It is next necessary to identify the background facts. The following facts are not in dispute, or I am satisfied that they are clearly established by the evidence. It is necessary to include in this narrative, the results of searches carried out on behalf of the Defendant to establish the entitlement of the next of kin on intestacy. Many of the facts set out below are taken from a bundle of documents identified as Ex. 1 in the proceedings.
The deceased was born "Christina Olga Blake", in July 1938, in the United Kingdom. Her parents were identified on her Birth Certificate as Lawrence Brown Blake, and Olga Vera May Blake. They married in January 1935. Their marriage was dissolved in February 1947.
The deceased's mother was born in October 1912 and she died in June 1981.
The deceased's father was born in December 1906 and he died in February 1968.
There were two other children of the marriage of the deceased's parents, being Deirdre, who was born in August 1942, and John, who was born in September 1944.
The deceased arrived in Fremantle, Western Australia, with her mother and two siblings, on 22 March 1947.
Deirdre died in March 2007, leaving three children, namely Sarah Joy Blakesmith, Georgina Olga Smith and Damon Jerry John Smith. Each of these children, who is a niece or a nephew, of the deceased, is alive.
John, who is now known as John Simpson, is alive.
The deceased's mother married Richard Whitby Simpson in December 1947. Their marriage was dissolved in May 1962. There were no children of their marriage.
The deceased's father married Rosina Margaret Hughes in February 1949. There were two children of that marriage, being Lawrence Brown Blake Jnr, who was born in January 1951, and Fiona Margaret Blake, who was born in March 1954. Each is a sibling of the half blood of the deceased.
The deceased married Kenneth Roy Coombes in May 1959. At the date of their marriage, he was aged 26 years and was a bachelor, whilst the deceased was then aged 22 years and was a spinster.
The deceased's marriage to Mr Coombes was dissolved in November 1975. There were no issue of their marriage.
Mr Coombes predeceased the deceased having died, in Queensland, in October 2001. The Death Certificate identifies a child of Mr Coombes, named "Christina", who, in 2001, was said to be aged 49 years. If this information is correct, it is likely that she was not a child of the deceased because the marriage of the deceased and Mr Coombes did not take place until 1959. There is no evidence that the deceased knew Mr Coombes in 1952.
The Defendant has carried out searches to locate a Will of the deceased at the premises where the deceased had lived prior to her death (in premises at Paddington), the bank (Westpac Banking Corporation) where the deceased held an account, at the Presbyterian Aged Care in Paddington, where the deceased resided immediately before her death, and also in the Defendant's Index of Wills. No Will, or other testamentary document, has been located. Nor was the identity of any solicitor who had acted for the deceased ascertained.
As stated, this court granted Letters of Administration on intestacy to the Defendant on 21 August 2013.
In the Inventory of Property attached to the Letters of Administration, the deceased's estate was disclosed as having a gross value of $778,911. The estate was said to consist of real estate at Paddington ($700,000) ("the Paddington property"), and money in a bank or financial institution on deposit ($78,911). There was no property owned by the deceased as joint tenant with another person and no liabilities of the deceased were disclosed.
There is no precise evidence of the date of purchase of the Paddington property, but there is no dispute that the deceased purchased it many years before she is said to have met the Plaintiff. It appears that the deceased purchased it in the 1970's.
The deceased's sole income at the date of her death was a pension. There is no evidence that she disclosed to Centrelink, at any time, that she was living with the deceased in a de facto relationship.
A Notice of Intended Distribution of the estate of the deceased was published in the Sydney Morning Herald on 2 September 2013.
In an affidavit sworn on 6 August 2014, by Ms S Bullen, the Branch Manager of the Sydney Operations Centre (of the Defendant) where the estate of the deceased is being administered, liabilities totalling $571 were disclosed. In addition, Ms Bullen disclosed likely testamentary expenses totalling $26,939, including real estate agents' commission on sale (calculated at 1.98%) ($10,098), advertising costs of sale ($4,200), legal costs of sale ($800), administrator's commission ($11,574) and water rates ($267).
In an affidavit sworn on 20 March 2015, by Ms A Atlihan, the Assistant Branch Manager of the Sydney Operations Centre, the deceased's estate was disclosed as having a current gross value of $803,367. The estate was said to consist of real estate at Paddington ("the Paddington property") ($765,000), cash in the Defendant's Estate Ledger account ($38,222), and interest thereon ($145). Likely liabilities of the estate amounting to $34,394, were disclosed, including real estate agents' commission on sale of the Paddington property (calculated at 2.2%) ($16,860), advertising costs of sale ($4,200), legal costs of sale ($1,000), and the balance of unpaid executor's commission ($12,334). (Executor's commission of $3,305 has been paid.)
Although no specific amounts were disclosed in this affidavit, it was said that there may be additional liabilities, for tax, as well as the administrator's legal costs of these proceedings.
(I should mention that the Paddington property has not been sold, because in July 2014, following a contested hearing, the Plaintiff (then represented by Mr Brown) obtained from Robb J, upon the usual undertaking as to damages, an injunction, until further order, restraining its sale.)
In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs, to the extent that he has any, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendant, as administrator, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate.
I have dealt with the principles that apply to the costs of a self-represented litigant in Romascu v Manolache (No 2) [2012] NSWSC 87, at [27]-[31]. It is not necessary to repeat what I wrote in that case. There is no evidence by the Plaintiff of any costs, or out of pocket expenses, that the Plaintiff has incurred. However, it appears, from the court's records, that two payments, one of $999, and the other, of $1,028, have been made by the Plaintiff. (The source of the funds paid by the Plaintiff is unknown.)
Mr Wilson, in an affidavit sworn on 24 March 2015, estimated the Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the ordinary basis (inclusive of GST and upon the basis of a three day hearing), to be about $49,500. On the third day of the hearing, it having been raised with counsel for the Defendant, leave was sought to file a further affidavit, which estimated the Defendant's costs and disbursements, calculated on the indemnity basis, at $61,500.
Because the Plaintiff did not object to the filing of the affidavit, and as the usual order for costs in the case of a Defendant is for costs to be calculated on the indemnity basis, I granted leave to file the further costs affidavit.
The parties accepted that, for the purposes of the hearing, I should determine the Plaintiff's application for a family provision order, if that becomes necessary, upon the basis that the estimated value of the net distributable estate, after the payment of the estimated expenses, any other liabilities of the estate, and such costs as ordered to be paid out of the estate (using the Defendant's costs estimate set out), will be about $705,450.
As stated, the Defendant disputes that the Plaintiff is an eligible person within the meaning of that term in the Act. Therefore, it will be necessary to determine whether the Plaintiff is an eligible person in the event that he is not found to have been a party to a domestic partnership with the deceased immediately before her death. No other eligible persons have been identified, although since a family provision order is sought, the prescribed form of notice has been given to the deceased's brother, John, (as a potential beneficiary of the estate on intestacy). He has not participated, in any way, in the proceedings. There is no evidence that a prescribed notice has been given to any other potential beneficiary. In the circumstances of the case, I am satisfied it is unnecessary to do so.
The court was provided with a copy Google map search that depicted the front of the Paddington property and the neighbouring row of houses (Ex. 2). The court was also provided with 17 photographs (Ex. 3) depicting the state of the Paddington property following the death of the deceased. There is no suggestion that it was in any different state prior to her death. (I shall return to this group of photographs later in these reasons and the evidence given in respect thereof.)
[2]
The Affidavit Evidence upon which the Plaintiff relied
Much of the Plaintiff's evidence is the subject of dispute. He relied, principally, upon the matters asserted in, and the documents annexed to, his own affidavits, as well as the evidence of only one witness, Ms G K Fitzmaurice. As stated, he was cross-examined.
The Plaintiff was born in Iraq, Baghdad, where he lived until the age of 23 years. He then left and travelled to Athens, Greece, in June 1979. With the assistance of the Red Cross, in June 1980, he migrated to Australia, arriving, first, in Melbourne. He stayed in Melbourne for about 6 months and then travelled to Sydney.
In his affidavit made on 7 August 2014, the Plaintiff did not say when he first met the deceased, but his evidence suggests that it was in about January 1996. He said also that in mid-January 1996, she gave him $400 to pay rent arrears. He stated that between March 1996 and May 1999, he lived with the deceased. He says that they had an intimate relationship during this period.
The Plaintiff says that later, in 1996, the deceased gave him $6,000 to repay some "state debt recovery fines"; in 1997, she gave him another $5,000, "so I could deal with some of my financial issues"; and in 1998-1999, she gave him another $5,000.
His evidence about this period is somewhat sparse and it lacks any real detail. There is no corroboration of the evidence that he gives.
The Plaintiff stated also, in the first affidavit, that he subsequently went to look for work in Melbourne, but returned after one week. He then lived, he says, one or two days a week, in various rented accommodation in Lewisham, Petersham, Enmore, Summer Hill, Croydon and then Chester Hill, but, at other times during this period, he lived with the deceased. He stated that in early October 2012, having been evicted from his accommodation because he owed $1,000 in rent, he returned to live with the deceased on a full time basis, where he remained until she died.
The Plaintiff gave evidence of what the deceased had told him, namely that her mother's name was Olga (meaning "holy"); that she married Kenneth at the age of 21 years; that she had come to Australia, from London, at the age of "9 years… with her parent and sister and brother"; that she was older than her sister and brother; that she had bought the Paddington property when she was 38 years of age; she had been a teacher of sculpture and painting at North Sydney college for boys; that she had started selling her paintings at the Holdsworth Gallery in Woollahra and the Goodhope Gallery in Paddington in the late 1960's.
The Plaintiff gave evidence also of what he did for the deceased, including shopping for her and buying food for her cats, cooking, washing and raking leaves in the back yard. He also says that he painted the window frames, and door frames, put a plaster interior coat on the house and painted it, and with the deceased's assistance, he put up wallpaper in the lunch room and an upstairs room, and replaced the vinyl in the kitchen. (In cross-examination, he acknowledged that this was early in the relationship.)
The Plaintiff also gave evidence of the ways in which the deceased assisted him, including, that she helped him financially to pay his rent at times; that she provided other money to assist him to pay some debts; and that she permitted him to live with her at various times before, and then on a full time basis. He also said that she paid him $200 per fortnight "on a regular basis for a period of 14 years since 1999". He also asserted that the deceased would otherwise support him, "because I was unable to support myself from my own resources".
The Plaintiff described the activities that he and the deceased engaged in together, including attendances at the Captain Cook Hotel, at Moore Park; attendances at the Chauvel Cinema, and the Verona Cinema, at Paddington; they would go to the Paddington RSL; and to "Argentina tango classes…in Darlinghurst". He also said that they would walk "around the Paddington area, holding hands, hugging, kissing, greeting people passing by and socialising [with] them". He stated that the difference in their ages did not matter, the deceased stating that "age was only numbers". (At the date of the deceased's death, the deceased was almost 75 years and the Plaintiff was 57 or 58.)
He stated that in April 2013, the deceased was unable to move the left side of her body and that he alerted a neighbour to call an ambulance. The deceased was taken to St Vincent's Hospital where she was diagnosed as having suffered a stroke. The Plaintiff said that he continued to live in the Paddington property, minding the house, and looking after the cats. He said that he "did not like to go to the Hospital because I don't like the smell of it".
The Plaintiff also stated that he visited the deceased on one occasion after she had been moved from the Hospital to respite care, when he massaged her feet, her back, her neck and her shoulders. He brought her coffee and a muffin. He stated that, on this occasion, he gave the deceased a handkerchief as a present and a card expressing that he was missing her, needed her, and that he would love her forever. He said that he went to visit her, again, on 14 June 2013, but was told that she had passed away. He said that he "left the house after that because I was very upset and overwhelming grieving and I fell (sic) devastated and my live shattered… And the same reason I didn't attend the funeral."
The Plaintiff states that he is homeless and wishes to "return to my house where Christina and I lived".
The Plaintiff read an affidavit filed 19 March 2015, in which he stated that he was "living with Christina not legally married but were 17 years in a relationship as a couple started from 1996 to the last date of her life". During the course of his evidence, the cross-examination (and in submissions), he referred to her, almost invariably, as "my partner".
In support of his case, the Plaintiff produced a letter, dated 23 June 2014, from Centrelink, addressed to him at an address in Woolloomooloo, which stated that, according to its records, the Plaintiff (had informed it) that he was living at the premises at Paddington (the address of those premises being that of the deceased) between 1 October 2012 and 20 January 2013. The letter goes on to state that the Plaintiff advised "Centrelink that Centrelink's understanding is incorrect as you were living at [the address] until 15 June 2013". (This evidence is almost the high point of the Plaintiff's case on the allegation that he lived with the deceased, at least so far as the period between October 2012 and January 2013 is concerned.)
However, the document also revealed, inconsistently with the Plaintiff's case, that between 22 January 1996 and 31 May 1999, his "Historical Home Address" was "Illawarra Rd, Marrickville". (As stated earlier, there is no evidence that the deceased informed Centrelink that she was living in a de facto relationship with the Plaintiff.)
Nor is there any evidence that the Plaintiff disclosed to Centrelink, at any time, that he was living with the deceased in a de facto relationship. I infer from the letter to which I have referred, that he did not.
I consider that a relevant statement by a party, prior to the commencement of litigation, to public officials, whether consistent, or inconsistent, with a party's case, may assist in the resolution of the issue of the nature of the relationship, but it is not determinative. Such statements may be taken into account as part of the mosaic of circumstances that the court must consider in reaching the conclusion: Hayes v Marquis [2008] NSWCA 10, per McColl JA, at [99].
To his affidavit of August 2014, there is also annexed a copy letter, dated 16 July 2014, from St George Bank, which refers to the Plaintiff being a customer of the bank since December 2012. The letter was sent by a "Customer Service Specialist" in Ashfield.
However, the letter also states that the Plaintiff's "home address" is the Paddington property. It is not known when the Plaintiff's home address was identified as such, but I infer that he provided that address in about December 2012. (That is consistent with the information contained in the Centrelink document.)
The Plaintiff's affidavit, sworn shortly prior to the hearing stated that he was in receipt of a new start allowance of about $520 per fortnight, all of which he spends during the course of the fortnight. He did not provide any details of the nature of his expenditure. He has virtually no savings in his bank account ($117 as at 16 July 2014).
In support of his claim, the Plaintiff also relied upon an affidavit of Gail Kathleen Fitzmaurice, a Welfare Worker at a lodge run by the Wesley Mission, which lodge provides accommodation and support for homeless persons over the age of 18 years. Her current role is "basic welfare duties". She had worked in palliative care and prior to that in disability care.
Ms Fitzmaurice stated, in an affidavit sworn in April 2015, that she first had contact with the deceased "approximately 15 years ago", when the deceased was outside the front door of her premises at Paddington "looking at pigeons whilst she was feeding her cats". Over subsequent years, she and the deceased had limited contact when each met whilst walking around the Paddington neighbourhood.
Ms Fitzmaurice wrote that she first had contact with the Plaintiff "probably 4-5 years after I made contact with Christine at her property". Later on, she met the Plaintiff whilst he was walking with the deceased. She could not recall where, or when, she first saw them together. She stated that on the occasions she saw them together, they would be "armed (sic) in arm" or they would be holding hands. She concluded, from her observations that they were in some form of relationship. On occasions, she saw them at the local supermarkets, or in a sandwich shop, or together at a coffee shop. Often, she would see them eating together at the Captain Cook Hotel. They would be sitting close together on these occasions. She did not ever see them talking to any other person.
