff and the deceased at the deceased's death.

166 In addition to short periods of time spent physically living together in the years prior to the deceased's death, there is also little evidence as to involvement by the deceased in the plaintiff's daily life, to the extent that was possible given their physical separation. The emails which are in evidence from the deceased to the plaintiff show that the deceased continued to report activities in his life to the plaintiff, and in terms which imply a detailed and intimate pre-existing knowledge on the plaintiff's part of the deceased's family, concerns and activities. There is nothing similar in the evidence as to what the plaintiff reported to the deceased. In fairness, the plaintiff's evidence, supported by the witnesses he called, is that he rang the deceased frequently but there is little evidence as to how much this contact maintained an intimate involvement by the deceased in the plaintiff's life. For example, there is no detailed evidence as to what they talked about, there are no emails in evidence from the plaintiff to the deceased detailing his daily life on the ships or in the Philippines, there is no evidence from family members of the plaintiff as to the role the deceased played in their lives (although the deceased's emails report that he had visited them), and the plaintiff gave no evidence as to how he spent his time on the ships or in the Philippines. Understandably, perhaps, the focus in the evidence was on the time the plaintiff and deceased spent together, but on the evidence this was in numerical terms quite a small amount of time in latter years and a numerical measure is the only measure available given the absence of evidence of the deceased's involvement otherwise in the plaintiff's life.

167 In Forsyth the Court concluded that the applicant and deceased had shared "on a daily basis nearly all the significant moments of their lives", although they did not live together full time. This was a critical finding in sustaining the judgment on appeal. Section 35(2) of the Relationships Act lists "the degree of mutual commitment to a shared life" and "the nature and extent of common residence" as factors to be considered under that Act in determining if a domestic relationship exists. I cannot conclude that the plaintiff and deceased here had a shared life in the years proximate to the deceased's death, and indeed find that at least from December 2004 the plaintiff and the deceased did not share most of their lives, and their relationship was no longer a domestic relationship. I have limited this finding to the period from December 2004 when the plaintiff renewed overseas employment by commencing his first employment contract with Disney Cruise Lines because there were no substantial periods of cohabitation thereafter that were more than visits in between contracts. Arguably, the true end of the domestic relationship was at an earlier point in time, but it is not necessary to find an exact date, and given that the plaintiff remained in Australia until 2000 and returned, as I find, regularly to Joynt St, from Mount Buffalo and Darwin, that between 2000 and 2002 he lived again at Joynt St, and that there was an extended period of cohabitation in 2004 I do not consider I can find with certainty that the relationship had changed its character until late 2004.

168 In reaching this conclusion I accept that a long term relationship may continue notwithstanding physical separation, in particular occasioned by one partner working away. But the relationship here asserted by the plaintiff is not only one marked by considerable physical separation in later years, it never had the public recognition of a marriage or a relationship that was made evident to the deceased's and the plaintiff's family and friends. I accept the submission put by the defendants that to afford the plaintiff provision from the deceased's estate on the basis that a de facto relationship continued notwithstanding their physical separation would be to make a public statement as to the nature of the relationship that neither of the participants was prepared to do during its life. The "reputation and public aspects of the relationship" is one of the factors to be considered under the Relationships Act in establishing a domestic relationship. The only public statement by either of the deceased or the plaintiff of their relationship as a committed same sex relationship was made in 1985 to the Department of Immigration, and the only public presentation was what could be inferred from sharing a residence between 1985 and 1996. There are indications thereafter, such as the plaintiff nominating the deceased as his emergency point of contact in his passport issued in 2002, and continued use of Joynt St for his mail in Australia. But these indications could be consistent with other forms of relationship as well. Even in supportive surroundings, such as the New Wave Church, the deceased did not acknowledge the relationship overtly as being a homosexual one and did not wish to present himself as homosexual.

169 Notwithstanding that I do not considerate it accurate to describe the relationship between the plaintiff and the deceased as a domestic same sex relationship from at least the end of 2004, I find that the relationship continued to be one of intimacy and affection. I accept the plaintiff's evidence in this regard and the deceased's view of the plaintiff is evidenced by his emails and his behaviour in front of the witnesses called by the plaintiff. Although they had ceased to share their daily lives, I find that both continued to regard Joynt Street as the plaintiff's home in Australia. This is the plaintiff's evidence, which I accept, and in his emails to the plaintiff and in discussion with Mr Eaks, Ms Inglis and Mr MacManus the deceased referred to Joynt Street as the plaintiff's home. This distinguishes this relationship, in my view, from other relationships of continued affection once a domestic relationship has ceased. In particular, I find that the deceased and his former wife, Mrs Robins, remained on good terms, and engaged in some shared activities, but they ceased to share a home.

170 I consider it probable that a sexual relationship also continued between the plaintiff and the deceased notwithstanding that they no longer lived together fulltime. There is reference to sexual matters between them in some of the emails, and it is evident from the emails sent by the deceased to the plaintiff when discussing his earlier relationship with Mr Amper that the plaintiff was jealous of that relationship and that the deceased was aware of that. The plaintiff confirmed in cross examination that he was hurt by the deceased's relationship with Mr Amper, and jealous of it.[142] In his emails to the plaintiff, the deceased discusses family issues of considerable concern to him, matters arising from the plaintiff's most recent return to Joynt Street and aspects of his daily life that show, in my view, a relationship of trust, affection and intimacy with the plaintiff.