Ms Fitzmaurice also reported that she saw the Plaintiff at the supermarket when he told her that the deceased was in hospital and that he was buying things for them and for the cats. Subsequently, he told her that the deceased had died. She describes him, at that time, as being very emotional and being hardly able to speak.
Ms Fitzmaurice acknowledged in her affidavit that she "cannot say I ever observed [the Plaintiff] at Christine's house." She says that she only "saw [the deceased] a few times at the front of her house early on (15 or so years ago)".
Ms Fitzmaurice considered the Plaintiff and the deceased to be a couple and regarded them as being "extremely close".
Annexed to Ms Fitzmaurice's affidavit was a diary note of a conversation which she stated she had, on 25 July 2014, with a person called "Steve from the NSW Govt Trustees". I infer that this person was Mr Wilson to whom I have referred. The diary note, which was not objected to, is in the following terms:
"Wanted to know:-
How many times I saw them (Wallid (sic) & Christina) together
I said depends, could be once a week, or 3 times in a fortnight, or not for weeks or months and then I might see them 2-3 times in quick succession.
He asked when they became a couple
I said I didn't know - they were friends, then they were a couple
He asked how I knew they were a couple
I explained they shared an intimacy that you could see, they were very affectionate, holding hands, whispering and sharing laughs and always together.
He asked me where they lived and how often I went to the house
I said I knew where they lived in [the Street], but that I had never been inside the house
He asked how long they had been a couple
I said I didn't know - could be 10 years, could be 5, or 7 years, could be 14 years
I explained they were acquaintances, not in my close circle of friends - and that I often saw them together having coffee at local Cafes or at our local pub (Captain Cook) where the former owners served the local community nice and cheap meals (and you often met everyone in the neighbourhood there)
I explained that I was working and travelling and did not know Christina had passed away and was already dead and buried when I found this out.
I mentioned that I had been aware over the years that Christina was not well and spent times in Hospital, when I would encounter Wallid (sic) at Duffys doing the shopping or on his way to or from visiting her. He always spoke to me about her other true loves - her cats (as I am a cat-person and that is how I originally met and got talking and friendly to Christina)'
I mentioned that I knew Christina before I got to know Wallid (sic). I knew they were friends and she taught him improvements to his English - he was always in the background, but I didn't know him as well as I knew Christina as he was a very polite man, but not a conversationalist."
[3]
The Affidavit Evidence upon which the Defendant relied
The Defendant principally relied upon the affidavits of a number of witnesses, some of whom had dealings with the deceased in a professional capacity, for example social workers, a medical practitioner who treated the deceased in 2009, and also some of the deceased's neighbours. Each presented a somewhat different picture to that presented by the Plaintiff and Ms Fitzmaurice.
Ms Bullen, a Branch Manager employed by the Defendant, swore her first affidavit, filed on behalf of the Defendant, as administrator, in which she set out the assets and liabilities of the deceased, at the date of her death. She swore a second affidavit on 18 July 2013 (approximately one month after the death of the deceased) in which she stated that she had attended the Paddington property on 25 June 2013 (one week after the death of the deceased) to take an inventory and to conduct a search for a Will. She states that she observed that:
"…
There was no electricity services on the property.
The property was in derelict and uninhabitable condition.
The property consisted of two bedrooms and one bedroom contained a double bed and the other bedroom was hoarded with old household contents.
There was only female clothing and female toiletries in the rooms.
There was no male clothing or toiletries in the rooms.
All paperwork and documents located in the room pertained to the deceased and there was no reference to any other person.
All assets in the estate are in the sole name of the deceased only."
Mr Wilson swore an affidavit on 24 July 2014 to which was annexed the photographs that became Ex. 3, as well as a plan of the Paddington property. I have earlier referred to his affidavit, sworn on 27 April 2015, to which was exhibited a number of searches (Ex. 1).
Ms Joan Wakefield lived in the same street in Paddington as the deceased. She has lived there for over 70 years and stated that she believed that the deceased had lived there for about 40 years. She gave evidence that she knew the Plaintiff because "he comes around here quite a lot". She stated that the first time she saw the Plaintiff was when he was delivering fruit and the deceased "would open her door and take a box from him and quickly close the door again".
She stated that "some time in July 2013", the Plaintiff came around and said that he had not seen the deceased and asked her what had happened to her. It was she who told him that the deceased "is dead and buried" (interestingly, a phrase used by Ms Fitzmaurice in a diary note annexed to her affidavit).
Ms Wakefield also stated that, in August 2013, the Plaintiff asked her whether she would be prepared to write something down to say that he had lived with the deceased but that she had refused stating that she "certainly would not because you did not live there with her".
She also stated that, subsequently, she received a letter from Armstrong Legal, a firm of solicitors, which wrote that it was acting on behalf of the Plaintiff. She annexed a copy of the letter to her affidavit. She stated that, subsequently, she provided a statement to Ms Athanasopoulos of that firm. She was told by Ms Athanasopoulos that she "had a number of other statements from your neighbours". (No statements, or affidavits, from any neighbours, were relied upon by the Plaintiff.)
(There is also in evidence a copy of a letter dated 19 December 2013, from Armstrong Legal to Mr Wilson referring to previous correspondence and advising that the firm had ceased to act for the Plaintiff.)
Finally, Ms Wakefield stated that in May, or June, 2014, the Plaintiff contacted her and asked her about the deceased's furniture. She told him to contact the Defendant.
Josiah Sciascia was also a neighbour of the deceased, having lived in the same street in Paddington for almost 10 years. He was aware of the Plaintiff, recognising him as someone who "has come around a bit selling junk". He saw the deceased "on a few occasions get some junk from him" but that "she would only open the door wide enough to get the stuff and then close the door immediately". He never observed the deceased letting the Plaintiff into her house and he never saw any signs that anyone lived with the deceased.
Sid Rauwendaal is a Geriatric Social Worker at St Vincent's Hospital in Sydney. The deceased was admitted to that Hospital in May 2013 having suffered a stroke. He was asked to see her to undertake a psychosocial assessment with a view to arranging discharge accommodation and possible presentation to the Guardianship Tribunal.
As part of his investigations, Mr Rauwendaal had visited the deceased's property at Paddington. He states that at the time of his visit, there was no electric power on and he used a torch to carry out his inspection. He described the interior of the property as being "in a very poor condition". He stated that the downstairs rooms were "cluttered with furniture and other objects, as well as refuse". He described the stairs leading upstairs as "unsafe". During the course of searching for a Will or Power of Attorney, he "opened a drawer and there was a dead cat inside". He stated that he found nothing to suggest that any person other than the deceased was living at the Paddington premises. He found no trace of anyone having attempted to maintain the premises.
Mr Rauwendaal also stated that, at no time, did the deceased inform him, or indicate to him otherwise, that she had any de facto partner, or that she was dependent upon any person, or that any person was dependent upon her.
Annexed to Mr Rauwendaal's affidavit is a report dated 4 June 2013 addressed to the Registrar of the Guardianship Tribunal. Relevantly, it provided:
"…
Mrs Coombes had been living… with a number of cats in her own two storey terraced home in Paddington since the 1975 divorce from her husband. Past reports from the City of Sydney Council and the Aged Care Assessment Team at Waverley indicate the house is derelict, structurally unsound, squalid, malodorous, with a pigeon population, and recent contact with her adjacent neighbours suggest the condition of the premises remains dire. It appears Mrs Coombes was not managing at home and was not coping with the practical side of independent living, relying only on one neighbour for shopping. The history indicates she was resistant to any external domiciliary support service and support. I understand that following neighbourhood complaints, in 2009 the City of Sydney Council Development Control Officer activated a plan to provide assistance with structural repairs and a forensic clean of the home. Subsequently the Catholic Health Care Severe Domestic Squalor Project Team attended and were denied access by Mrs Coombes. She threatened legal action based on harassment. Since that failed intervention, other community service providers have also been unsuccessful in attempts to offer assistance to Mrs Coombes.
Mrs Coombes has a likely diagnosis of a moderate to severe Alzheimer's dementia with frontal features. Whilst failing to cooperate with him, Consultant Psychogeriatrician Dr David Burke attended and reviewed her at home in July 2009 (report attached). Dr Burke reported significant deficits such as disinhibition, paranoia, perseveration, difficulty planning and organising her life and arriving at appropriate solutions to arising life issues. These are possibly symptomatic of her cognitive impairment. There are indications that her functional and cognitive status is progressive and unlikely to improve, as well, her present medical prognosis remains stable but poor.
Mrs Coombes lives in her own home in Paddington and has been house-bound and reliant upon a neighbour for about seven years, refusing even his offer to walk outside. The home has been described as squalid and malodorous and inhabited by numerous cats, possibly rodents and given that it is open to the elements, by pigeons. Mrs Coombes' diet and nutritional needs have often been self-sacrificed for the wellbeing of her cats. She currently receives no domiciliary care support and care workers have made numerous attempts to assist in the past but denied access.
I reviewed Mrs Coombes on 14th May and found her bed bound, aware, fluctuating between responsive and drowsiness and at times able to express verbally to direct questioning with single word responses. Given her resistance to care in the past, she initially appeared unrealistic in her desire to return home. She was cooperative although a poor historian and provided few details about how she might manage at discharge and became reluctant to discuss any proposed discharge options. She admitted to having a brother who was estranged for many years. Mrs Coombes said he lived in Paddington and provided his name and consented to social worker contact with him. Checks revealed Mr John Simpson lived at xxx Hargrave Street Paddington and following contact, he agreed to visit his sister on the ward. He said he was not in a position to accept responsibility for her future care however agreed to the proposed discharge plan being a respite placement subject to the outcome of a Guardianship Tribunal application.
… based on my enquiries there are no relatives or other suitable persons willing to manage Mrs Coombes' finances or make decisions regarding her future welfare on her behalf. In the absence of others, I recommend that the Tribunal consider the Public Guardian be appointed to make lifestyle, health and accommodation decisions and the NSW Trustee to manage the ongoing financial implications."
Ms Carolyn Begg, also a social worker, who had worked for the Aged Care Assessment Team ("ACAT") at Waverley, provided an affidavit read in the proceedings. She had provided a report to the Guardianship Tribunal in respect of the deceased in October 2009. She stated that "[a]t no time during my dealings with [the deceased] did she ever mention that she had a de facto, or any type of partner, and I did not observe anybody living with her at her house at… Paddington. I also did not see or hear any indication that she was financially dependent on any other person or that anyone was dependant (sic) on her."
The report, a copy of which was annexed to her affidavit, identified investigations that referred to the deceased's home at Paddington as "squalid and dilapidated". The report provided some background information that the deceased had provided:
"Ms Coombes is a 76 year old divorced lady who resides alone in her own two storey terrace which adjoins other properties. She says she has lived in the premises since 1975 which was the year of her divorce and the same year she had a mastectomy for breast cancer. She says she has not sought medical attention since and does not take any medication. There is no local doctor and no other medical history was disclosed.
Ms Coombes receives and (sic) Aged Pension. She has no children and reportedly no contact with her brother and sisters. She says that she has two cats living with her. Ms Coombes said that she had been an art teacher for many years and is misunderstood by people because she is an artist, hippy and psychic. She presents as being a loner who leads a reclusive lifestyle with no formal support. She was unable to be specific about having friends. She dresses in several layers of clothes as she feels the cold and looks unkempt. She reports being independent with all aspects of personal care, toileting and is continent.
Ms Coombes denies any problems with mobility, short-term or long-term memory or depression and has no psychiatric history. She feels that any paranoia she expresses is reasonable given her situation with her neighbours. No drug or alcohol issues were detected. There are no reported problems with hearing or speech. Ms Coombes reports having had one fall in the past twelve months caused by not looking where she was walking and sustained and (sic) injury to her knee. This was still bothering her on the day of assessment. She also reported needing a new denture and difficulty with chewing. She also said that she requires new reading glasses and her toe nails need cutting.
Ms Coombes also reports being independent with all activities of daily living and is able to access public transport. She said that she is able to attend to her affairs however confirmed that she has limited savings and financial worries. She said that there have been times when she has needed to ask for a food parcel and that she often goes hungry. She reports weight loss and does not take vitamins or supplements.
At the ACAT Assessment, Ms Coombes declined to complete a Mini Mental State Examination but scored 5/5 correct answers in relation to orientation to year, season, date, month and day of the week. She also declined an attempt at a Geriatric Depression Scale Assessment. She was observed by me as looking pale and had a significant red skin irritation around her eyes. She was polite and happy to talk about herself but lacked insight into the gross state of her environment."
The report goes on:
"…
Ms Coombes' situation is one of severe squalor, the residence is in an uninhabitable state and unsanitary condition. The front door access is obstructed because of the volume of above waste (sic) height clutter from excessive hoarding; Items appear to be no longer in working order, or in reasonable condition to keep. The floor space left is inaccessible and there is no clear passage through. The premise is unbearably malodorous, dark, dirty and dusty covered in cobwebs and cat hair. The upstairs balcony houses several pigeons and is covered in droppings. It is apparent that the premise is infested with flees (sic) from the cats, lice from the pigeons, cockroaches and rats. Protective clothing would be required for anyone entering the premise. This situation presents occupational health and safety issues for workers. Cleaning to return the premise to a habitable standard may not be possible and Ms Coombes does not wish to receive help.
From observation and self-report there is evidence of self-neglect as Ms Coombes has not seen a doctor since 1975, and most likely has untreated medical problems such as her eye irritation. There is also concern that she maybe (sic) nutritionally compromised because she says that she is only able to afford to eat one meal per day as she needs to pay for cat food.
The condition of cats is also of concern as veterinary attention could not be afforded.
Ms Coombes reports that she has no hot water and that her toilet only works 'manually', requiring water to be poured into it.
There is no washing machine or fridge. There is no phone. She reports that she does have electricity, lights and a working stove.
There are several holes in the roof which rain comes through and other structural damage and defects. Ms Coombes states that she has been unable to afford necessary maintenance. She is in need of financial counselling, support and material assistance.
Neighbours have made formal complaints about the smell of sewage possibly from ruptured sewage pipes caused by an overgrown tree which has taken over the entire backyard and extends into the back section of the premise. There are also broken down pipes and problems with storm water drainage.
The premise has no smoke detectors and old electrical wiring… is also a concern. The state of the premise presents a fire hazard and safety risk to Ms Coombes and adjoining neighbours."
I have earlier referred to Dr David Burke, who was the Senior Staff Specialist in Psychogeriatrics at St Vincent's Hospital. He, with Dr Leticia Aydos, had visited the deceased at her home in Paddington in July 2009 and produced a joint report, a copy of which was annexed to his affidavit. Relevantly, the report provides:
"…
She was a pleasant lady who was suspicious of our visit as she knows her neighbors (sic) have complained about the state of her house. She resisted us entering her place, however eventually invited us in motivated by the possibility of having some of the problems fixed.
Her house was in severe squalor. The place was cluttered with furniture and possessions, and there was little space to move around. It was also very unkempt with dirty cutlery and dishes everywhere, spider webs and a thick layer of dust on the floor and over the furniture. She had two cats and there were probably other animals which we did not identify, possibly rats. We did not go upstairs, but we are told there are birds nesting there. We suspect she does not use the (downstairs) toilet during the night and we don't know how she disposes of urine and feces (sic) upstairs. The backyard was completely taken up by a large tree and was dark, dump (sic) and covered in moss."
Dr Burke was of the opinion that the deceased was "extremely resistant to even professional services being provided to her". He did not see any indication, and nor did the deceased "indicate in any way that she had a de facto partner or anyone living with her or that she was dependent on someone else or they were dependent on her".