171 This was not an exclusive sexual relationship from the deceased's perspective, as he had a sexual relationship with Mr Amper as well. I accept the plaintiff's evidence that it was exclusive on his part. The fact that the deceased had another sexual relationship did not, in my view, significantly diminish the significance to him of his relationship with the plaintiff, and does not significantly undermine the plaintiff's case. The relationship with Mr Amper appears to have been relatively brief, and the deceased also, at least in so far as he was speaking to the plaintiff in emails, appeared to regret the relationship and regard himself as having been exploited by it. The defendants have adduced evidence of some other affectionate correspondence in the 1980's or undated to the deceased from persons other than Mr Amper and the plaintiff[143] and suggested in cross-examination of the plaintiff that the deceased may have had other lovers in addition to Mr Amper, which the plaintiff denied. Even if the deceased did have other sexual relationships there is nothing in the evidence to suggest that any other relationships were of similar duration or consequence to the deceased as that with the plaintiff. I accept the submission by counsel for the plaintiff that the relationship with the plaintiff was the most significant relationship of affection and intimacy in the deceased's life, after that with his family.

172 I also find that the deceased wished the plaintiff to return to Joynt Street and resume living with him fulltime and that he wanted him to do so as his domestic partner. Given what I have found to be the earlier relationship of domestic partners between them between 1985 and 1996, their continued emotional and, on the balance of probabilities, physical intimacy, I do not consider it likely that the deceased would have wished the plaintiff merely to be his carer. The plaintiff resigned his employment on the basis that he was told by the deceased that he had agreed to purchase a business they would both own, and he would operate, and still returned home notwithstanding that he knew by that time that that business proposal had fallen through. In my view this speaks powerfully of the nature and extent of the plaintiff's commitment to the deceased, and the deceased's power over him and ability to command his affection and presence.

173 The plaintiff had returned from overseas employment on other occasions at the deceased's request, and yet later taken up another overseas position, and so this period of resumed cohabitation may not necessarily have been indefinite. His evidence that the deceased was proposing to purchase a brothel for him to manage and that his visit to the Philippines just prior to the deceased's death was to be his last period away from Joynt St for some time is also not corroborated by any other evidence. Accordingly, I consider there is a need for caution in accepting that the plaintiff and deceased were about to resume their previous relationship of domestic partners for an indefinite period. There is no evidence to suggest to the contrary, however, and the defendants have not contended that the plaintiff did not resign his employment prior to his return. On this basis, I find that at the point of the deceased's death both the plaintiff and the deceased intended to resume their relationship as domestic partners.

174 In summary, I find that while the plaintiff and the deceased ceased to be domestic partners at least by December 2004, they both intended to resume that relationship at the deceased's death. This is analogous to the plan of the parties in Forsyth to marry in the future, which was considered a factor in the applicant's favour, and, arguably, a more compelling indication given that in Forsyth there does not seem to have been a clear date in mind.

Section 91(4)(e): any family or other relationship between the deceased and the plaintiff, including the nature of the relationship and, where relevant, the length of the relationship

175 I have set out above my detailed findings in relation to the relationship. A connection between the plaintiff and the deceased endured for 30 years, from when they first met in 1978 until the deceased's death in 2008. I also consider the disparity in ages between the plaintiff and deceased, and the plaintiff's age when they first met to be relevant factors, either under this paragraph or as other relevant matters under paragraph (p). The defendants assumed from the disparity in ages that the relationship could not be a sexual one. As set out earlier, I find that it was. In my view, the facts that the plaintiff was so much younger than the deceased, by nearly 35 years, that they met when he was only 17 and the deceased 52, and that a close relationship endured between them for the next 30 years, support the contention that the deceased had a responsibility to make provision for him. This is because the relationship was such a shaping force in the life of the plaintiff. There is no evidence of any other similarly significant personal relationship in his life, other than to his natal family.

Section 91(4)(f): any obligations or responsibilities of the deceased to the plaintiff and beneficiaries

176 The deceased owed no legal obligation to the plaintiff or the beneficiaries. In particular, the plaintiff has not asserted any equitable obligation arising from his reliance on any promises of support made to him by the deceased. He relies on the moral obligation arising from all the facts and circumstances of their relationship.

177 The plaintiff concedes that the deceased owed the usual moral obligations to his children arising from that relationship, particularly having regard to the physical and mental disabilities of his sons Andrew and Jay. The deceased's grandchildren are also residuary beneficiaries, but there is no evidence that could support any particular obligation owed by the deceased to them.

Section 91(4)(g): the size and nature of the estate and any charges or liabilities to which it is subject

178 I have set out earlier the nature of the estate. A significant item in the estate is the house at 32 Joynt St, which is owned by Glen Linton Pty Ltd and has been occupied by Melanie and her family for many years. Her evidence is that she was told by her father that the company purchased the house in 1988 for $145,000[144] which purchase was financed by a mortgage, now discharged. I take into account Melanie's evidence that her father told her that the house owned by Glen Linton Pty Ltd would eventually be hers, and that she has expended funds on that house on the basis of those promises. Her evidence is that the amount of money she has spent on renovations on the faith of these promises would exceed $72,000.

179 The house is now valued in the company accounts as at 30 April 2011 at $800,000.[145] It would appear that it has appreciated considerably in value, even taking into account the renovations undertaken by Melanie. A consequence of the company ownership is that, even without an award to the plaintiff, the house could not be transferred in specie to Melanie without the estate having to pay capital gains tax. If the shares in the company were to be transferred, to effectively give her ownership, then at their current value it is possible she could be required to offset that transfer by an injection of funds into the estate. It is not possible on the evidence to reach a conclusion, or to calculate that sum, as the accounts were not the subject of detailed evidence in chief or cross examination. The gross asset figure for Glen Linton Pty Ltd is said in the 30 April 2011 accounts to be the far greater sum of $1,340,691, arrived at after taking into account cash of $323,665, investments of $216,091 as well as the house value of $800,000 and other small components. The net figure of $891,291 is arrived at after deduction of projected tax on sale, and debts or shareholder loans to Andrew, Melanie and the estate.

Section 91(4)(h): financial resources (including earning capacity) and the financial needs of the plaintiff and any beneficiary at the time of the hearing and for the foreseeable future

Section 91(4)(i): any physical, mental or intellectual disability of the plaintiff or any beneficiary

Section 91(4) (n): liability of any other person to maintain plaintiff

180 The plaintiff at trial was employed, and had been for about a year, as a housekeeping manager at a Whitsundays resort. His current income is $3920 net per month. His evidence is that the position is not necessarily permanent, as it is a one year contract renewal annually. His monthly expenditure as set out in his affidavit of 2 June 2011 is $3,731 i.e. there is little excess to save. His expenses include university fees for his nephew and niece. He owns no real property in Australia but owns land in the Philippines valued by him at $50,000 -$70,000US[146]. His sister has built a house on this land. As at that date he had a small amount of savings ($5,426) and modest superannuation of $54,731.72 accessible only on retirement. To the extent that his financial position has been depleted by the assistance he has given over many years to his family in the Philippines his evidence is that the deceased encouraged him to do so.[147] There is no other person with any obligation to maintain him.

181 When he swore his initial affidavit on 6 October 2009, the plaintiff was unemployed, having ceased his most recent employment for Disney cruises in September 2009. He expressed concern that he may not be able to obtain another contract with Disney cruises. It appears that he was able to do so, as his evidence at trial was that he worked for the Disney line until March 2010. He also expressed concern that the work on the cruise lines was too demanding for a person of his age, then 48 years, and that that work provided little security or other benefits. The plaintiff is now 51 years old. He has been able to secure other employment, and in Australia where he wishes to live. There is no evidence of any health related reason why he could not work until the usual retirement age of 65 years, and although the industry in which he works may run on contract rather than permanent employment it appears that with the exception of periods in 2002 and 2004 and perhaps for a period between March 2010 and taking up his employment in the Whitsundays he has been able to obtain work. His financial situation is not strong, but I do not consider that it in isolation would support a responsibility in the deceased to provide for him.

182 Melanie is employed as a school teacher on a salary of $81,806 p.a. She has superannuation at retirement age and a retirement plan in the order of $243,693. She is currently aged 53 years and is married with two children, aged 33 and 23 years respectively. Her evidence is that her son, who is 23, is a student and still living at home and dependent on her. As at the trial, she held $40,866 in savings (together with a running account of $4,400 shared with her husband which she does not use), with liabilities of $15,665.33. She does not own any real property, and has lived for over twenty years at 32 Joynt St, the property owned by the deceased's company. She and her husband pay rent, currently, $9,500 p.a. to the company, and have done so throughout their occupation. There is no evidence as to whether or not this is a market rent, although as it equates to $182.69 per week, for a property valued at $800,000 it may not be. Her husband's salary is $55,000 p.a. gross, and he has modest superannuation only. There is no reason on the evidence why they would not both work until retirement age.

183 Bronwen separated from her husband in January 2007. She is in a de facto relationship with a man aged 62 years who she employs at the Mansfield Zoo, which she owns through a company together with her estranged husband. She values the Zoo at $800,000, and she and her estranged husband also own shares she values at $70,000. The Zoo was at trial subject to a liability of $176,000 leaving an equity of $624,000. Her evidence is that she is dependent on her inheritance to make a family law settlement with her husband, who was, as at the date of the trial, seeking a family law settlement of $400, 000. He is on a disability pension. She says her father told her he would make sure that she would not lose the Zoo due to the separation from her husband. Her only personal assets are furniture and a very small amount of savings, although she has access to a car owned by the company which runs the Zoo. She has two children, the elder of whom, her daughter, is now largely independent. Her younger child, a son now aged 13 years, has suffered from vision problems and she had previously been told that he would always lag academically behind his peers and require special medical and educational assistance. As at trial his health and academic prospects had improved.

184 Her evidence in chief was that the company Taming the Dragon Pty Ltd which runs the Zoo is not very profitable. The profit and loss statement for the year ended 2010 shows gross profit from trading of $99,380 but expenses of $112,602 resulting with other losses in a loss of $15,764 before tax. In her affidavit sworn December 2009 Bronwen said that her personal income for the year ended 2008 was $25,217 and that she expected her income for the 2009 year would be about the same. These figures were not updated for the trial. While her immediate income position may not be strong, it appears from the superannuation accounts exhibited to her June 2011 affidavit that her position on retirement is secure. The statement of financial position as at 30 June 2010 for the personal superannuation fund for herself and her husband shows accrued benefits of $272,743 for her and $296,741 for her husband. She was also not able to say with certainty what the unpaid present entitlement of $213,295 in the accounts of Keeshan Pty Ltd, the trustee of her family trust, represented, although she believed that it may be an entitlement to Taming the Dragon Pty Ltd, rather than to her personally. There is no reason on the evidence why she would be unable to continue working until the usual retirement age.

185 Andrew is profoundly disabled, being autistic, intellectually disabled and with motor retardation. He lives in a community service unit with 24 hour care. There was no evidence that this accommodation and care was anything other than secure. He receives the disability pension and a mobility allowance, and a term deposit of $15,000, perhaps substantially from the legacy of $10,000 he received from his grandmother. There is no evidence of any particular need for financial assistance arising from Andrew's medical problems and limited income, although it is reasonable to assume that the income stream which the will would afford him will give added financial security for any needs that arise.