On the second day of the hearing, counsel for the Defendant sought to file in court, an affidavit of Martina Sommer, a neighbour of the deceased. Ms Sommer was the person (who the Plaintiff accepted, in cross-examination, was "Martina": T59.05-T59.09), to whom he said he had spoken on 14 April 2013, and whom he had requested to call an ambulance. (I shall return to the Plaintiff's evidence about the date of the conversation.)
Because a copy of the affidavit had not been served on the Plaintiff until shortly prior to the application to file the original, and as it was late in the day, I indicated that the Plaintiff should consider the contents of the affidavit overnight, and on the next day inform the court whether he had any objection to it being filed in court and to it being read.
At the commencement of the third day of the hearing, the Plaintiff said that he had no objection to the affidavit of Ms Sommer being filed or read. He stated that he required Ms Sommer to be available for cross-examination. He denied that he would suffer any prejudice. Accordingly, leave was granted to the Defendant to file in court the affidavit of Ms Sommer. I then dealt with the objections made by the Plaintiff to parts of the affidavit.
In her affidavit, Ms Sommer stated that she had lived, with her partner, immediately next door to the deceased for about 9 years. She said that to her observation, the deceased lived alone and always kept very much to herself. She said that she believed the Plaintiff to be a man who she had "seen near my home several times in the year before [the deceased] died". She believed that the last time she had seen him, was about 3 weeks before the deceased had been taken away to hospital in May 2013. Subsequently, when she saw him again, she had told him that if he "hassled" the deceased again, she would call the police.
Ms Sommer stated that on Sunday, 12 May 2013, (which was Mother's Day), she had been concerned about the deceased, not having seen, or heard, from her for three days. She and some other neighbours knocked on her door, but could not attract the deceased's attention. After allowing a period of time, in case the deceased was out, she called the Police who attended with the ambulance. There were problems moving the deceased and they had to lift her over the top floor balcony railing to get her out of the house.
Ms Sommer in her affidavit denied that the Plaintiff had alerted her to call the ambulance. She said she had not seen him at all at any time in the period between 9 May 2013 and 12 May 2013.
[4]
Credibility of the Witnesses
There was no dispute that the onus of satisfying the Court that a domestic partnership, and therefore, that a de facto relationship existed between the Plaintiff and the deceased for at least two years continuously before her death, rested with the Plaintiff.
Credit findings assume a greater significance in cases such as this one. Because of the position of the parties and the witnesses, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), which version is the more likely and plausible. It is also the case that a de facto relationship means a relationship which exists in fact and that is established by determining what the parties to the alleged relationship are doing.
The principal evidence about what the deceased and he were doing came from the Plaintiff himself. On the question whether I accept his evidence, I remember that in Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911, Plowman J, at 916, stated:
"... [N]ot only in this case is the onus of proof on the defendants, but I am enjoined by authority to approach their story with suspicion, having regard to the fact that the other actor in this story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place."
(The Defendants in that case were in the position of the Plaintiff in this case, bearing the onus of proof.)
In Richardson v Armistead [2000] VSC 551, Hansen J, at [36], stated that:
"... [I]n such circumstances the self-interest of a claimant to give evidence favourable to his or her case is obvious... in such a case much caution is exercised before the evidence of the claimant is accepted."
Also, I remember what Bryson AJ said in Zahra v Francica [2009] NSWSC 1206, at [1]:
"In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:
'... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.'"
Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:
"An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
Also see, Ashton v Pratt (No. 2) [2012] NSWSC 3, per Brereton J, at [18].
I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:
"When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342."
The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].
What Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, at [119]-[120] must also be remembered:
"… Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.
Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of not real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law." [Footnotes omitted]
I should also refer to an article by the former the Chief Judge at Common Law, P McClellan entitled "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the "Guidelines Relating to Recovered Memories" (2000) of the Australian Psychological Society:
"Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval."
I have the impression that the deceased was an eccentric, who was regarded as such by members of the community who observed her. I must not forget the overall circumstances and way of living of the parties to the alleged relationship during what is said to be the duration of the relationship. In this regard, I have weighed the Plaintiff's evidence that the deceased, to all intents and purposes, was a recluse, who did not socialise with anyone, including her family, or her neighbours, and that even if she may have talked to some of her neighbours, on occasions, she was not close to any of them and his assertion that her neighbours did not wish to get close to her. The Plaintiff described the deceased and himself as "free spirits" who did not like being told what to do by anyone else. I have attempted to avoid consideration of the evidence based upon stereotypical social assumptions.
Yet, some of the Plaintiff's evidence cannot be explained on the basis of a particular view of the character and personality of each of the Plaintiff and the deceased. I certainly have difficulty in accepting at face value all of his affidavit evidence. It is clear that some of the Plaintiff's evidence was proved to be wrong. In some respects, I did not find the Plaintiff to be a credible witness. Yet, in some areas I do accept his evidence.
The Plaintiff asserted that he lived with the deceased, on a full-time basis, between March 1996 and May 1999. (He says that he moved from Marrickville, into the deceased's home, because he was evicted because he was in arrears of rent.) That the deceased, who is recorded as being reclusive (at least later in her life), would open her door to a virtual stranger within a few months of meeting him, seems somewhat implausible. That she would give him money also shortly after meeting him also seems somewhat unlikely.
I also find it relevant that the Plaintiff only moved out of rented accommodation in Marrickville, because of an eviction - there was no independent decision to move in with the deceased.
Furthermore, his evidence about this period, and in respect of the following period, it is fair to say, lacks detail and colour.
I have earlier referred to the Centrelink document, which was annexed to the Plaintiff's first affidavit which stated that his "Historical Home Address" between 22 January 1996 and 31 May 1999 was noted as "Illawarra Rd, Marrickville".
It is extremely difficult to accept the Plaintiff's assertion when there is simply no other evidence, oral or documentary, to support it; where a document upon which the Plaintiff relies, suggests something that is contrary, and where a neighbour, who was friendly with the deceased, and who had known her for many years, including the period referred to by the Plaintiff, categorically denies the proposition that the Plaintiff ever lived with the deceased. That his evidence lacks detail does not assist.
Accordingly, I cannot be satisfied that the Plaintiff lived with the deceased, in a de facto relationship, in the period between 1996 and 1999. In fact, I cannot be satisfied that he even knew the deceased during this period.
Then, on the Plaintiff's own evidence, between about 1999 and about 2012, he resided, at different places, for different periods of time. He says that, until late in 2012 he lived in different rented accommodation, where he would stay for one or two nights per week, but at other times, he would live with the deceased at the Paddington property. He does not appear to have had any friends, or family, during this, or any other period, with whom he associated.
Again, there is no objective evidence that supports his assertion of living with the deceased during this period. To the contrary, there is some evidence that does not support his version. I refer, in particular, to Ex. 4, which includes a summary of attendances by the Plaintiff, upon a general practitioner, or dentist, during the period between 1 May 2010 and 30 June 2014. The only general practitioners, and others, whose practice the Plaintiff attended, were in the suburbs, other than Paddington (or its immediate environs), at the relevant times. Similarly, the pharmacies at which the Plaintiff attended to have prescriptions filled were in suburbs other than Paddington and its immediate environs. One might have thought that, at least in the 13 year period that the Plaintiff said he was living, for the most part, with the deceased in the Paddington property, there would be some objective evidence from this source of him having attended a doctor, a dentist, or a pharmacy in the local environs.
Then in October 2012, again, he was evicted which event prompted, it would seem, his alleged move to the Paddington property. He states "… I become homeless as, so when they evicted me I went straight away to my apartment place, which is number 45 house" (T75.23-T75.25).
As when the Plaintiff had been evicted from the property in Marrickville in 1996, his alleged move to the Paddington property was not voluntary, nor was it a decision made by both the deceased and the Plaintiff, as a couple, seeking to develop their relationship.
I have earlier referred to the copy letter written in 2014, annexed to the Plaintiff's affidavit, which suggests that he conducted a bank account with the Ashfield branch of the Bank, which he had opened in December 2012. If, as he says, he was living with the deceased at the time he opened the account, one might have expected him to have opened the account at a branch closer to Paddington.
Thus, I cannot be satisfied that the Plaintiff was living with the deceased at the Paddington property, on a part time basis, in this period. This, and my earlier conclusion regarding the alleged relationship, is also supported by the following credit findings.
In the following particular respects, I do not find the Plaintiff's evidence at all convincing and there is other evidence that does not support the conclusion that the Plaintiff and the deceased were in a continuous de facto relationship for two years immediately before her death:
(a) He stated that between 1996 and 2012, he was not in a very sound financial position. He said that he had not worked for many years and that he was struggling financially. He said that it was these matters which had led to the deceased providing him with financial assistance. Even if I accept this evidence as true, it is hard to believe that, throughout the period after 1999, he would rent accommodation, to be used as "a postal address", or to be used "one or two nights per week", with the balance of the time being spent living with the deceased at the Paddington property. He could not satisfactorily explain (see, T119-T120) why he would spend a part of what little money he had available, on accommodation, if the relationship was as he alleged with the deceased and when he was spending so much time with her.
The suggestion that he rented accommodation in order to obtain more by way of pension benefits, if true, does not do him any credit. It involves the deception of Centrelink for many years. He only provided some vague information about how much of the additional pension income he would spend on rent. I do not find his explanation for renting other premises at all persuasive, and, in my view, was inconsistent with the tenor of his case.
(b) The evidence of the Plaintiff is that all of the maintenance that he asserted that he had carried out on the Paddington property occurred in the 1990's, during what he described as "the first two or three years" of the relationship. He does not give any evidence of any steps that he took to try to maintain the Paddington property thereafter. In this regard, I note that he stated that he was unemployed throughout the period that he says he lived there.
(c) The Plaintiff said that the description of the Paddington property as "derelict and squalid", the meaning of which words he said he understood, was inaccurate. He also said that the deceased and he liked the condition of the Paddington property. As he put it, (at T118.39-T118.40): "We leave the dust and spider webs. That's the way we live and we believe that we own the house, not the house owns us". Even with that philosophy, it is hard to imagine two persons, one of whom does not appear to have a relevant medical condition to explain it, living in the manner that the photographs and the other evidence depict.
(d) The description of the Paddington property, given by a number of different witnesses is essentially the same. Despite the denial of the Plaintiff, the photographs, comprising Ex. 3 and Ex. 6, corroborate the description given. It is difficult to accept that the Plaintiff, who does not seem to suffer any cognitive deficiency, could live in such squalor, allow the deceased to live in that way, and not, apparently, take any steps to clean up, or to assist the deceased in trying to clean up, even a part of the Paddington property.
(e) The Plaintiff did not deny the evidence of Mr Rauwendaal that after the deceased's admission to St Vincent's Hospital, when he visited the Paddington property, there was a dead cat found by him in a drawer. The Plaintiff explained that he and the deceased realised an elderly cat was missing and that, perhaps, it was that cat that had been found in the drawer. He said: "Many cats there, anything can happen. There's a lot of cats": T70.04.
There is no evidence of any attempt by the Plaintiff to ameliorate the conditions in which the deceased (and if his evidence were accepted) and he, were living. The suggestion made by the Plaintiff in an affidavit that it was "basic tidy" is inconsistent with what is depicted in the photographs and the evidence of visitors to the Paddington property.
(f) The Plaintiff says that he moved out of the Paddington property on 15 June 2013, following the death of the deceased. He said that he did not have many clothes, or other personal effects, and that his clothes were packed in a "trolley case". He did not pack until 15 June 2013: T42.49-T43.38.
However, it is to be remembered that Mr Rauwendaal had inspected the Paddington property prior to the death of the deceased and had found no evidence of anyone else living there. One might have expected some evidence of the Plaintiff's occupation, if he had lived there as long as he had said.
Mr Sciascia, who went into the Paddington property twice, in 2008 and 2010, never observed any signs of another person living there.
(g) The Plaintiff gave evidence that he did not know the name of any of the deceased's neighbours, aside from a person called "Monica", who he later agreed could have been "Martina". He said that he had not seen the neighbours often and that he did not communicate with any of them. He said that he did not socialise much with them and that he and the deceased were very quiet. He denied having provided the name of any of the neighbours to his then lawyers Armstrong Legal.
(h) Each of the three neighbours, who gave evidence and were cross-examined, was adamant that she, or he, did not ever see the Plaintiff coming from, or going into, the Paddington property, other than on the occasions that he was selling her fruit, or as one described it, "junk". None, for example, had ever seen him taking the garbage bins out, a task that he said he would do, most of the time "every Thursday morning" in 2012 and in 2013, before he moved out of the property: T48.24-T48.50.
Furthermore, none saw him coming, or going, from the Paddington property, at any time in the period that the deceased was in the Hospital, or in the Nursing Home, in May and June 2013, a period when he said he was living in the Paddington property alone. Nor did Ms Sommer say she had heard him in the house during that period, her house being directly adjacent to the deceased's property and sharing the same wall. Had she done so, considering her other evidence, it is likely that she would have confronted him.
His only explanation given during the submissions (T208) was that he was a very quiet person; that he did not mix with others; and that, with the deceased, keeping to themselves, was their way of life.
(i) There is no evidence of the Plaintiff meeting any employees of the Council, or from ACAT, who, he accepted, had attended the Paddington property. He said the deceased told him about their visits. It is to be noted that there were a number of visits over the years by different employees, none of whom the Plaintiff identified as a person who had seen him at the premises. Nor did the deceased mention having a relationship with the Plaintiff to any person.
(j) The Plaintiff said the deceased told him about the application to the Guardianship Tribunal, but told him not to worry as she "will do the job": T77.46-T78.10. Again, there is no suggestion that he involved himself, in any way, in the application, even to assist her in opposing it.
(k) Some of the following evidence belies the Plaintiff's claim of a strong emotional involvement with the deceased:
(i) The Plaintiff gave evidence that on the Sunday that the deceased was admitted to Hospital, he had found her slurring her words and being unable to move the left side of her body. He said that following his request to a neighbour, who was Ms Sommer, he did not stay with the deceased until the ambulance arrived, or even ask Ms Sommer to stay with the deceased, but rather, he made, not one trip, but two trips, to a local chemist to buy "Panadol" for her. (On the first trip, he said he had forgotten his money and had to return to collect it.)
(ii) When I enquired about this, his explanation for not staying with the deceased was (T115.38-T116.26):
"Q. …Whilst you were away no‑one was with the deceased?
A. No‑one was with the deceased, yes that's right.
Q. Well could you explain to me why in circumstances where you were scared and distracted because of the condition of the deceased you left her alone?
A. I tried to do something to help her and that's what I, I run to the neighbour and told her‑‑
Q. I understand that but‑‑
A. ‑‑and after go to the chemist to get something‑‑
Q. After the neighbour told you that she was going to call the police or then an ambulance, you left the deceased alone whilst you went to the chemist?
A. Yes.
Q. Why did you do that?
A. Because I tried to do something to help her. I didn't know what's going wrong with her because she mumbling and she can't talk much.
Q. But when you went to the chemist, did you know that an ambulance had been called?
A. Because I did not ‑ I was expecting to do something before the chemist ‑ sorry, before the ambulance and, sorry about that, and the person who I talk to her is unfriendly.
Q. But she told you she was going to call the ambulance and you found out later that an ambulance had come. Why didn't you wait to see if the ambulance arrived rather than leaving the deceased alone?
A. I was not expecting she going to do that.
Q. You weren't expecting‑‑
A. To do that, to call the ambulance and I just went to do something, some medicine just to do something before, then I go back and see what I can do, I might find someone else to call the ambulance or to call‑‑
Q. But if you thought that the neighbour would not call an ambulance, why didn't you go to a telephone box or the chemist and call an ambulance yourself?
A. Yeah I ‑ I just don't, I got no idea what to do. I was very, very distracted."
He gave evidence that the two trips to, and from, the chemist, had taken him about one hour to complete. The evidence of Ms Sommer, which I accept, was that it had taken about two hours to have the deceased removed from her home and placed in an ambulance.
(iii) By the time the Plaintiff returned from the chemist, he said that the deceased had been taken to Hospital. After being told by the neighbour that the deceased had been taken by ambulance, the Plaintiff did not attend at the Hospital. His explanation for not doing so was as follows (at T116.50-T117.24):
"Q. She told you that an ambulance had come?
A. Yes.
Q. And taken the deceased?
A. Yes.
Q. What did you do after that?
A. I didn't ‑ I stayed home and I didn't‑‑
Q. Why?
A. I don't know what happen and she just, the feeling is something with my feeling, I don't know why, something wrong with me.
Q. But wouldn't it have been a normal reaction to immediately go to the hospital to find out how the person you said was your soul mate was feeling?
A. Yes, that's right, yes. I, I was ‑ in my opinion is, my thinking is in good hands in the hospital.
Q. But didn't you want to find out what had happened to her?
A. Yes I, I, I hear that she has got the stroke.
Q. But didn't you want to find out whether she survived or whether she died or what had happened?
A. Yeah, it is ‑ it is something wrong with my, the way I did ‑ I'm very, very ‑ that's why I, you know, kicking myself what I have done. That's what I did."
In fact, on the Plaintiff's own evidence, he did not go to visit her, at all, for over two weeks following her admission to the Hospital (using the dates that he gave which were clearly wrong). In fact, he never visited her at all whilst she was in the Hospital: T66.32. His only explanation for not doing so, initially, was that he did not like the smell of the Hospital.
Then, in answer to questions from the Bench, he said (at T117.35-T118.19):
"Q. … you did not go to the hospital to find out what had happened to the deceased for at least two weeks?
A. Yes.
Q. Then you found out she was no longer in hospital but she had gone to the nursing home. Is that the position?
A. Yes, that's right.
Q. Then you visited her once at the nursing home?
A. Yes.
Q. And did not go back again for almost two weeks?
A. She told me not, not ‑ look after yourself, not to worry about. I take ‑ I look after myself and you stay at home and I will get better.
Q. But you say that she was your soul mate?
A. Yes.
Q. I am just trying to understand‑‑
A. It is my soul mate.
Q. ‑‑why you didn't go back more than twice?
A. Yeah, I was expecting in very good hands is going to be ‑ I'm confident where she was is ‑ they are in very good care, but I don't know what ‑ I was very, very stressed and when I heard that what happened.
Q. But according to your evidence you were the only person that Ms Coombes had a relationship with?
A. Yes.
Q. Well, did you not think that she might be lonely in the hospital or she might need someone to talk to or hold her hand or anything like that?
A. Yes, I did visit her, yes, I did visit her once but it is ‑ my ‑ what I have done, that's why I'm really, I'm ‑ it is, I make big ‑ that's what I have done. It is not right."
(iv) The Plaintiff did not state in his affidavits, or otherwise, that he had contacted the Hospital, by telephone, at any time during the period she was a patient there to find out about the condition of the deceased. Nor, so it would seem, did he endeavour to ascertain whether he could speak to her by telephone.
(v) The Plaintiff did not attend the deceased's funeral.
(l) The Plaintiff did not give evidence of having a key to the Paddington property. Had he been living there for as long as he asserted, one would have thought that he would give evidence about that fact and, perhaps, even have been able to produce the key.
(m) There are no records produced of the deceased's perception of the relationship in the deceased's own hand. There were no letters, cards or other indicia of affection, let alone a more substantial relationship. (The card allegedly given by the Plaintiff to the deceased was not produced either.) Nor is there any evidence of exchanging even small gifts with each other.
(n) There is no evidence that the deceased mentioned the Plaintiff to any person or that he did so (other than to Ms Fitzmaurice).
(o) Although the Plaintiff asserted that he had a sexual relationship with the deceased, he did not mention in his affidavits that he had observed that she had undergone a mastectomy. (Both Mr Rauwendaal and Ms Begg, in his and her report, noted that the deceased had referred to having undergone a mastectomy for breast cancer. Mr Rauwendaal described it as being a mastectomy of the right breast and Ms Begg stated that it had occurred in about 1975.)
In some respects, the Plaintiff's evidence was plainly wrong. For example, he was adamant that the deceased became unwell and was taken to hospital on 14 April 2013: T56.45-T57.32. He was not prepared to concede that he might be in error about the date of her being taken to the Hospital by ambulance.
The contemporaneous report, a copy of which was annexed to the affidavit of Mr Rauwendaal, stated, clearly, that the deceased was admitted to hospital "on 12th May 2013… following a middle cerebral arterial stroke (MCA) with left hemiparesis". (I also note Ms Sommer's evidence about the date of the events.)
As well, the copy of the contemporaneous report annexed to Mr Rauwendaal's affidavit, stated that the deceased was discharged to the Presbyterian Aged Care Nursing Home on Monday 27 May 2013. Yet, the Plaintiff maintained that he had visited her at the Nursing Home "in early May" 2013 and then, not again until 14 June 2013, on which occasion he was informed that she had died.
Ex. 5, which was a copy of an ACAT report, completed on or about 17 May 2013, revealed that information, which I infer was provided by the deceased, included that she was a widow; that she owned her own residence; that she "lives alone"; that she had "no carers"; that she did not "use the help or supervision of another individual" in any of the identified activities (which included movement activities, health care tasks, domestic assistance, meals, and home maintenance). This is inconsistent with the Plaintiff's version of events and of his relationship with the deceased.
The copy ACAT report also revealed that the deceased had been "brought into Hospital via ambulance, police and fire brigade after having a dense stroke". (This accords with the evidence of Ms Sommer of the events that occurred on 12 May 2013, that the "rescue team", police and ambulance attended the premises.)
There is no reason to disbelieve the information in the contemporaneous documents in preference to the Plaintiff's evidence. His explanation for the contents of the documents, at least as to the date, was that they contained "human error".
Other parts of the reports relied upon by the Defendant are also inconsistent with the Plaintiff's case. Save for the Plaintiff's description of the deceased, as a private person, who did not wish to disclose personal information to others, there is no reason given to reject the contents thereof as untrue.
There is yet another part of the Plaintiff's evidence, which, in my view, satisfies me that I should not accept his evidence about living with the deceased, at least in May 2013. Ms Wakefield's evidence of the conversations that she had with the Plaintiff following the death of the deceased is significant. The Plaintiff denied each conversation saying that "it never happened". In cross-examination, he put to Ms Wakefield that he had never seen her before, and that she was making each conversation up. He had given the same answer at the start of his evidence: T38.39-T39.17.
Having seen and heard Ms Wakefield, generally, I accept her evidence. It would have been a very odd conversation for Ms Wakefield to have invented. I can simply find no motive for her having invented the conversation as she has no pecuniary, or other, interest, in the proceedings. Other than bristling at the suggestion that the Plaintiff had never seen her before, she gave her evidence calmly and politely, and there was no demonstration of malice towards the Plaintiff.
It was even put to her by the Plaintiff that she held animosity towards him and that she had colluded with legal representatives (who were not identified) that would give rise to her desire to harm him financially. Needless to say, Ms Wakefield denied these suggestions, denials that I have no hesitation in accepting.
Furthermore, other evidence of the Plaintiff made it clear that he had met Ms Wakefield before the hearing and that he knew her as a neighbour of the deceased.
It appears that no one, other than Ms Fitzmaurice, who was really only an acquaintance of the deceased and of the Plaintiff, and who only observed them, as it were, from a distance, observed any relationship between the Plaintiff and the deceased. However, even Ms Fitzmaurice could not say that she observed the Plaintiff living with the deceased at the Paddington property. She, herself, had never been inside the Paddington property and had not seen the Plaintiff there. The persons with whom he and the deceased were said to have socialised with were not identified.
Ms Fitzmaurice was also cross-examined. I have little doubt that she was endeavouring to assist the Plaintiff, and whilst I do not think that she was attempting to mislead the court, she accepted that she was coming forward as an advocate for the Plaintiff. She said (at T86.27-T86.50):
"Q. Now, in your affidavit, you described ‑ you describe Ms Coombes and Mr Sadiq as modern day lepers?
A. Yes, I would. Well, it was just her cats, and the cats, and she had a fur coat, and I think she let the cats stay on the coat because the odour was odour de cat urine. So I've often, people would avoid them, and Waleed is not a very out there person, so wasn't that you could say, oh, there is that couple I'll have a conversation about. So yes, which made it very difficult to find people who, you know, could stand up like I can and say, yes, well, I actually did know them and saw them at ‑ yeah. So that is a terrible term, like you said, it's ‑ that is a reference that I did make.
Q. And you said that you feel that you are standing up for them?
A. Well, I do. I was horrified that they had removed Waleed from the house, and he was very distraught when he told me, and I thought that was terrible because my understanding was they were a couple. And I said, how can they do that, and he informed me that they weren't actually ‑ there was nothing formal, and I encouraged him wholeheartedly to ‑ and initially seek out the Redfern Legal Service because they were associated with my work, and to follow through with it. And over the many disputes and disagreements I have had about this representing himself, I am here today because I do believe there has been a bit of an injustice, and Christina would have been horrified.
Q. So do you feel that you are advocating for Mr Sadiq?
A. I feel I am advocating for Christina and for Mr Sadiq…"
In Annexure B to her affidavit, she had stated that she had said to Mr Wilson "I said I knew where they lived in… [Paddington]". In her affidavit, she had stated that she could not say that she had ever observed him at the Paddington property. Her evidence was that she had seen him in the street, in the supermarket, at the Captain Cook Hotel and at various other stores.
In her oral evidence, Ms Fitzmaurice acknowledged that she had never visited the deceased and the Plaintiff at the Paddington property; that she had never even been inside that property; and that she had only seen the inside of the property from the street.
In her affidavit, Ms Fitzmaurice had stated that she had met the Plaintiff following her return from Singapore, at which time he informed her that the deceased had died. In her oral evidence, she said, at T86.06-T86.08:
"I was overseas in September of 2013. When I came back, it was after then that I rang him, and Waleed informed me that Christina had passed on…"
She thought that the conversation had occurred in about November 2013, and "it definitely would have been before the end of the year": T86.21.
How it came to be that she had the Plaintiff's telephone number in late 2013, was not explored in cross-examination or explained by Ms Fitzmaurice.
I should also mention that there is no evidence that the Plaintiff was "removed… from the house" (T86.39). To the contrary, his evidence is that he left the house following being told that the deceased had died because he was "very upset and overwhelming grieving".
I have already referred to the evidence of Ms Wakefield. I found her to be a forthright and honest witness. She said that she had only been inside the Paddington property a few times "but not a lot of times because [the deceased] would not let anybody go in the house. I have been in it a few times, especially in the last 15 years since I retired from work" (T127.41-T127.43). She said that she would talk to the deceased every day; that she would read the deceased's mail for her; and that she would do other things for her such as explaining what had to be done and telephone if the deceased needed to ring someone. She said she would give the deceased food. She regarded the deceased as a close friend, noting that the deceased was the only neighbour who acknowledged her birthday with a present. She said that she was the only neighbour who had attended the deceased's funeral.
The Plaintiff put to her that all of her "evidence is nonsense, invented nonsense, had no sense, had no basis" (T130.31), an allegation that she denied. He even described a part of her evidence as "another twisted idea" (T133.14). As stated earlier, he even went as far to assert that he had never met her previously, an assertion that she also denied, saying that he had sold her fruit.
I have no hesitation in accepting Ms Wakefield's evidence about her relationship with the deceased and what she said about her conversations with the Plaintiff after the death of the deceased. I reject the Plaintiff's suggestion that her evidence was nonsense, that it was invented and that it was "another twisted idea".
Mr Sciascia was also cross-examined. I am satisfied that he gave his evidence honestly and I accept that evidence. He said, in cross-examination that he had lived in the same street as the deceased since about 2006. He had been inside the Paddington property on two occasions, in 2008 and 2010, at the request of the deceased, who was having trouble with her television reception. He said that he would see the deceased, on average, about five times a week, would order her food on occasions from a local take away restaurant, would sometimes buy her food, and would also read her mail to her. She would knock on his door often just to have a chat. Sometimes, he would see her three or four times a day, sometimes only twice a week.
Mr Sciascia, in answer to a question from the Plaintiff (which it was necessary for the court to rephrase), gave this evidence (T139.38-T139.44):
"Mr Sadiq I think is enquiring of you how you know he didn't live there?
A. Look, you know, in all truth perhaps he did live there. But I didn't see any evidence of it. And of course I only entered the house three or four times, so unless you were… there and never left the house or entered the house, I mean, there is a chance you could have lived there. But I can only state what I saw and what I think is the truth. Does that answer the question."
I should mention that the Plaintiff put to Mr Sciascia, that his evidence, too, was nonsense, that it was invented and that there was an ulterior motive in giving the evidence "to remove my property from me" (T138.15). The witness, naturally, and in my view, correctly, rejected each of these assertions.
Ms Sommer was also cross-examined following the Plaintiff being given an opportunity to read her affidavit overnight. She said that she had been the deceased's neighbour for about 9 years. She said that whilst she had never entered the Paddington property, she would see the deceased on a regular basis, "[d]uring summer I saw her daily, during the winter every second day the latest" (T158.16-T158.17). She would order pizza for the deceased, give her tins of food and her partner would give her coffee.
When asked whether she had spoken to the "people" at the Paddington property, she repeatedly denied that there was anybody, other than the deceased, living there, and stated that "[t]here are no 'people', there is just [the deceased]… the only person who lived in this property" (T158.20-T158.31). She said she saw the Plaintiff "every once in a while coming around, standing at [the deceased's] door, talking to her, trying to sell her things, in my eyes, junk" (T163.35-T163.36).
Ms Sommer was also cross-examined on the events that took place on the day the deceased was taken to hospital. She maintained that the date was 12 May 2013. She denied that the Plaintiff knocked on her door and asked her to call an ambulance. When asked by the court how she remembered so clearly the events that occurred that day, she replied (T174.24-T174.30):
"Because it was mother's day and not having a mother living in this country and my partner also not, we were one of the few people being at home. And then later on when everything happened and the rescue team came, the police, the ambulance, it was that time of day when everyone else would come home from their mother's day gigs. But we were the only ones close enough to check on Crystal again, finding out again she is not visible, not hearable; there must be something wrong."
The Plaintiff put to Ms Sommer that she had been causing problems for the deceased by complaining to the local Council about the condition of the Paddington property, (a matter which the Plaintiff had previously raised in regards to the deceased's neighbours about which Ms Begg said she had been told by the deceased). Ms Sommer provided the following explanation (T159.40-T159.42):
"I know that my landlord, the owner of the property was trying for some time to get to increase the quality of his property, meaning he had to get the council out for certain actions."
The Plaintiff also put to Ms Sommer that she was an unfriendly neighbour; that that she had attacked the deceased and the Plaintiff; that she had ulterior motives; that she was trying to remove the deceased and the Plaintiff from their home; that her evidence was "nonsense"; and that she was either mistaken in her evidence or that she was a liar. All of these assertions were rejected by the witness.
I also found Ms Sommer to be a credible witness. She gave her evidence openly and without any suggestion of exaggeration. She was clearly correct about the date on which, and the circumstances in which, the deceased was taken to Hospital and she would have had no reason to lie about how that event had come about. Her evidence is also, broadly speaking, consistent with the evidence of the other neighbours.