186 Jay suffers from mental health problems and what he regards as a consequential opiate dependence. He is unable to work. His evidence is he was first diagnosed with agoraphobia and a personality disorder in 1996 to receive the disability pension. His evidence is corroborated by Exhibit 17, a certificate from the North Yarra Community Health which states that he is on a opiate substitution program and confirms a history of mental health problems. He also take other medication as required. His only income is $700 per fortnight by way of disability pension and his only assets a boat, bought in 2005 with some family assistance on which he lives, a 1999 car bought with the deceased's help four to five years ago, now estimated to be worth between three to five thousand, and some tools. The boat was purchased for $25,000 and is subject to a loan which Jay is repaying at $133 per fortnight. He also is required to pay child support for his two children.

187 The grandchildren are also beneficiaries, but only on the death of Andrew and Jay. There is no evidence to suggest that Andrew and Jay may not live normal life spans. The only grandchild who may have special needs, on the evidence, is Bronwen's son, but his health and academic prospects had improved by the trial. Given that the grandchildren may not inherit for some substantial time, and there is no evidence that any will have particular needs at that time, I do not consider their situation is sufficiently proximate to be further considered.

188 Of all of the immediate beneficiaries and the plaintiff, Bronwen is in the strongest financial position. She has substantial financial obligations to her estranged husband, but also substantial assets including real property, a business and superannuation. Melanie's income and position on retirement are secure, but she owns no real estate in her own right, and it is unclear whether or not she will be able to service any loan if that is required to buy out the other beneficiaries so as to continue living at 32 Joynt St. Jay is in a poor financial position, as is Andrew. The life interests granted by the will would enable them to supplement their income from the disability pension with the income from their shares of the estate, which on the defendants' figures would be the income on $587,762 each. At five per cent this would be $29,388 p.a. each. This would, for example, enable Jay to rent a comfortable house in which to live, and better assist his children. It would give a buffer for any extra financial assistance required by Andrew.

189 The plaintiff has no real estate in Australia, and no apparent means by which he could purchase a home here. Sale of the land in the Philippines, even if possible given that his sister lives on a house there, would not generate sufficient for other than a small deposit, and it is unclear whether the plaintiff would be able to service a loan the size required to purchase even a modest property. While the plaintiff's lack of real estate in Australia is due in part to the manner in which he has chosen to live and expend his funds, it may also be due to the fact that he always had, until the deceased's death, what he and the deceased regarded as a home to return to at 9 Joynt St.

Section 91(4)(k): any contribution (not for adequate consideration) by the plaintiff to the building up of the estate or the welfare of the deceased or family of the deceased

190 The plaintiff did not contribute materially to the building up of the deceased's estate. I find that he did contribute meaningfully to the deceased's welfare, by virtue of their long and affectionate relationship. All affectionate relationships do so, however, including those of friendship. The emotional support given by close friendship is not sufficient to create a moral duty to reciprocate by financial provision, and I put the emotional support afforded by email or telephone contact after the plaintiff began working overseas for extended periods in this category. In my view the type of emotional or practical contribution that would normally be contemplated by this criterion is that given in person, and so in later years this was limited to the occasions when the plaintiff returned to Joynt St. I accept his evidence that he did care for the deceased on these occasions as required, in particular, in September 2008 after the deceased had had a heart monitor inserted. I do not consider that this assistance is sufficient to create or increase the moral duty owed to the plaintiff.

Section 91(4)(l): any benefits previously given by the deceased person to the plaintiff or any beneficiary

191 It is common ground that the deceased provided a benefit to the plaintiff by affording him accommodation while he was in Australia, and keeping his possessions at Joynt St while he was overseas. I consider that this flowed from the affection the deceased held for him, the deceased's pleasure at his return and desire that the plaintiff live at Joynt St, which the deceased continued to describe as the plaintiff's "home". Accordingly, I do not consider that any accounting need to be taken of this factor.

192 The continued use of Joynt St as the plaintiff's residence in Australia flowed from what I have found to be the domestic relationship between the deceased and the plaintiff at least between 1985-1996. The defendants assert that the plaintiff's accommodation during this period should be regarded as a benefit, as he was not charged rental. I consider this is to ignore what I have found to be the mutual use of the property during that time as a shared residence for domestic partners. I regard the fact that the plaintiff, rather than the deceased, undertook the household tasks during this period and perhaps during all periods he lived at Joynt St, as a matter agreed between them in that relationship, rather than a form of payment for accommodation.

193 Evidence was also adduced about loans by the deceased to the plaintiff. The deceased on occasion grumbled about the plaintiff's handling of money, to Melanie and to his accountant, but I accept the plaintiff's evidence that all loans were repaid. I consider that in any event any loans were negligible in the scheme of things.

194 This factor also requires consideration of any benefits to any beneficiary. The defendants deny that any significant benefits had been provided by the deceased to his children. I have queried earlier in these reasons whether the rent charged Melanie for 32 Joynt St may not have been a benefit, if it was below market rent. Counsel for the plaintiff did not raise this in cross examination of Melanie or make any submission to this effect, and so I do not make any finding.

Section 91(4)(m): whether the plaintiff was being maintained by the deceased before his death and, if relevant, the extent to which and the basis upon which the deceased had assumed that responsibility

195 I take this criterion to refer to past assumption of responsibility to maintain, not projected or promised maintenance. I will address the promises made by the deceased about various businesses under paragraph (p).

196 The plaintiff was not financially dependent on the deceased other than in the early years when the plaintiff was unable to work, or in later periods of unemployment. I have discussed the accommodation provided by the deceased to the plaintiff above.