There were three aspects of the evidence given by the witnesses for the Defendant, that the deceased did not have any relationship whatsoever with him, that do not sit comfortably with the evidence given by the Plaintiff. (Since it is not enough to simply establish a relationship, the Plaintiff, to succeed on his principal case, having to establish that he and the deceased had a "relationship as a couple living together", I must deal with this evidence.)
It is clear that part of the Defendant's case was based upon the evidence of the neighbours of the deceased that she, and he, had never seen the deceased permitting the Plaintiff entry to the Paddington property and that each had never seen him exiting. Even if one thought it was improbable that not one of the neighbours ever saw the Plaintiff entering, or exiting, the Paddington property over all the years he alleged he had done so, that the Plaintiff had, in fact, been inside the Paddington property became less improbable after he was cross-examined.
Although the Plaintiff incorrectly described one room and the bedhead on one of the beds that he said he had slept in with the deceased, as being timber, when the photograph depicts it as being a metal bedhead, when a number of photographs (Ex. 3) were shown to the Plaintiff and he was asked to identify the rooms depicted, he was able to do so.
The Defendant's witness, Ms Bullen, did not suggest, except in respect of one of the 17 photographs, that the Plaintiff's evidence was incorrect, or that the rooms he identified, were not as he stated each to be. The Plaintiff's uncontroverted evidence about the rooms identified in the photographs suggests that he had some familiarity with the inside of the Paddington property. This leads to the conclusion that the deceased permitted him entry to the Paddington property on occasions.
The second matter related to the Plaintiff's evidence regarding the deceased's condition on the day she was taken to the Hospital. He described the deceased as being "unable to move her body on the left side". The medical evidence refers to the deceased being diagnosed with a "left-sided hemiparesis".
This may lead to the conclusion that he might have been present, at some time, after the deceased suffered the stroke. It does not lead, however, to the conclusion that I should accept the whole of his evidence of what occurred on Sunday, 12 May 2013.
Additionally, and perhaps more importantly, the part of the Defendant's case, that the Plaintiff was a complete stranger to the deceased, and a person who only had minimal contact with her, essentially at her front door, also cannot be accepted.
There were parts of the Plaintiff's evidence that demonstrate that there must have been some relationship between the Plaintiff and the deceased. In this regard, I note the Plaintiff's evidence, in his affidavits, going to the background of the deceased which broadly accords with the result of the investigations made by the Defendant. In particular, in his affidavit sworn 7 August 2014, the Plaintiff wrote that the deceased told him:
(a) Her mother's name was Olga and that her father was 6 or 7 years older than her mother. (That her mother's name was Olga is undoubtedly correct. Her father was 6 years older than her mother.)
(b) She had come from London to Australia at the age of 9 years. (The relevant documents reveal that she left London at the age of 8 years and was almost 9 years old when she arrived.)
(c) She had come with her parent, her sister and her brother and that she was older than each of her siblings. (The relevant documents confirm each of these assertions.)
(d) The deceased had been married to Kenneth at the age of 21. (The Marriage Certificate reveals that she was aged 22 years.)
(e) She had married at about the same age as her mother had been married.
(f) That she had lived in Moore Park Road, Paddington. (The Marriage Certificate reveals that Kenneth's address, at the date of their marriage, was Moore Park Road, Paddington.)
(g) She had been a teacher for sculpture and painting. (She was described by the NSW T & G in its "New Estate Report" as a "retired art teacher".)
Counsel for the Defendant was not able to explain how the Plaintiff would have known about these matters, at the time he swore his affidavit if he had not been told of them by the deceased and if the relationship of the Plaintiff and the deceased was as asserted by each of the neighbours. Perhaps, it can be explained by the fact that a person may simply present to the outside world in a particular way.
In accepting the Plaintiff's evidence on these topics, I do not conclude that any of the neighbour's evidence was false. I remember that each gave evidence in terms of personal observations.
I next turn to the Plaintiff's evidence in his affidavit about a number of matters identified in s 21C(3) of the Interpretation Act. He asserted:
(a) The duration of the relationship was from 1996 until 2013, approximately 17 years.
(b) The nature and extent of the Plaintiff's and the deceased's common residence was on a permanent basis from 1996 until 1999, and then from 1999 until 2012, for 5 or 6 days per week. He again resided with the deceased, on a permanent basis, from October 2012 until she was taken to the hospital in April 2013. He continued to live in the Paddington property until shortly after the deceased's death.
(c) There was a sexual relationship for the entire duration of the relationship.
(d) There was financial dependence by the Plaintiff on the deceased. The deceased had provided several lump sums to the Plaintiff:
(i) $400 for rent, before the commencement of the relationship,
(ii) $6,000 when the Plaintiff moved in with the deceased in 1996,
(iii) $5,000 in 1997, and
(iv) $5,000 sometime between 1998 and 1999.
(He did not produce any evidence to corroborate any of these assertions about finances.)
The deceased also gave the Plaintiff a fortnightly allowance of $200 from 1998 onwards. This money was used, in addition to his Centrelink allowance, to buy items for the household such as "food, clothes and furniture and other items" (T213.8).
(e) There was also financial interdependence in that they pooled their money to live.
(f) In relation to the ownership, use and acquisition of property, the Plaintiff stated that the deceased owned the house and, from 1996, the Plaintiff "did the shopping for [the deceased]… the majority of the house contents" (T213.21-T213.22).
(g) The degree of mutual commitment to a shared life between the Plaintiff and the deceased was demonstrated through their "commitment, not to worry about what other people think, we do it our own way and as long as we live in the ‑ and that's our commitment. And we believe in the spirit ‑ free spirit and both of us ‑ we don't like to be someone to interfere in our lives, especially in our home. We lived in peace and tranquillity" (T314.32-T314.36).
(h) The consideration of the care and support of children was not relevant.
(i) The Plaintiff performed household duties, including cooking, washing and cleaning. (Although, he could not provide an explanation as to the cluttered and dirty nature of the Paddington property.)
(j) In relation to the reputation and public aspects of the relationship, he agreed that no one would have known about their relationship, but asserted that this was because they were private, quiet, people who did not tell anyone about their relationship.
[5]
Entitlement on Intestacy
Section 111 of the Act provides that if an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate. As stated earlier, "spouse" is relevantly defined in s 104(b) of the Act as "a person… who was a party to a domestic partnership with the intestate immediately before the intestate's death". Accordingly, to succeed in establishing that he was her spouse, the Plaintiff needs to establish that he was "a party to a domestic partnership" as defined in s 105(a) of the Act, which relevantly includes "a de facto relationship that… has been in existence for a continuous period of 2 years".
(I have considered whether in stating the onus of proof, there was any unfairness to the Plaintiff when, had the Defendant sought a grant of administration in solemn form, it would have had the onus of proving that the deceased was not in a de facto relationship at the date of death. I do not think that there is any unfairness as it was the Plaintiff, only, who asserted such a relationship existed at the date of death and it is he who seeks a declaration in respect thereof.)
Section 105 does not expressly state whether the continuous period of 2 years must occur immediately before the deceased's death. In this regard, it is interesting to note the alternative in the s 104, namely being "a party to a domestic partnership with the intestate immediately before the intestate's death." [Emphasis added]
It seems to me that the existence of the de facto relationship for a continuous period of 2 years must occur immediately before the date of the intestate's death because only then would one be able to establish that the applicant was a party to a domestic partnership with the intestate "immediately before the intestate's death". It is that period which is the minimum duration requirement.
There is no definition of "de facto relationship" in the Act. Nor is there a precise test identified in the Act for determining whether such a relationship exists.
However, the term is defined in s 21C(2) of the Interpretation Act, which provides:
"(2) Meaning of 'de facto relationship'
For the purposes of any Act or instrument, a person is in a 'de facto relationship' with another person if:
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family."
Importantly, the definition does not require an exclusive relationship and it can be established even where one is, or both, of the parties are legally married to someone else or in a registered relationship or interstate registered relationship with someone else.
Also, the legislation has been recast, so that it no longer uses any reference to "husband and wife", which terminology could lead to an inappropriate search for analogies to the legal relationship of marriage.
Section 21C(3) of the Interpretation Act, provides:
"(3) Determination of 'relationship as a couple'
In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple."
It can be seen that the nine criteria referred to may be grouped into "private" ((c), (d), (e) and (f)) and "public" ((a), (b), (g), (h) and (i)) headings. None of the matters listed is of decisive significance. The criteria are inclusive but not exhaustive. They all, however, suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other's emotional lives, a conclusion that people are a couple living together involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50, per Bryson AJ at [14].
These criteria are no more than reminders, or indicators, of matters that possibly might be relevant in deciding the question whether the parties lived in a de facto relationship: Piras v Egan [2008] NSWCA 59, per Campbell JA, at [146]. The last paragraph of the section makes clear that they are not to be weighed against each other and given individual weightings of importance. Ultimately, the criteria should be used to assist in determining whether the parties were in "a relationship as a couple". They should not overshadow that central concept.
One might argue that the inclusion of the term "living together" would require physical cohabitation for at least two years. The sub-section makes it clear that a common residence is not the only element of the relationship that the Court must consider, and is not necessarily an essential element to prove. To recognise that acknowledges that, sometimes, couples choose to conduct a shared life without living together.
There is nothing in s 21C of the Interpretation Act that requires a couple who are living together to share the same household full time, or to live in one house. The concept of "living together" does not import any concept of proportion of time. Section 21C(3)(c) assumes a common residence, but invites an examination of its nature and duration. Furthermore, because one, or both, members of the couple may also be legally married, or in another de facto relationship at the same time as they are in the subject relationship, it is feasible that the subject relationship might involve the parties living together for only part of the relationship: Moby v Schulter [2010] FamCA 748, per Mushin J, at [140]-[141]. What is important is the nature of the union (as a couple) rather than how it manifests itself in quantities of joint time.
As was pointed out in Re Estate of Sigg (dec'd) [2009] VSC 47, at [7]:
"In the case of Dow v Hoskins, Cummins J said 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. In that case his Honour took the view that he should approach the matter in that broader context. 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." [Footnotes omitted]
The circumstances listed in s 21C(3) of the Interpretation Act do not state what has been described as the "essence" of a de facto relationship, which is to be found in the phrase "as a couple". Thus, once the physical, or factual, aspects, of the relationship have been examined, whether a mental ingredient also existed should be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future. Ultimately, the court must consider the "nature of their union, whether there was a merger of two individual lives into life as a couple". The search is for such a relationship, as it existed at the date of death, and which had manifested such characteristics for at least two years prior thereto. If two people do not "live together as a couple" they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various matters listed.
As Barrett J wrote in Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8, at [11], when considering the phrase living "as a couple":
"The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living 'together as a couple'."
In s 21C(3)(a) of the Interpretation Act, "the relationship" referred to cannot mean "the de facto relationship". As has been written by Campbell J (as his Honour then was) in Sullman v Sullman [2002] NSWSC 169, at [194], although he was speaking of s 4(2)(a) of the Property (Relationships) Act 1984 (NSW):
"… The structure of section 4(2) is that one is required to take into account such of the matters listed in paragraphs (a) to (i) inclusive as might be relevant in the particular case, for the purpose of determining whether a de facto relationship exists. If 'the duration of the relationship' is a factor to be taken into account in determining whether a de facto relationship exists, that means one must be able to tell what is 'the duration of the relationship' before one has decided whether or not there is a de facto relationship. Thus 'the relationship' in section 4(2)(a) must have a different meaning to 'the de facto relationship'. It seems to me that it involves a looser notion, under which the Court should take into account the duration of what is asserted to be the relationship, though also taking into account how the other factors listed in paragraphs (b) to (i) of section 4(2) might have changed during the course of that asserted duration of relationship."
Common sense also dictates that a relationship may change, or develop, over time. Thus, its legal character at one point may not represent its character at another. (The Plaintiff took a global approach to what he said was his relationship with the deceased and he did not appear to recognise any difference between the beginning, and at the end, of what he described as a 16 year de facto relationship.)
Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.
The significance of qualifications of these kinds appears from passages in the leading judgment of Basten JA in Robson v Quijarro [2009] NSWCA 365, at [14]-[16], and from passages which his Honour cited from Bar-Mordecai v Hillston, at [120]-[124].
Thus, the determination of the existence of a de facto relationship is essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration.
Accordingly, the court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076, at [64]. Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact.
In Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted, with approval, the following passage from the judgment of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128, at 131:
"Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test."
Although those cases were decided many years ago (as evidenced by the reference to "the opposite sex" in the passage quoted), the general principle stated applies equally now as it did then.
Other cases make it clear that the term "de facto relationship" constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677, at 685; Light v Anderson [1992] NSWCA 136, at 4; Bar-Mordecai v Hillston [2004] NSWCA 65, at [86], [125]; Hayes v Marquis [2008] NSWCA 10, at [73]-[74].
In reaching the conclusion about the existence of the relationship, the court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping. Thus, although said in another context, I agree with Bender FM in Dakin v Sansbury [2010] FMCAfam 628, at [13], that:
"... [T]he nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be."
The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243, at paragraphs [64]-[65] of the judgment:
"A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: 'A man and woman united by love or marriage; a wedded or engaged pair.'
In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships."
It can be seen from the above, that the concept of a de facto relationship is complex and diverse. Such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another's house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship.
[6]
Claim for Family Provision Order
In the alternative, the Plaintiff makes a claim for a family provision order under Chapter 3 of the Act. The key provision is s 59. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.
Relevantly, in this case, the Plaintiff relies upon the several categories of eligibility referred to in s 57(1)(e) and s 57(1)(f) of the Act. (I have earlier referred to s 57(1)(b) which identifies as an eligible person, a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death. I have earlier referred to the relevant principles that apply to establish the existence of the de facto relationship, noting that in this sub-section, the existence of that relationship does not require proof of duration of any particular length. This is not to say that in determining the question of provision, the nature and duration of the relationship will be irrelevant.)
[7]
Partly Dependent and Member of the Household
In the alternative, the Plaintiff relies upon s 57(1)(e) of the Act, namely that he is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.
It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member".
The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.
In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, wrote (in the context of a claim under section 15B of the Civil Liability Act 2002 (NSW)), at [45]:
"In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:
'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'
In Skinner v Frappell [2008] NSWCA 296, it was said by Young CJ in Eq at [85], (with whom Campbell JA agreed) sitting in the Court of Appeal:
"The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough."
In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it was said:
"The word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that '"Dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop (dec'd) or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."
In Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep), in a passage not set out in the report at 29 NSWLR 687, the Court of Appeal (Handley, Sheller and Cripps JJA) said:
"There has been a tendency in some cases to equate 'dependent' with 'financially dependent'. In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 Hope JA, with whom the other members of the Court agreed, pointed out that while one of the commonest forms of dependence may be a financial one 'in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things' the word, as used in the statute, is not limited to financial dependence."
In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "[c]ommon sense requires that certain trivial activities should be disregarded".
A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13].
The question of dependency, whether whole or partial, is one of fact.
It is necessary, next, to consider the meaning of the words "member of a household". Some discussion is to be found in Benney v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep) in which it was said:
"A good list of the Canadian and United States authorities is contained in the decision of Muir v Royal Insurance Co (1981) 125 DLR (3d) 172 [which refers to] Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577. That was a decision of the Full Court of the Supreme Court of Canada… Rand J said at p 579, 'The "household", in the broad sense of a family, is a collective group living in a home, acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity or other bond, between whom there is an intimacy and by whom there is felt a concern with and an interest in the life of all that gives it a unity. It may, for example, include such persons as domestic servants, and distant relatives permanently residing within it. To some degree they are all admitted and submit to the collective body, its unity and its conditions, particularly that of the general discipline of the family head. They do not share fully in the more restricted family intimacy or interest or concern, but they participate to a substantial degree in the general life of the household and form part of it.'"