Section 91(4)(o): the character and conduct of the plaintiff or any other person

197 On the first day of the trial I ruled inadmissible certain evidence as to the conduct of the plaintiff that the defendants sought to adduce. There is no other evidence of any disentitling conduct on the part of the plaintiff. The plaintiff in his evidence struck me as a person of quiet dignity, and a gentle and affectionate nature. The deceased was clearly a man of great energy and generosity, who into his 80s was still travelling overseas, investigating new business propositions and giving his time regularly to play the organ and do volunteer work at a nursing home with his friend Mr MacManus. He was a complex man, described by members of his family as controlling and manipulative, but also on occasion very charming. He was never able to openly acknowledge his attraction to men, although the tone of his emails to Mr Amper in particular, and his sponsorship of the plaintiff's immigration to Australia suggest that it was a driving force in his life. His emails to the plaintiff show his ongoing concern for his children (in particular Jay), knowledge of their activities and involvement in their lives, and I accept their evidence that they in turn loved him and were in frequent contact with him.

198 I discuss below the significance of the deceased's conduct in making promises to the plaintiff that he would buy a business for him to manage, if the plaintiff returned home. Counsel for the plaintiff has also invited consideration of the deceased's conduct in having a sexual relationship with another man, or men, as a factor that may add to a moral duty to make provision for the plaintiff. In my view this conduct is relevant principally to the determination of the nature of the relationship between the deceased and the plaintiff, and would not add to any duty to provide if that relationship itself did not create a duty.

Section 91(4)(p): any other matter the Court considers relevant

199 The first matter I consider under this heading is the pattern of the deceased's last and earlier wills. The defendants rely on the fact that, notwithstanding his professed desire to make provision for the plaintiff, the deceased did not change his will. This is not a case of a very old will, made before the commencement of the relationship on which the applicant relies (as, for example, in Forsyth). The deceased was clearly assiduous in updating what provision should be made for others by his will, as he drew up four wills in the space of 19 years, at about the same intervals of about five years between each will.

200 All of the four wills appoint his two daughters as executors and trustees and the primary provision in all four is for his four children. The wills differ as to the respective amounts for his children, and as to whether there are legacies to others. In his 1989 and 1999 wills, the deceased devised a legacy to the plaintiff (in his 1999 will described as "my friend of some twenty years"), and also in his 1999 will he devised $20,000 to his former wife "to make her life easier until such time as her mother dies". The gift was conditional on Mrs Robins' mother not predeceasing the deceased, as he stated that he believed that Mrs Robins' mother would amply provide for Mrs Robins. The 2005 will, the subject of the grant of probate, removed all legacies and made equal provision by share for the children, although Jay and Andrew's shares were to be held in trust.

201 The last will was made after the plaintiff had worked overseas for some years, and, in particular, after he took up another overseas contract in December 2004 and thereafter returned for short periods only. I do not consider, however, that I can safely draw any conclusion as to the deceased's intentions in removing the legacy to him. No reason is stated in the will, and a legacy was also removed in the 1994 will, then reinstated, and in a higher amount, in the 1999 will. There is no obvious change in the nature of their relationship, or any other fact, disclosed in the evidence to explain these changes. In particular, in 1994 the plaintiff was still living full time with the deceased, and in June 1999 when the 1999 will was drawn he was working away from Joynt St, and had been since 1996. Counsel for the third and fourth defendants sought to link the plaintiff's omission from the 1994 will with the lease he took out for Ellesmere Parade in 1995. I do not think any such link is established. I accept the plaintiff's evidence that the lease was for his aunt and cousin, and that while he stayed there on occasion, he did so with the deceased.

202 I consider the clearer and more persuasive indications of the deceased's intentions as to financial provision for the plaintiff are to be found in what he told him, and what he did in investigating various businesses. I repeat my detailed conclusions in relation to the business proposals earlier in this judgment. This is not just a case of a general promise to the plaintiff to make financial provision, not acted upon by the testator or corroborated. The promises were specific, repeated on a number of occasions over at least the last year of the deceased's life, made not just to the plaintiff but also corroborated by what the deceased told others (his accountant, Mr MacManus), and the deceased took substantial steps to implement them. Mr Christodoulou's evidence corroborates the plaintiff's that the deceased took real steps to investigate the various bars or businesses in question, both by investing his time and paying others for expert assistance.

203 Counsel for the plaintiff has drawn my attention to the commentary in the service which discusses a number of New South Wales authorities as to the relevance of promises made and expectations raised by testators. In Vukic v Grbin[148] Brereton J. did not limit the relevance of such promises to cases where a claimant has relied on them to his detriment. He stated:

Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant...This is particularly so where a claimant has relied to his or her detriment on any such promise or expectation. (emphasis added)

204 I do not consider it necessary for the plaintiff to show that he suffered any financial detriment by acting on the promises made to him and returning. Further, if part of the deceased's intention in making the promises to the plaintiff that he did about a business was to manipulate him into returning home, then in my view this does not diminish the significance in the plaintiff's case of these promises, and in fact adds to it. First, it shows that the deceased trusted the plaintiff and wanted to be looked after by him in his declining years, rather than a family member. Secondly, it would be unconscionable for a testator to manipulate a loved one in this way, without making financial provision for him or her. If the deceased in truth did not plan to carry out his promises in my view this would add to any moral obligation to make provision for the plaintiff after his death.

205 The deceased told the plaintiff, as evidenced by his second email to him on 29 September 2007 (quoted earlier in this judgment) that he wanted to set him up "in a suitable situation which will not depend on my family's good will." Mr Christodoulou's evidence is that the deceased in his life totally controlled his own finances, and so financial provision for the plaintiff was not dependent on the family's good will. One possible explanation for the absence of financial provision in his will for the plaintiff is that the deceased may have considered that this would not be the situation on his death. While of course he could have made specific provision by legacy for the plaintiff in his will, his intention throughout all his four wills was that his daughters be his executors and trustees, and so responsible for the calling in and administration of his estate.

206 This is a possibility, rather than a reason established on the evidence and I make no finding to this effect. I do consider, however, that the deceased's intention to make financial provision for the plaintiff independent of his family is an additional reason for drawing no conclusion adverse to the plaintiff from his omission in the 2005 will.

207 I have also taken into account the undated form of will apparently executed by the plaintiff, which does not make any gift to the deceased. I do not consider this establishes any detriment to the plaintiff's case. His evidence is that the deceased drew up this document for him, and I infer that the deceased's intention was to protect the interest of his company in repayment of the loan to the plaintiff to purchase a car.

208 I find that the deceased had a responsibility to make provision for the plaintiff by his will having regard to the following aspects of their relationship:

• Its duration, from 1978 (when they first met and commenced a sexual relationship, strengthened by visits to the Philippines by the deceased and to Australia by the plaintiff in 1983) to the deceased's death in 2008;

• That they were domestic partners for more than ten years of that time, between 1985 and 1996, and, possibly, until December 2004;

• That a relationship of affection, sexual intimacy, care and emotional support continued between them after December 2004 through email and telephone contact while the plaintiff was overseas and in person on his regular returns to Australia;

• Their mutual intention just prior to the deceased's death to resume a relationship as domestic partners;

• The disparity in ages between them, and, in particular, that the plaintiff was so young when they first met;

• The deceased's intention to buy a business in which the plaintiff could work and over time acquire equity, as expressed by words and actions to both the plaintiff and others;

• That the relationship between them was, on the evidence, the most significant personal relationship of their lives, other than with their respective families.

209 In addition I have had particular regard to the fact that the estate is sufficiently large to make appropriate provision for the plaintiff without depleting the intended provision for the deceased's children unduly, taking into account their respective financial and life situations.

210 The will made no provision for the plaintiff. He has a modest income and modest assets only, and although he may well be able to work until the usual retirement age he does not have adequate superannuation or other funds to support him at that time, and no permanent home in Australia. I consider that the will did not make adequate provision for him.

211 Accordingly, I find that the Court has jurisdiction to make an award of provision.

212 In determining the amount of provision to be ordered, the Court is required to have regard to the same statutory criteria as in relation to the determination of jurisdiction. In evaluating those criteria, the test is not what the testator would have done, but what a hypothetical just and wise testator should have done, having regard to current community standards. Further, in determining the amount to be awarded the Court is required to be conservative and cautious, so as not to trammel unnecessarily on the freedom of testation.[149]

213 The plaintiff sought $900,000 on the basis that this would be sufficient to purchase a home, capital to acquire an income stream and a nest egg. This submission was on the basis that the Court found that the deceased and the plaintiff were domestic partners at the deceased's death. I have not so found. The fallback case of the plaintiff, should I not find that he was the domestic partner of the deceased, did not identify any particular sum as appropriate, although counsel appeared to concede it would be less, and no measure was suggested by the plaintiff for determining the appropriate amount. There is also no evidence adduced by the plaintiff as to any particular needs or wishes, for example, as to where he wishes to live in Australia and what the cost of housing there is, or any particular proposal to secure an income or better his retirement prospects.

214 The defendants propose that, in the event that the Court considers an award should be made, it be in the order of the previous legacies i.e. about $50,000. Both the plaintiff and the defendants devoted most of their attention in their respective cases to the question of jurisdiction, and the nature of the relationship between the plaintiff and the deceased, rather than to the amount of any award, if jurisdiction was established.

215 Having regard to the statutory criteria, I consider that the defendants' proposal is too low. It pays insufficient regard to the nature of the relationship between the deceased and the plaintiff as found by me. It also focuses too greatly, in my view, on what the deceased himself did in the past, although this is a relevant factor to be considered.

216 I have considered three other possible approaches to the determination of the appropriate amount, having regard to the statutory criteria, including other relevant matters. The first is to give greatest weight to the expressed intention of the plaintiff and deceased to resume their cohabitation as domestic partners, and regard the periods during which they did not live together as a hiatus. This would suggest that an appropriate amount should be awarded to allow the plaintiff to secure housing at least. There is no evidence as to what that amount might be. The home at 9 Joynt St sold in 2009 for $651,000 but there is no evidence or submissions as to whether or not this type of accommodation would be an appropriate measure. I do not consider in any event that this is the appropriate way to proceed, because the plaintiff and deceased had resumed cohabitation at earlier times, after the plaintiff first worked away, in 2000-2002 and in 2004, and the plaintiff then accepted overseas work again. I think in these circumstances the resumption of cohabitation could only be conclusively determined in retrospect, and so provision to the extent of the full cost of a home may not be appropriate.

217 The second approach I have considered is equal division as between all five people to whom the deceased owed a moral responsibility to make provision, given their relationships with him, their financial positions and promises made to them. This is his four children and the plaintiff. This approach would result in approximately $500,000 to each of the five before legal costs, and less after. Looking at the matter this way may have been implied in the closing submissions of counsel for the plaintiff. This approach would, however, equate the relationships in a way that I think current community attitudes would not consider appropriate, given that the relationship with the plaintiff was concealed, to the plaintiff's knowledge, from both their families and never acknowledged explicitly even to friends. I accept that the community, and indeed the Act itself in the case of an intestacy, considers that partners, whether homosexual or heterosexual, rank on death ahead of adult children, but the plaintiff was not the deceased's partner at his death, and to give him even equal standing would be to rank as equal to the relationship between parent and child a relationship that neither party felt able in life to publicly acknowledge.