In Cormick v Salmon [1984] HCA 79; (1984) 156 CLR 170, at 178, Gibbs CJ referred to the term "household" as appeared in s 5(1)(f) of the Family Law Act 1975 (Cth) and said of that term that it was "a wide word which would include any relative, friend or servant, ordinarily living in the house."
Another authority to which reference should be made is Kingsland v McIndoe [1989] VR 273, in which Gobbo J gave a useful discussion of the authorities dealing with the meaning of "member of the household".
He said, in summary, that the concept of membership of a household, connotes a degree of continuity and permanency of mutual living arrangements. It also connotes a form of special familial relationship. It does not require the parties to live together as a couple.
Needham J in Moloney v Goodwin (Supreme Court (NSW), Needham J, 1 August 1989, unrep), was of the view that before one could have a household, one had to have a quasi-family unit.
In Munro v Lake (Supreme Court (NSW), McLelland J, 8 February 1991, unrep), the Court considered whether a stepdaughter who had regularly visited the deceased's home and stayed from Friday to Sunday night with her mother, the deceased's wife, was a member of the deceased's household, and ultimately concluded that apparent regularity of weekend visits would not be sufficient to make a person a member of a household.
In Wagstaff v Wagstaff (Supreme Court (NSW), 6 November 1991, unrep), a decision which Windeyer J gave when a Master, his Honour concluded that the ordinary meaning of being a member of a household requires the member to live in that household. He said that a child living at home with the family is a member of both the family and the household, but upon moving out to live elsewhere, remains a member of the family, but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient.
In Markulin v Drew (Supreme Court (NSW), Young J, 12 August 1993, unrep), his Honour concluded that:
"… [W]hat is to be learnt from the cases, particularly the Court of Appeal decisions in Benney v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provisions (sic) Act provided that there is in fact a household and that the Plaintiff has some intimate connection with the householder or another member of the household even though the Plaintiff does not fall into the category of a quasi-wife or quasi-child... However, it all becomes a question of fact in each case."
In Porthouse v Bridge [2007] NSWSC 686, Bryson AJA commented in regard to what constitutes being a member of the household. He wrote at [20]-[21]:
"Before Mr Porthouse came to Wollongong in 1968 he had spent school holidays, two weeks in August and about six weeks at Christmas, in each of five years staying with his mother and stepfather in the house. The school holiday periods, notwithstanding that some were as long as six weeks, were visits and he did not become a member of the household during those periods. They come under consideration on the question whether Mr Porthouse was at any particular time partly dependent on Mr Scott. The fact that he had so often and for such extended periods visited the household on holidays assists the conclusion that when his schooldays ended and he came from Tasmania to live at the house with no definite plans to leave he was soon assimilated into the household. From his return from Tasmania after 1971 he was even more clearly entrenched in the household; his father had died and he had nowhere else to go. His association with the household was much stronger than the regular visits and weekend stays referred to in Munro v Lake (McLelland J 8 February 1991), and in my opinion there was the degree of continuity and permanency of mutual living arrangements which the concept of membership of a household connotes. It is probable that the sum of the periods of time he spent there is the equivalent of two years or more.
I find that Mr Porthouse was a member of the household at 19 Rawlinson Avenue of which Mr Scott was the head for significant periods. Membership of the household is testified eloquently by his being received back there, time and time again, during his turbulent years when he moved out on several occasions and lived in flats, encountered vicissitudes, and returned to the house where his mother and stepfather lived. It is said to be a test of where one's home is that the people there must let you in when you go back. The facts that Mr Porthouse made several attempts to establish himself in living independently before he finally left forever, and that he was received back after each attempt, testify to his having been, and when received back still being a member of the household."
The Act does not require that the Plaintiff, in order to qualify as "a member of the household" must be living with the deceased at the date of death. Nor does it specify any minimum period to satisfy such qualification. All that is required is that such person be "at any particular time" a member of the household.
[8]
Living in a close personal relationship
The final basis of eligibility relied upon is that the Plaintiff is a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death: s 57(1)(f) of the Act.
"Close personal relationship" is defined in s 3(3) of the Act to mean "a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care". Therefore, the definition calls for two different links, the first being that the adult persons are "living together" and the second being that "one or each of whom provides the other with domestic support and personal care".
Importantly, also, the close personal relationship must exist "at the time of the deceased person's death" for the applicant to be an eligible person: s 57 (1)(f).
Section 3(4) of the Act provides that for the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care (a) for fee and reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
An "adult person" is a person of, or above, the age of 18 years: s 3(1) of the Property (Relationships) Act. Persons are related by family if, for example, they have a parent in common: s 5A of the Property (Relationships) Act.
The second link is cumulative. The expressions are not defined. However, the adult persons must be living together at the same time as one, or each, provides to, and/or receives, domestic support and personal care from, the other. Neither one nor the other, provided alone, suffices. Both domestic support and personal care must be provided.
The word "domestic" carries connotations of matters relating to a household. The Macquarie Dictionary definition includes "of or relating to the home, the household, or household affairs". The Oxford English Dictionary adds "household, home, family".
Some of the primary meanings of "personal" include of, or pertaining to, concerning or affecting the individual person or self; one's own; of or pertaining to one's person or body or figure; bodily. In broad terms it requires one person caring, in a personal way, for the needs of another, such as assistance with mobility, personal hygiene, physical comfort and emotional support: Hayes v Marquis, at [168]. However, the notion of "personal care" should not be confined to matters relating to physicality: Hayes v Marquis, at [87].
The Second Reading Speech of the Property (Relationships) Legislation Amendment Bill (Legislative Assembly, (Hansard) 26 May 1999, p 534-535) contemplated that personal care services may encompass ensuring the physical and emotional comfort of one or both parties for the other.
In Sharpless v McKibbin [2007] NSWSC 1498, Brereton J stated at [71]:
"The inclusion within the Act of 'close personal relationships' has the effect of extending the scope of the Act beyond marriage-like relationships. It does not follow that the approach applicable to a marriage-like relationship should also be applied in the context of a 'close personal relationship' not amounting to a de facto relationship. 'Close personal relationships' within the definition cover a wide range of relationships, and typically do not involve 'a practical union of lives and property'. In the case of a close personal relationship from which features of a marriage, such as union of lives and property, are absent, the rationale for the approach authorised by Mallet is much weakened, if not entirely removed."
In Hayes v Marquis, McColl JA noted:
"75 Counsel did not identify any authorities in which detailed consideration had been given to the interpretation of a 'close personal relationship' in s 5(1)(b). The immediate requirements of the relationship are that it is between two adults, whether or not they are related by family, who are 'living together' and one or other of whom provides the other with 'domestic support and personal care'. It cannot be a de facto relationship, or a marriage (s 5(1)(b)), nor one in which the domestic support and personal care is provided in the circumstances set out in s 5(2). Thus the concept of 'living together' will always be something different from living together as a couple, one of the critical requirements for a de facto relationship.
76 The context in which s 5(1)(b) appears is also significant. A 'close personal relationship' is one of two domestic relationships (the other being a de facto relationship) whose existence may be established to attract jurisdiction under the Act. The word 'domestic' carries connotations of matters relating to a household. The definition contemplates, in my view, that the facts permit of the conclusion that the two adults are living as a household.
77 Finally, some guidance as to the purpose of s 5(1)(b) can be gleaned from the Second Reading Speech in which the Minister made it clear the amendments to the Act were to cover persons living in intimate relationships not hitherto covered.
78 Central to the primary judge's characterisation of the pre-1999 relationship was the proposition that the concept of 'living together' in s 5(1)(b) did not require the parties to live together fulltime. In my view his Honour was correct in approaching the case on that basis. The definition of 'close personal relationship' does not require the two adults to live together fulltime. The language of s 5(1)(b) does not require such co-habitation. Further a s 5 'close personal relationship' may be contrasted with a s 4 de facto relationship. A de facto relationship is one which might ordinarily be expected to emphasise common residence. However, while the definition of a de facto relationship requires a relationship between two adult persons who live together as a couple, s 4(2) makes it plain that sharing a 'common residence' full-time is not essential to a conclusion that a de facto relationship exists: see also PY v CY [2005] QCA 247 (at [7]) per De Jersey CJ. Rather the significance of a common residence, in determining whether a de facto relationship exists, turns on its nature and extent.
79 Similarly, in my view, the question whether a couple are 'living together' for the purposes of s 5(1)(b) will turn on an evaluation of the nature and extent to which they share a household. Having regard to the fact, however, that they do not have to live together as a couple to satisfy s 5(1)(b), it might be thought the requirement of a common residence might be somewhat more attenuated than in s 4.
80 Further, the concept of 'living together' is only one of the three indicia of the relationship in s 5(1)(b). The decision as to whether the statutory definition is satisfied will, like the decision about whether a de facto relationship exists, ultimately be a value judgment which has regard to the three indicia to determine whether there is a relationship which fulfils the definition as a whole.
81 Young J (as his Honour then was) so held in Weston v Public Trustee (1986) 4 NSWLR 407, a case which concerned the phrase 'living ... as his wife…on a bona fide domestic basis' in s 6 of the Family Provision Act 1982. The applicant had been in a relationship with the deceased for thirty years during which time he had stayed at her flat in Homebush several days every week but had kept a separate residence in Bondi. They had holidayed together, shared a car for which the applicant paid and garaged, but whose operating expenses were paid for by the deceased. She had done almost all his laundry.
82 Young J held (at 408 - 409), by analogy with cases which turned on whether people had lived separately and apart for the purposes of grounds for divorce under the former divorce legislation, that the court 'was not looking to see whether the parties were physically cohabitating but whether there was a relationship between them which was one which showed that the marriage relationship was still alive'. The court was concerned to see whether the two parties had a bond akin to marriage. His Honour concluded that the word 'living' in s 6 had the same connotation. Accordingly, it was not fatal to the applicant's case that she and the deceased had not physically lived in the same place seven days a week, fifty-two weeks a year.
…
85 While Ms Bridger conceded the respondent provided domestic support, she challenged the proposition that the evidence disclosed that either the appellant or the respondent provided the other with 'personal care' within the meaning of s 5(1)(b). She drew attention to Dridi v Fillmore [2001] NSWSC 319 (at [105] - [106]) where Master Macready said that personal care connoted care taken with respect to such matters as pertained to, concerned or affected the individual person or self or pertained to one's person, body or figure. She did not explain why the sort of care the respondent provided did not fall within that description.
86 Master Macready commented (at [108]) that he would not have thought that matters such as 'emotional support' would 'by themselves' fall within the expression 'domestic support and personal care'. Clearly each case will turn on its own facts. The Second Reading Speech contemplated that personal care services may encompass ensuring the physical and emotional support of one or both parties for the other.
87 For my part I have difficulty with an argument that parties accepted to be in a loving sexual relationship, as the primary judge found here, are not providing each other with personal care. And there may be cases where emotional support of itself will suffice. Society recognises the importance emotional support can play in an individual's well being. Psyche is just as much a personal attribute requiring sustenance as one's physical self. The notion of 'personal care' should not be confined to matters relating to physicality."
Einstein J disagreed with the view of McColl JA, commenting, at [167]-[168]:
"An important pointer in the legislation is seen in the further requirements that one or each of the adult persons is to provide the other with domestic support and personal care. These requirements clearly support the above construction of the term 'living together'. The key to the correct construction inheres in the notion of two adults living together at the same time as one or each of whom provides and/or receives domestic support and personal care to the other. Whilst it must be acknowledged that there will always be borderline situations requiring close attention to be given to the material circumstances, the expression requiring the provision of 'domestic support' would not seem to occasion any particular questions of ambiguity.
The other expression requiring the provision of 'personal care' may well result in differences of opinion. The expression is not defined. The ordinary meaning to be attributed to this expression is simply the commonsense experience of one person caring in a personal way for the needs of another. In Dridi v Fillmore, Master [now Associate Justice] Macready expressed the view with which I agree, that the expression 'personal care' seemed to be directed at matters such as assistance with mobility, personal hygiene, physical comfort and emotional support. Nor would I regard this list as necessarily exhaustive. It is unnecessary to presently determine whether in the absence of the giving of assistance of the type outlined above, the giving of emotional support would qualify on its own as 'personal care', although this may well be the case."
Beazley JA, at [1], said that she "substantially agreed with the reasons of McColl JA".
[9]
Factors Warranting the Making of the Application
In the case of an applicant who falls within s 57(1)(b), (e) or (f) of the Act, the court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).
Factors warranting the making of the application were described by McLelland J (as his Honour then was) in Re Fulop Deceased (1987) 8 NSWLR 679, at 681 as being:
"… [F]actors which when added to facts which render the applicant an 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased."
In Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA, at 252, after setting out and approving the statement, added:
"To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."
These principles have been applied, at first instance, for many years. However, in Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal, in which Fitzgerald AJA delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.
In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge, at [9]:
"In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ('there are factors') is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."
More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1), at [8]:
"As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to 'proceed with the determination of the application'. In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are 'regarded as natural objects of testamentary recognition', whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."
More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, wrote, at [62]-[64]:
"It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.
However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.
On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."
It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA and Young JA as correct and propose, in the circumstances, to follow their decisions.
In Porthouse v Bridge, Bryson AJ commented, at [7] and [9]:
"This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind.
…
The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."
[10]
Family Provision Order
Then, if eligibility and, if necessary, factors warranting the making of the application are found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, the matters referred to in s 60(2) of the Act at both stages. Of course, in this case, there is no Will of the deceased, so the question is determined by operation of the intestacy rules.
The Court's power to make a family provision order under the Act extends to cases in which letters of administration are granted over the estate of a person dying intestate: s 55(1)(b) of the Act. In those circumstances, the power to make orders will have effect "as if the provision was made... in a will of the deceased person, if the deceased person died intestate": s 72(1)(b) of the Act.
Other than by reference to the provision made by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the operation of the intestacy rules, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
It is this mandatory legislative imperative that drives the ultimate result and, it is only if the court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).
In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed:
"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].
Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:
"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.
An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145-146, wrote:
"The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said:
"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J wrote, at 505:
"Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, at 541, discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms:
"If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of the financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that … [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need."
In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114], noted:
"In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is [a] phrase of wide import (McCosker v McCosker (1957) 97 CLR 566 at 575). The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575:
"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant ... 'Advancement' is a word of wide import."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5, at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77], which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:
"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478:
"The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:
"It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J wrote, at 502:
"… [T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at [114], Callinan and Heydon JJ said:
"… [T]he use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here … The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at 12:
"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied…"
In Palagiano v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.
His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [123]:
"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210."
Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014] NSWCA 45, at [39].
Whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
In Collins v McGain [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, said:
"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
...
47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA said, in respect of the first stage of the process:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10 - 11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803, per Ormiston J at 816 [38], 820 [47]."
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:
"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523, David J, at [41], added:
"'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree. Consideration of "needs" must be in the context of the statutory formulation.
In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that the Plaintiff is an eligible person, and that adequate provision for his proper maintenance, education or advancement in life has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. (Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Gardiner v Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117]-[120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656. I also refer to what Bergin CJ in Eq has written in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].) I shall not repeat what I have said, which is not affected by the recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619, Verzar v Verzar [2014], or Salmon v Osmond [2015] NSWCA 42.
(In Poletti v Jones [2015] NSWCA 107, Basten JA, at [19], stated that what had been stated by him in Andrew v Andrew "was not to say that there might not be circumstances in which such an approach was the preferable way to proceed. My only point was that the legislation no longer dictated such an approach in circumstances where a rigid demarcation of issues along those lines would be artificial, a point made by Callinan and Heydon JJ in Vigolo v Bostin… a case under different legislation".)
Ultimately, as Allsop P said in Andrew v Andrew, at [6], it "may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made) and, if so, whether it should (whether to make an order and, if so, the terms of that order). Accordingly, even if there remains some uncertainty as to whether the Act requires a two-stage approach, "it is settled that the determination under the legislation on either approach, involves an evaluative judgment": Salmon v Osmond, per Beazley P (with whom McColl and Gleeson JJA agreed), at [54].
Section 60 of the Act, at least in part, is new. It provides:
"(1) The court may have regard to the matters set out in subsection
(2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [121] and [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
White J wrote in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters" that the court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life.
In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote:
"(10) Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case.
(11) Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order 'as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'".
Beazley P, in Phillips v James, at [51], described s 60(2) as involving:
"[A] statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focused direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order."
In Chapple v Wilcox [2014] NSWCA 392, Basten JA, at [7], wrote:
"Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify:
(a) the person or persons for whom provision is to be made, and
(b) the amount and nature of the provision, and
(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and
(d) any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.
[11]
Other Applicable Legal Principles - Substantive Application
Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]:
"Fairness and equality are not touchstones for relief under the Succession Act."
The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.
In this case, the pre-ordained scheme for distribution of the deceased's estate is not according to the wishes of the deceased as expressed in a Will, but according to the regime established by statute. It was said in the NSW Law Reform Commission's, Uniform Succession Laws: Intestacy (April 2007), at 1.23:
"The rules of distribution on intestacy are, at the most general level, the community's view of what should be done with the estate of a person who has died intestate. The parliaments of the various Australian jurisdictions, as representatives of their communities, have established and amended the rules from time to time. One of the purposes of this Report is to determine the extent to which any proposed scheme of distribution meets the collective requirements of the Australian community." [Footnotes omitted]
In Re Estate of Bridges (1975) 12 SASR 1, Bray CJ noted:
"In the case of an intestacy, as much as in the case of a will, it seems to me that Parliament has indicated its intention that the scheme of things set up by a testator in his will, or by the law of the State in the event of intestacy, shall be interfered with so far as is necessary to make adequate provision for the proper maintenance, education and advancement of the claimants specified in the Act, but no further. It is true that when the persons entitled on intestacy are the surviving spouse and legitimate children of the deceased as opposed to collateral relations the speculation that the deceased may have intended to die intestate may have more cogency, but nevertheless I repeat that I think the correct approach is as I have said. I think that Parliament no more intended to grant an unlimited liberty to recast dispositions resulting from the law of intestacy on moral grounds than it did to give a similar liberty to recast dispositions made by will."
In Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191, at [38], Kenneth Martin J, after referring to the passage in Re Estate of Bridges, noted:
"So, in going about the task of resolving this Inheritance Act application... I must respect the effect of the intestacy laws of the day in terms of the result they would deliver..."
I respectfully agree with what Bergin CJ in Eq wrote (omitting transcript references), in In the Estate of the late Anthony Marras, at [116]-[117] and [124]-[125]:
"It was submitted that s 113 of the Act is just one of the mechanisms that the legislature has used to protect the interests of a surviving spouse… It was submitted that it was also notable that the formula in s 106 in respect of the statutory legacy provides an adjustment based on the Consumer Price Index (CPI) and also makes interest payable after one year at a rate which is 2% higher than the last relevant cash rate published by the Reserve Bank of Australia. It was submitted that the previous applicable provisions in the Probate and Administration Act 1898 contained similar protections for the surviving spouse.
At the outset of his final submissions Mr Mantziaris contended that the statutory regime on intestacy provides a very definite intention to preserve the real value of what he referred to as the 'minimum irreducible portion of the estate for the surviving spouse'. It was submitted that if the Court is to make orders for provision under s 59 of the Act for any of the applicants then it should not do so by interfering with that so called 'irreducible minimum'. Mr Mantziaris submitted that the intention of s 113 of the Act is that the statutory legacy (the irreducible minimum) is protected from the Court's interference, where the value of the estate exceeds the statutory legacy. However in submissions in reply Mr Mantziaris clarified his position. He said that he did not suggest there was an 'absolute prohibition on going into the statutory legacy'.
…
I am of the view that Mr Mantziaris' submissions in this regard should be rejected. The intestacy provisions of the Act may be viewed as though the deceased had made a will whereby he directed that his estate should be distributed as on intestacy. The fact that such distribution is statutory does not assume any particular importance: Re Russell [1970] QRWN 55 at 56. Just as there is no basis for cocooning any aspect of a testator's proposed distribution of the estate under a will as an irreducible minimum, if the Court reaches the view that it is necessary to interfere with the distribution to ensure adequate provision is made, there is no basis for cocooning any particular part of the distribution under the statutory provisions on intestacy.
I am not satisfied that a reasonable reading of the Act leads to the conclusion that a Court may not interfere with the statutory legacy of a surviving spouse, if in all the circumstances the provision under the rules of intestacy in respect of the children of the deceased is inadequate. The Court is able to interfere with the statutory regime, including the statutory legacy, in so far as it is 'necessary to make adequate provision' to any applicant under s 59 of the Act: In the Estate of Bridges (deceased) at 5-6. Whether such interference is justified will depend upon the circumstances of the particular case."
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair.
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As Allsop P said in Andrew v Andrew, at [16]:
"If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."
Barrett JA, at [95], wrote:
"Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that 'community expectations' play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA):
So long as he complies with community expectations and what is sometimes called 'moral duty', the deceased is able to leave his property as he wishes."
In Chapple v Wilcox, Basten JA, at [12], and by Barrett JA, at [63]-[64], emphasised the central role played by "community standards" or "community expectations" in any decision whether to take the significant step of overriding the expressed wishes of the deceased.
How the community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]:
"As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."
Thus, "there are difficulties for the Courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479, at [44]. As was said by White J in Slack v Rogan; Palffy v Rogan, at [125]:
"I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least insofar as it goes beyond allowing provision to be made in favour of spouses and minors or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew, the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able-bodied son, or that a widow's claim is paramount, have been rejected. To say that the court itself is the spokesman for the fair and reasonable man or woman in the community is to acknowledge that in truth there is no ascertainable external community standard to guide the decision."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word "proper" requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]).
The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164.
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].
[12]
Qualifications on General Principles
In relation to the claim for a family provision order, as I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.
As the Full Court of the Family Court wrote in Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-550, after referring to both the first instance and appellate decisions, at [94]-[95]:
"Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
It is also to be remembered… that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially."
It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts.
As Lindsay J said in Verzar v Verzar [2012], at [131]:
"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
[13]
Submissions
It is fair to say that the court was not well assisted by the submissions of either party. That is, perhaps, more understandable so far as the Plaintiff is concerned, as he is a litigant in person. It is far from understandable in relation to the Defendant, whose counsel maintained dogmatically, and without an apparent appreciation, or, so it seemed, apparent consideration, of all of the evidence. The task of the court has not been made any easier by this approach.
When asked what provision should be made to the Plaintiff out of the deceased's estate, in the event that he was not found to be the de facto of the deceased and relied on his family provision claim, the Plaintiff said, at T221.12-T221.14:
"… I am homeless. I had no possession. I have no place to live. I would ‑ since she become sick until now I'm grieving. I had no place ‑ I would like to go back to my property, my house."
In answer to questions from the Bench concerning the witnesses called for the Defendant, the Plaintiff submitted that they should not be believed. He submitted that Ms Sommer was not telling the truth because "she considers us unclean" (T209.25-T209.42) and because she did not like him: T201.02-T201.05.
In relation to Ms Wakefield, he simply said that she had "colluded" with the other witnesses and that she did not like him either: T210.13-T210.26. He said that she was not a good friend to the deceased.
He also said that if he returned to the Paddington property, the neighbours were all "scared that I'm going to be same like my partner": T210.34-T210.36. He maintained throughout his submissions, that the other witnesses did not like him and that this was a reason for giving false evidence.
The Defendant, in his written submissions, denied that the Plaintiff was entitled to the relief he claimed, or any relief at all. It was submitted that he could not succeed in his intestacy claim as he was not in a de facto relationship with the deceased immediately before her death, or that such a relationship had been in existence for a continuous period between 13 June 2011 and 13 June 2013. Nor could the Plaintiff succeed in his family provision claim as he was not an eligible person under s 57(1)(b), s 57(1)(e), or s 57(1)(f) of the Act.
However, the Defendant submitted that if the court did find that the Plaintiff was an eligible person, then the Defendant conceded that the Plaintiff had established "factors warranting" under s 59(1)(b) of the Act. If this were to occur, the Defendant submitted that provision of $15,000 would be adequate and proper taking into account the following circumstances:
(a) There was at best only a brief period when the Plaintiff used the Paddington property as his home address and for his mail for Centrelink.
(b) The deceased had no responsibility or obligations to the Plaintiff, although she might have given him a few hundred dollars over the years to "help him out" but more likely the sums were for fruit and vegetables and "junk" that he was selling.
(c) The estate is small, as the Paddington property would be sold for land value only taking into account its derelict nature, and given the liabilities and charges to come out of the sale.
(d) A lump sum of $15,000 would be a sizable sum for his maintenance and advancement, and it is not clear how provision for future education arises.
(e) The Plaintiff does not appear to be cohabiting with any other person, and no one else appears to be liable to support him.
(f) There is no medical evidence that the Plaintiff suffers from any physical, mental or intellectual disability.
(g) The Plaintiff made no contribution, financial or otherwise to the acquisition, conservation and improvement of the estate of the deceased, or to her welfare.
(h) If the deceased assisted the Plaintiff in any way during her lifetime, such provision should be taken into account in reducing any provision that the Court is now minded to consider making.
(i) There was no testamentary document made by the deceased during her lifetime suggesting an intention to provide for the Plaintiff upon her death.
(j) Any maintenance that may have occurred (if a finding of eligibility is made) was minimal.
During oral submissions, counsel for the Defendant was asked specifically to explain how it could be submitted that the Plaintiff had never been allowed access to the Paddington property in light of the Plaintiff's evidence correctly identifying different rooms in the property from photographs. He responded that the Plaintiff had been unable to identify the one "critical" (No 6) photograph. He submitted that this photograph was a room downstairs when the Plaintiff had described it as an upstairs bedroom.
Counsel could not explain how the Plaintiff was able to differentiate, in the photographs, between the bedroom facing the backyard and the bedroom facing the street. He simply submitted "Because he's seen the photographs and so forth" (T224.01) and later "He might have been in there once… I don't know" (T225.47) and that "the photos he got right were easily identifiable as one being a kitchen and the other being a room upstairs with a bed in it with a balcony" (T226.21- T226.23).
The Defendant instead relied upon the evidence of Ms Wakefield and Ms Sciascia, having "never seen [the Plaintiff]", and the Plaintiff's incorrect description of the bedhead, after having deposed to a long, ongoing sexual relationship with the deceased and residing at the Paddington property, at least 5 or 6 days per week, since 1996.
Counsel also submitted that the objective documents in evidence should be favoured over the Plaintiff's evidence. In this regard, the Centrelink document provided, at best, that the Plaintiff was living at the Paddington property from 1 October 2012 until 20 January 2013, and thereafter, the Centrelink records show that the Plaintiff had no fixed address in the suburbs of Sydney, Burwood and Redfern up until 17 December 2013.
In relation to the Plaintiff's witness, Ms Fitzmaurice, the Defendant submitted that her evidence needed to be weighed against the evidence put forward by the Defendant's witnesses, and the fact that she recognised that she was an advocate for the deceased and the Plaintiff.
It was also submitted that one of the fundamental factors was the absence of a mutual commitment to a shared life demonstrated by the failure of the deceased to identify the Plaintiff, or a relationship with the Plaintiff, to Ms Begg or Mr Rauwendaal, especially after having spoken of her brother and sister.
Regarding the performance of household duties, the Defendant submitted that "the pictures speak for themselves" (T233.15); the property was squalid, unhygienic and unfit, as observed by Ms Begg and Mr Rauwendaal.
In relation to the Plaintiff's evidence that he had visited the deceased after she had been transferred from the Hospital to the Nursing Home in Brown Street Paddington, counsel said: "All I am saying is that he could have gleaned the information from somewhere else". He made a similar submission in relation to the Plaintiff's evidence about the deceased being unable to move her left side. That had not been put to the Plaintiff in cross-examination.
In relation to the information that the Plaintiff had provided in his affidavit about the background of the deceased, counsel submitted (at T234.27-T234.31): "All I am required to show or rebut is that there was a de facto relationship at the time of death or immediately at the time of death or in the 2 years continuous in the period of time. I don't have to go and describe the relationship as some other thing that satisfies how Mr Sadiq may or may not have known."
[14]
Determination
In many cases, it is relatively easy to conclude that a couple is in a de facto relationship because the facts make it obvious that there has been the requisite merging of lives, such as where they are living in the same accommodation, sharing sexual conduct, and where they proclaim that they are a de facto couple. Often, the parties, themselves, at the hearing, do not dispute the existence of such a relationship.
In other cases, such as this one, it is more difficult to determine whether the relationship should be classified as a de facto relationship if the persons alleged to be in such a relationship, live in an unconventional manner, or when the relationship finds expression in a different type of domestic arrangement. The cases reveal the plethora of the different types of relationships and the different levels of domestic and emotional arrangements between adults.
It is even more difficult for the court to determine the nature of the relationship, where one of the parties to the alleged relationship is dead, and much depends upon acceptance of the uncorroborated evidence of the other. However, even in what might be regarded as a non-traditional relationship, the court is required to evaluate the evidence to determine whether the legal threshold is met and that is determined by considering the facts in the light of the Act. In this regard, a common sense objective judgment should be applied evaluating all of the circumstances.
The Plaintiff's cross-examination of the other witnesses, and the submission that each had given false evidence, should not be accepted. In relation to Mr Rauwendaal and Ms Begg, each of whom was a professional and whose evidence was the subject of a contemporary record, there is not a skerrick of evidence to support the Plaintiff's view of him and her. Whilst in relation to the neighbours, there were some signs of resentment towards the Plaintiff, that resentment went more to the fact that the Plaintiff was making a claim against the deceased's estate, rather than any ill-will towards him personally.
Having considered all of the evidence as well as the submissions, I am unable to conclude that the Plaintiff and the deceased lived in a de facto relationship at any time. I am also unable to conclude that the Plaintiff lived with the deceased in either of the earlier periods that he asserted. I have identified the evidence that leads me to conclude that he did not do so.
Even if I were to accept the contents of the Centrelink document as proving the truth of the assertion that he was residing in the Paddington property in the period between October 2012 and January 2013, the period specified is not "a continuous period of two years prior to the death of the deceased". Nor is January 2013, the date of death of the deceased. (There is simply nothing in the evidence, other than the Plaintiff's assertions, to suggest that he lived with the deceased prior to that time, and from 2009 and because of the evidence I do not find that he was living with the deceased in May 2013).
Also, as stated earlier, even if the deceased provided to the Plaintiff, on one or more occasions, financial or other assistance such as accommodation to alleviate hardship, that does not mean that they were in a de facto relationship.