218 The third approach I have considered would be to give particular emphasis to the promises made by the deceased to the plaintiff, about the purchase of a business to afford him financial security. The plaintiff's evidence about the last three business proposals, the De Biers bar, the Tattslotto outlet, and the brothel, is that the figures identified by the deceased were respectively $370,000, $250,000-$300,000 and $370,000-$400,000. The figure for the De Biers bar is corroborated by one of the deceased's emails, and the plaintiff's evidence is that they subsequently agreed on the purchase of the brothel.

219 The plaintiff's evidence is that the deceased told him that he and Leon would jointly own "a business that will own the business"[150] i.e. that the business would be jointly owned from the start. The email of 4 July 2008 confirms that this is the way the deceased described it to him. The better view on the whole of the evidence, and I so find, is that the deceased intended that the plaintiff would acquire equity only over time, and would contribute by managing the business. I consider that it is unlikely that the deceased would have intended that the plaintiff acquire over time more than a 50% share, and he may have only ever intended less. The deceased's intentions in this regard are of course not in themselves determinative as to the amount the Court considers appropriate, as all the statutory factors must be considered, including what he told the plaintiff.

220 An award of the full amount of the capital investment the deceased had promised to make for the plaintiff would be in the order of $400,000, but such award would not reflect the deceased's intentions, that the business had not yet in fact been acquired, and that the plaintiff will now not be required to acquire a capital sum over time. An award of half this amount, being the maximum of what the deceased may have intended over time, would not be sufficient in my view having regard to the relationship between the plaintiff and deceased.

221 I am also conscious that the award should not have undue impact on the amount to be distributed to the children. Their financial positions and promises made to them in life by the deceased are also important considerations. Melanie in some ways could be regarded as being in a similar position to the plaintiff in relation to such promises. She was encouraged by the deceased to believe that the money she was contributing to 32 Joynt St, both by way of rental over many years and by way of improvements, was not wasted because the house would ultimately be hers. Its current value and the fact that it is owned by the company could make this problematic if the amount she is to receive is substantially reduced. Similarly, the plaintiff was encouraged by the deceased to believe he had a home in Australia at 9 Joynt St, and that financial provision would be made for him by the acquisition of a business. The deceased also made promises to Bronwen, and evinced a desire to assist Jay.

222 Having regard to the factors which favour a substantial award to the plaintiff (the duration of the relationship, its closeness, the shared intention to resume cohabitation, the promises made to him, his lack of financial security) and those which require limitation of such an award (the competing moral claims of a parent/child relationship, the financial needs of the children, the promises made to them, the testator's wishes as expressed in the will and caution as to whether a continuing resumption of cohabitation would have occurred) I consider the appropriate award to be $300,000.

223 In relation to the relationship, in my view, the amount I propose adequately reflects both the importance of the relationship to the deceased, but that it had been of limited support to him since the plaintiff began working overseas. It is not so burdensome given the size of the estate that it will unduly reduce the amounts available for the beneficiaries, which I consider will still be sufficient to give significant effect to the deceased's intentions that Melanie acquire 32 Joynt St, that Bronwen be able to retain the Zoo and that there be a financial security net for Andrew and Jay. This sum will in all probability not be sufficient in itself to enable the plaintiff to buy a home in Australia, but it should enable him to make a substantial contribution towards such purchase, if that is what he chooses to do. There is no evidence as to where he wishes to live, and what the cost of accommodation there is. There is no evidence to suggest that the plaintiff will be unable to continue working until the usual retirement age, another 14 years, and so he may be able to service a loan to acquire a home. Alternatively, this sum can some give greater security for his retirement.

WHICH BENEFICIARIES TO BEAR BURDEN OF FURTHER PROVISION

224 Counsel for the third and fourth defendants, Andrew and Jay, submits that if any award is made the burden should be borne by Melanie and Bronwen solely, given the greater financial needs of the brothers. Counsel for Melanie and Bronwen does not demur entirely, but submits that some burden should be borne by the brothers. Section 97(2) of the Act provides:

(2) Unless the Court otherwise orders the burden of any such provision shall as between the person beneficially entitled to the estate of the deceased be borne by those persons in proportion to the values of their respective estates and interests in such estate:

Provided that the estates and interests of persons successively entitled to any property which is settled by such will shall not for the purposes of this subsection be separately valued but the proportion of the provision made under this Part to be borne by such property shall be raised out of or charged against the corpus of such property.

225 No submissions were put as to whether "the values of their respective estates and interests" requires or permits the unconditional gifts to Melanie and Bronwen to be valued differently to the life interests given to Andrew and Jay, although the share of the estate in each case is a quarter. Whether or not this is required by the section, it seems to me material that the brothers' interests are life interests only, and so they will not have the freedom to deal with a large sum of capital that the sisters will, and, depending on what their trustees determine, may receive income only. They are also both in far more limited financial circumstances than their sisters. While this may not be a day to day problem for Andrew, given his accommodation and care seem at present to be secure, it is very significant in my view.

226 I consider that the appropriate order is that Melanie and Bronwen each bear one third of the award to be made to the plaintiff, rather than one quarter, and that Andrew and Jay each bear one sixth of the award. My intention is that two thirds, rather than one half, of the award be borne by the more financially secure sisters.

227 I will ask the legal representatives for the plaintiff to draw orders to give effect to these reasons, and will hear the parties in relation to costs if that is required.