In any event, the court must weigh the information in the Centrelink document, which could only have been provided to Centrelink by the Plaintiff, with what was noted in contemporaneous medical records, relating to the deceased in 2009 and in 2013, which statements, in my view, are likely to have been provided to the author of each by the deceased.
That the Plaintiff does not appear to have disclosed any de facto relationship with the deceased to Centrelink at any time is also relevant, and, perhaps, indicative of his knowledge that any relationship was not de facto in nature. He would have had many opportunities to disclose the information.
Furthermore, the information about the criteria relied upon by the Plaintiff are dependent almost entirely upon my acceptance of the Plaintiff's evidence. I am unable to accept his evidence in its entirety. The events of May 2013, including the failure by the Plaintiff to see the deceased whilst she was in hospital, and even later, on only one occasion, casts grave doubt, in my mind, on the closeness of the relationship and the suggestion that there was an intertwining, or merging, or union, of their lives.
Ms Wakefield's evidence of events post-death involving the Plaintiff, which I also accept, does not assist the Plaintiff in this regard. In any event, I found the evidence of the neighbours far more persuasive, particularly as to the assistance that each provided to the deceased.
Of course, I have reminded myself of Ms Fitzmaurice's evidence. In my view, her evidence, overall, must be considered in the context of her being a stranger to each of the Plaintiff and the deceased. She saw them only occasionally, in passing, and relatively infrequently. At face value, her evidence simply leads to a conclusion that she observed the Plaintiff on some social outings with the deceased, and, on some other occasions, elsewhere. Her evidence also suggests that there was some demonstration of physical contact between the Plaintiff and the deceased. It might even show that the Plaintiff demonstrated some concern for the deceased, and that he tried to assist her on, occasions, in purchasing food for her cats. Overall, it does not elevate the relationship into a de facto relationship.
Nor does Ms Fitzmaurice's evidence go far enough in corroborating the assertion of the Plaintiff that there existed a de facto relationship. But for her evidence, the relationship between the Plaintiff and the deceased was clandestine, and according to the Plaintiff, suggests that they spent very much time together, as distinct from time spent socialising as a couple. Certainly, none of the deceased's neighbours saw any sign of the Plaintiff in the deceased's life. According to each of them, the deceased lived by herself. It appears to be the case that it was only to Ms Fitzmaurice that the deceased and the Plaintiff presented themselves as a couple.
The evidence from Ms Fitzmaurice must be balanced by reference to the other evidence in the case. Although I am satisfied that the Plaintiff had some form of relationship with the deceased, I do not accept that they were in a de facto relationship at any time. It seems to me that any relationship was utilitarian and pragmatic.
Whilst there can be no doubt that the Plaintiff and the deceased were not married to one another, or related by family, I find that the Plaintiff was not living with the deceased for the requisite period, and, in any event, that they did not "live together as a couple".
It follows that the Plaintiff is not the "spouse" of the deceased at the date of his death, with the result that his claim to the whole of the estate on intestacy must fail. It follows, also, that he has no "interest" in the estate to enable him to obtain an order for the revocation of the grant of Letters of Administration made to the Defendant.
For the same reasons, I am unable to conclude that the Plaintiff falls within the category of eligibility relied upon in s 57(1)(b) of the Act, namely that he is a person with whom the deceased person was living in a de facto relationship at the time of the deceased's death.
Because of the conclusion that he was not living with the deceased, he is not a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death. Whilst he may have visited the Paddington property, and, perhaps, even stayed there overnight, on occasions, that is insufficient to establish he was ever living there. I am not persuaded by the Centrelink document and the Plaintiff's evidence that he was a member of her household during the period between October 2012 and January 2013.
In any event, the Plaintiff's assertions that he looked after, and cared for, the deceased are somewhat inconsistent with the other evidence in the case. In this regard, I prefer the evidence of each of the neighbours regarding the assistance that she and he, respectively, provided to the deceased. As submitted, in other respects, the photographs, and the evidence about the presentation of the deceased speak for themselves.
Nor can I find that the Plaintiff was a member of the household of which the deceased was a member. I shall not refer to the evidence that it inconsistent with the assertion made by the Plaintiff relevant to this period. However, as stated previously, as a member of the household, for the period alleged (even if it were October 2012 until the middle of January 2013), one might have expected him to give evidence of having a key to the Paddington property.
The only evidence that the Plaintiff was wholly or partly dependent upon the deceased again is his own. None of the banking records of the deceased were produced to suggest regular withdrawals, and the Plaintiff, himself, does not produce any records that, otherwise, demonstrate the regular receipt of funds.
Turning then to factors warranting the making of the Plaintiff's application, had I found that the Plaintiff was an eligible person within s 57(1)(e) or s 57(1)(f) of the Act, I would have had to consider this in light of the Defendant's concession. However, since I am not so satisfied, it is not necessary for me to do so. (I should say, however, that despite the concession made, I might have had some difficulty reaching the same view. That the deceased did not inform any person of the alleged relationship with the Plaintiff does not suggest to me that he had the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.)
It follows, because of my conclusions, that the Plaintiff's claims must be dismissed with costs. It also follows that the injunction granted by Robb J should now be dissolved.
The court makes the following orders:
(i) The Plaintiff's Statement of Claim is dismissed.
(ii) The Plaintiff is to pay the Defendant's costs of the proceedings.
(iii) The interlocutory injunction granted by Robb J on 24 July 2014 restraining the Defendant from selling the Paddington property is hereby dissolved.
(iv) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.
[15]
Amendments
10 June 2015 - "a eligible person" amended to "an eligible person" in Paragraph 341
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 June 2015
v Sansbury [2010] FMCAfam 628
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Dion v Rieser [2010] NSWSC 50
Diver v Neal [2009] NSWCA 54
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Gardiner v Gardiner [2014] NSWSC 435
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hayes v Marquis [2008] NSWCA 10
Hyland v Burbidge [2000] NSWSC 12
In re Allardice; Allardice v Allardice (1910) 29 NZLR 959
In the Estate of the late Anthony Marras [2014] NSWSC 915
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep)
Kay v Archbold [2008] NSWSC 254
Kingsland v McIndoe [1989] VR 273
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191
Light v Anderson (1992) DFC 95-120
Lynam v Director General of Social Security (1983) 52 ALR 128
MacPherson v R [1981] HCA 46; (1981) 147 CLR 512
Markulin v Drew (Supreme Court (NSW), Young J, 12 August 1993, unrep)
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McKenzie v Baddeley [1991] NSWCA 197
Moby v Schulter [2010] FamCA 748
Moloney v Goodwin (Supreme Court (NSW), Needham J, 1 August 1989, unrep)
Munro v Lake (Supreme Court (NSW), McLelland J, 8 February 1991, unrep)
Palagiano v Mankarios [2011] NSWSC 61
Penfold v Perpetual Trustee [2002] NSWSC 648
Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8
Petrohilos v Hunter (1991) 25 NSWLR 343
Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619
Piras v Egan [2008] NSWCA 59
Pogorelic v Banovich [2007] WASC 45
Poletti v Jones [2015] NSWCA 107
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Re Dennis (Deceased) [1981] 2 All ER 140
Re Estate of Bridges (1975) 12 SASR 1
Re Estate of Sigg (dec'd) [2009] VSC 47
Re Fulop Deceased (1987) 8 NSWLR 679
Richardson v Armistead [2000] VSC 551
Robson v Quijarro [2009] NSWCA 365
Romascu v Manolache (No 2) [2012] NSWSC 87
Salmon v Osmond [2015] NSWCA 42
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Scragg v Scott [2006] NZFLR 1076
Sharpless v McKibbin [2007] NSWSC 1498
Shi v ABI-K Pty Ltd [2014] NSWCA 293
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-550
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Skinner v Frappell [2008] NSWCA 296
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Sullman v Sullman [2002] NSWSC 169
Sung v Malaxos [2015] NSWSC 186
Szypica v O'Beirne [2013] NSWSC 297
Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100
Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wagstaff v Wagstaff (Supreme Court (NSW), 6 November 1991, unrep)
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Webb v Ryan [2012] VSC 377
West v Mann [2013] NSWSC 1852
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Williams v Aucutt [2000] 2 NZLR 479
Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep)
Ye v Fung [2006] NSWSC 243
Zahra v Francica [2009] NSWSC 1206Click here to enter text.
Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
The Macquarie Dictionary
Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History
The Second Reading Speech of the Property (Relationships) Legislation Amendment Bill (Legislative Assembly, (Hansard) 26 May 1999)
Hon Justice Peter McClellan "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655
The Oxford English Dictionary Click here to enter text.
Category: Principal judgment
Parties: Waleed Sadiq (Plaintiff)
NSW Trustee & Guardian (Defendant)
Representation: Counsel:
Mr D Stewart (Defendant)
The matter has been in the Family Provision List since July 2014. On the first return date of the Summons, the Plaintiff appeared in person. He confirmed that he was not legally trained. The court urged him to obtain legal assistance.
Following the first return date, Mr S G Wilson, a legal officer employed by the Defendant who had the day to day conduct of the proceedings, wrote to the Plaintiff informing him of a number of matters, including that the Defendant "will be challenging your eligibility to bring a claim and it will be alleged that your claim, contained in your affidavit on 1 July 2014, that you lived with the deceased for 16 years, or that you lived with her at all, will be challenged and placed in issue in the Court proceedings".
Subsequently, on a number of occasions when the matter was listed for directions, the Plaintiff appeared in person, and on other occasions, he appeared with the pro bono assistance of Mr J Brown of counsel. On each occasion that the Plaintiff appeared in person, unrepresented, the court reminded him that he was likely to be disadvantaged because he did not have sufficient legal knowledge, the skills, or the objectivity, to conduct this quite complex litigation and urged him to continue with the pro bono assistance. On occasions, he seemed to accept this admonition and then relied upon Mr Brown who appeared, on subsequent occasions, on his behalf. (In this regard, I infer that, during the course of the proceedings, the Plaintiff had available a legal representative who would have provided advice regarding the contents of his affidavits and otherwise in relation to the preparation of the case for hearing.)
Regrettably, shortly prior to the hearing, the Plaintiff informed Mr Brown that he was no longer instructed. Mr Brown informed the court, and the Defendant, that his instructions had been withdrawn in an email dated 15 April 2015, sent to my Associate.
At the commencement of the hearing, I observed that Mr Brown was in court but not sitting at the Bar table. When I asked him, in the presence of the Plaintiff, if he was prepared to continue to assist the Plaintiff, Mr Brown again offered to do so, on a pro bono basis. After consideration, the Plaintiff refused the assistance.
In view of the fundamental right of a litigant to appear in person, enshrined in Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") rule 7.1(1), the court accepted that the Plaintiff wished to continue the proceedings representing himself.
I am grateful for the assistance provided by counsel during his involvement in the case and by his offer, at the hearing, again, to assist the Plaintiff on a pro bono basis. In this case, he (and the court) has given the Plaintiff every opportunity to take advantage of counsel's legal expertise and experience. One can only speculate on the reasons why the Plaintiff chose, at different times, to reject the opportunity given to him to obtain that assistance. In the circumstances, he must bear the responsibility for, and accept the consequences of, any mistakes and errors, that were made during the course of the proceedings.
Following the exchange with the Plaintiff, Mr Brown and the Bench, the court confirmed its duty to ensure that the trial is fair and determined in accordance with the law. Of course, this duty applies whether he has been unable to obtain legal representation, or if the Plaintiff appears self-represented by his, or her, own choosing or where the party is represented: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, 546-547. It does not mean, however, that to dismiss one's lawyers, or to retain none, should be an advantageous procedural step.
The Plaintiff was also told that if he appeared unrepresented, the court's duty was not to advise him of how to conduct his case; nor to advise him of how his rights should be exercised; nor to become his advocate or stand in the shoes of his previous counsel. Nor would the court unduly interfere with the conduct of the trial on his behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to him as a self-represented litigant: Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, per Bell J, at 130; Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), per Samuels JA; Cicek v Estate of late Solomon [2014] NSWCA 278, per Ward JA, at [126]-[130]. The duty to ensure a fair trial applied to both parties.
The Plaintiff was also informed that the court would not permit him to give evidence from the bar table without oath or affirmation. (In this regard, the continued reference to the deceased by the Plaintiff as "my partner" and the other declarations made, from the bar Table, about his feelings for her, have been ignored. It is clear that he was passionate about his position.)
The limited guidance to which I have referred, then went to explaining to the Plaintiff how the case would proceed, commencing with the reading of the affidavits onto the court record; informing him of his right to object to any part of the affidavit evidence relied upon by the Defendant that he might regard as inadmissible; an explanation of the order of calling witnesses; informing him of his need to enter the witness box to be cross-examined (as he had been asked to attend for cross-examination); to have his only witness, whose affidavit he proposed to read, be available for cross-examination; his right to cross-examine the deponent of any affidavit read by the Defendant; and providing an explanation of the consequences of not cross-examining a witness. The guidance would not extend to advising him of how his rights should be exercised.
The court also provided him with an explanation of the role and purpose of cross-examination, and the necessity for him to put to each witness any aspects of his, or her, evidence that he proposed to contradict or claim was false, so that he, or she, would have an opportunity to provide an explanation. (Clearly, he took account of what had been said to him but, unsurprisingly, he struggled with what was required for an effective cross-examination.)
Finally, the Plaintiff was shown the Outline of Submissions that had been received from him and from counsel for the Defendant and he confirmed that he had a copy of each. A copy of the relevant sections of the Act and the Interpretation Act 1987 (NSW), upon which he would need to address the court, was provided to him later in the proceedings. He was told that there was a difference between evidence and submissions and that what he said during submissions would not be regarded as evidence.
As has been noted, "the right of a party to be given an opportunity to be heard… includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker. Whether such opportunities have been made available is a different question from whether they have been availed of. A party who has a reasonable opportunity to present his or her case and fails to make the most of it cannot later be heard to complain that there has been procedural unfairness": Shi v ABI-K Pty Ltd [2014] NSWCA 293, at [50].
I have no doubt that the Plaintiff is an intelligent man. He seemed to have no difficulty understanding what was said to him. I also thought that his understanding of the English language, although not his ability to write it, was far better than originally thought. I found that he displayed an insight into the case that he was required to present and, because of prior legal assistance, or not, he was able to marshal arguments in support of his case.
In addition, throughout the proceedings, he was polite, calm, and he acted with appropriate respect to the court, counsel for the Defendant and the Defendant's witnesses. His presentation of the case in court, except for one matter relating to questions put to one witness, has not contributed to the assessment of his credit on the facts.
Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the duty to ensure a fair trial to both parties, given to the Plaintiff who is clearly without any legal knowledge and whose first language is not English. Overall, I am satisfied that the Plaintiff understood the nature of the proceedings and that he conducted them as well as he could. It was clear that he had prepared for the hearing upon the basis that he would represent himself. He appeared to have no difficulty responding to questions, or to answering matters raised by the court. In my view, he conducted the hearing adequately.
I should also note that Mr D Stewart of counsel, who appeared for the Defendant, did not take pedantic objections to the Plaintiff's affidavit evidence and, even though he was reminded that he could object to matters raised by the court, by way of explanation to the Plaintiff, or otherwise, he did not do so. Furthermore, during his cross-examination, he questioned the Plaintiff in a polite and calm manner and he allowed the Plaintiff every reasonable opportunity to answer the questions put to him.
Unfortunately for the Plaintiff, the evidence, overall, did not assist him in establishing that he was the spouse of the deceased at the date of her death or an eligible person within the meaning of the Act. It might be said that much of the evidence given by the Plaintiff was not corroborated and ultimately, he was unable to convince the court, on the balance of probabilities, of the case that he mounted.