Schedule of passport entries 2002-2008 in plaintiff's Australian passport issued 8.8.2002 (drawn from Exhibit L)

Consolidated schedule of emails between deceased and plaintiff from:

JE-1 Plaintiff's affidavit of 13.4.2010 in reply to Mrs Robins;

JE-32-37 Plaintiff's affidavit of 6.10.2009; and

[1] Per the Court of Appeal in Blair v Blair [2004] VSCA 149; (2004) 10 VR 69 ("Blair") and Forsyth v Sinclair [2010] VSCA 147 Neave JA at [58]-[66].

[2] Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, per Nettle JA at [41]; Forsyth v Sinclair [2010] VSCA 147, per Neave JA at [83].

[3] Forsyth v Sinclair, per Neave JA ibid.

[4] McKenzie v Topp, [2004] VSC 90, per Nettle J. at [63]

[5] Prosser v Twiss [1970] VicRp 29; [1970] VR 225 at 232 per Lush J.

[6] See Forsyth v Sinclair per Neave JA at [85] and following and the cases there cited.

[7] Transcript page 544 line 10-page 545 line 4, and page 571 line 14-page 572 line 7.

[10] Per Harper J. Sinclair v Forsyth [2008] VSC 250 at [41].

[12] [2009] VSC 541, [70], subsequently successfully appealed, but not on this point.

[19] [2009] VSC 47

[20] [2003] VSC 206

[23] Statute Law Amendment (Relationships) Act 2001, amending Part IX of the Property Law Act 1958, now enacted in the Relationships Act 2008.

[24] See, for example, the observation by counsel for the third and fourth defendants at transcript page 515 lines 16-21 that if the plaintiff had been female "There would have been a much more overt arrangement and there would have been a coming out by saying "look we are in a sexual relationship".

[25] Affidavit sworn 6 October 2009, paragraph 62.

[27] JE-15 and JE-18 to the plaintiff's affidavit sworn 6 October 2009.

[29] Affidavit sworn 7 December 2009, paragraph 10.

[31] Affidavit sworn 3 December 2009, paragraph 24.

[32] Affidavit sworn 18 December 2009, paragraph 13.

[33] Affidavit sworn 18 December 2009, prepared by Mr Thwaites, paragraph 16.

[34] Transcript page 109, lines 4-7 and page 116 line 16-page 117 line 4.

[35] Transcript page 120 line 23-page 121 line 20.

[38] Affidavit sworn 6 October 2009, paragraph 95.

[41] Transcript page 119, lines 12-20 and page 143 lines 8-18.

[42] Affidavit sworn 6 October 2009, paragraph 96.

[46] Transcript page 148 lines 14-15. See also transcript page 162, lines 30-31.

[48] Affidavit sworn 6 October 2009, paragraph 103.

[54] Affidavit sworn 6 October 2009, paragraph 110.

[58] Affidavit sworn 6 October 2009, paragraph 123.

[60] JE-31, which bears the date "01/02/04", which in US dating convention would be the second of January.

[61] Affidavit sworn 6 October 2009, paragraph 125.

[62] Evidence of Mrs Robins, transcript page 426 line 7.

[63] Affidavit sworn 6 October 2009, paragraph 126.

[65] MM-11 to the affidavit of Melanie Jane McDonald sworn 3 December 2009.

[66] Email from the deceased to Mr Amper dated 22 March 2004, part of MM-11 ibid.

[67] Email dated 4 October 2004 from the deceased to Mr Amper.

[69] Affidavit sworn 6 October 2009, paragraph 127.

[70] JE-32 to JE-36 to his first affidavit sworn 6 October 2009; JE-1 and JE-3 to his affidavit of 13 April 2010 in reply to the first defendant, and Exhibit P.

[75] Emails of 15 January, 17 January and 26 January 2007 from the deceased to the plaintiff, part of JE-3 to the plaintiff's affidavit sworn 13 April 2010.

[76] Emails of 14 March, 26 March, and 2 April 2007, ibid.

[80] Transcript page 175, line 27 to page 176 line 12. In later evidence at page 189 he suggested the visit prior to September was in June or July, but the passport entries suggest May.

[83] JE-32 to the plaintiff's affidavit sworn 6 October 2009

[84] Transcript page 261 line 27-page 262, line 4.

[86] Part of JE-3 to the plaintiff's affidavit of 13 April 2010.

[87] Her evidence is for 23 years as at the date of the trial (transcript page 335 line 31) which would place it at 1988, but she also said the home was purchased with a bank loan (transcript page 337) and the date on the bank documents is February 1991 (Exhibit 9).

[93] Transcript page 349, line 18. See also page 356, line 20.

[95] At the time of purchase she was both a shareholder and a director of the company, as well as her father, although at his request she later gave up her shares and directorship.

[96] Transcript page 176 lines 14-17 and page 256, lines 16-24.

[97] The plaintiff's affidavit in reply to Mr Christodoulou paragraph 3 and transcript page 256.

[99] Plaintiff's affidavit sworn 6 October 2009 paragraphs 132-135.

[100] For example, transcript page 181 line 26 to page 182 line 12, page 197 line 24 to page 198 line 11 and page 298, lines 15-27.

[101] Transcript page 297, lines 27-29.

[102] Transcript pages 189-191 and 260

[106] Transcript page 380, lines 22-25

[107] Transcript pages 380-383, quotes being page 380 lines 28-29 and page 381, lines 25-28.

[108] Transcript page 383, lines 11-12.

[110] See answers at transcript page 380, lines 14 and 21, and page 381 lines 9-10 and 24

[111] Transcript page 366, lines 27-30.