Schneider v Kemeny; Kemeny v Schneider

Schneider v Kemeny; Kemeny v Schneider - [2021] NSWSC 524 - NSWSC 2020 case summary — Zoe

[4]

Judgment

HER HONOUR: This is a claim for family provision by a second husband. The deceased, Katherine (Kathy) Kemeny, died on 18 February 2019, aged 63, after a ten-year battle with melanoma. The plaintiff, Michael Schneider, is 66 years old. Although recently retired, the plaintiff was a solicitor practising in estate planning, including as an equity partner of Conway Maccallum Lawyers (later Diamond Conway) and a salaried partner of Bartier Perry. The plaintiff had been married to Ms Kemeny for 14 years when she died, although their relationship was in serious trouble and, were it not for Ms Kemeny's terminal condition, the couple would likely have separated earlier.
On their marriage, the couple had a wide disparity of assets. The plaintiff had a Kirribilli apartment, subject to a mortgage. Ms Kemeny had two unencumbered properties: a Paddington terrace (later replaced by a Darlinghurst apartment), where the couple lived, and a rental property in Surry Hills. Both had children in high school, to whom they were each devoted. The plaintiff and Ms Kemeny intended to leave their Estates to their respective children, and communicated this to each other on their marriage, also re-executing Wills on their wedding day to this effect.
Financial arrangements between the couple during their married life were strictly defined. Ms Kemeny insisted that the plaintiff pay 'rent' of $500 a week plus half of household expenses. Ms Kemeny looked after the house whilst the plaintiff enjoyed the balance of his salary as he chose. Adherence to this arrangement was a recurring stressor in the marriage. As Ms Kemeny's disease progressed, the plaintiff insisted that the 'rent' be paid into Ms Kemeny's superannuation, being an arrangement which was likely to benefit him but caused financial stress to Ms Kemeny, who was incurring significant medical expenses. Ms Kemeny paid for her own carers.
By reason of the plaintiff's professional speciality, he had well-developed views of what his wife should leave him in her Will being, essentially the Darlinghurst apartment. Ms Kemeny did not share his views but wished to leave as much of her Estate as possible to her children (the plaintiff also made Wills leaving his Estate wholly to his son, Patrick). This difference of opinion proved corrosive to their relationship, combined with the burdens of Ms Kemeny's advancing disease. The plaintiff pressed his views to the end.
Anticipating that the plaintiff would make a claim on her Estate, Ms Kemeny sought and followed legal advice. In her final Will, Ms Kemeny appointed her first husband, Gabor Kemeny, as executor of her Estate. By her Will, Ms Kemeny left the plaintiff her BMW car, artworks and her superannuation (totalling some $103,000) together with a right to occupy the Darlinghurst apartment for six months after her death, rent free, together with a right to occupy the Surry Hills property for a further two years at half market rent. Ms Kemeny left the rest of her Estate to her two children in equal shares.
The plaintiff continued to live in the Darlinghurst apartment beyond the six month period, prompting Mr Kemeny to bring possession proceedings. The plaintiff considered the Surry Hills property (a warehouse apartment) unsuitable, in particular, as it lacked proximity to his yacht club in Rushcutters Bay and did not have sufficient room to accommodate his newly acquired hobby of oil painting. Ms Kemeny's net estate comprises some $2.675 million, the primary asset being the Darlinghurst apartment, which is worth some $2.3 million.
For the reasons which follow, I have concluded that Ms Kemeny did make adequate provision for the proper maintenance, education or advancement in life of the plaintiff. The plaintiff may not consider the provision to be generous but it was entirely commensurate with the tenor of their relationship and their dealings with each other since its inception. This was not a traditional marriage and, having applied the considerations prescribed by section 60(2) of the Succession Act 2006 (NSW), the plaintiff did not have 'primacy in fact'.

[6]

Claims by spouse

As to a claim by a spouse of the deceased, the case law is collated and explained in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [98]-[109] by Brereton JA. As the application of the Succession Act critically depends on community standards, the development of the case law necessarily reflects the changing roles of men and women in committed relationships, in economic life, and in society. The oft-cited statement of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 - made 36 years ago - reflects the situation in traditional marriages rather than the starting point for all such claims. His Honour then said, at 69-70: It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.
In Marshall v Carruthers [2002] NSWCA 47, Young CJ in Eq (with whom Palmer J agreed) allotted Powell J's comments to "the typical mid-20th century widow" (at [76]), referrable to the economic disadvantages occasioned by the greater responsibility which women often took in raising children, being financially dependent upon their husband whilst also supporting him to amass his fortune: at [65] per Hodgson JA, [74] per Young CJ in Eq, Palmer J agreeing each. The male comparator of Luciano v Rosenblum is perhaps Re Sylvester [1941] Ch 87 at 89: Prima facie a husband should be able to maintain himself, and ought not to ask the court to give him, out of his wife's estate, more than she has thought to provide for him.
Nowadays, consideration is given to the length and quality of the relationship; the surviving spouse's contribution to the relationship, health, earning capacity, age and prospects; the size of the estate and competing claims: Bladwell v Davis [2004] NSWCA 170 at [13]-[19] per Bryson JA (Ipp JA and Stein AJA agreeing) and the authorities there cited. Surviving spouses do not have primacy over all other applicants regardless of circumstances, although where competing factors are more or less otherwise in equilibrium, an elderly widow or widower of the testator with less financial prospects than younger claimants will result in primacy as they have greater need: Bladwell v Davis at [2] per Ipp JA (Stein AJA agreeing).
Put shortly, the application of the criteria in section 60(2) of the Succession Act may well, in the case of longstanding, devoted marriages, have the consequence that the surviving spouse will be regarded as entitled to substantial provision being made to secure their quality of life and financial security going forward, but that cannot be assumed simply because they are the surviving spouse. If a spouse makes a claim for provision, the statutory considerations apply equally to them as any other claimant. As Parker J observed in Ikonomou v Panagopoulos [2017] NSWSC 1805, after noting societal changes as reflected in the case law, at [94]: In my opinion, there is no rule, general or otherwise, that following a long marriage the surviving spouse, by virtue of that status alone, will be entitled to provision out of the deceased spouse's estate sufficient to keep him or her in the same lifestyle as he or she enjoyed during the marriage. An entitlement to provision of this type must always be justified by reference to the circumstances of the particular case.

[7]

Testamentary intention

As to the intersection between freedom of testamentary disposition and the Succession Act, the power to make an order for provision is not to be exercised on the footing that great caution must be exercised before interfering with the freedom of testamentary disposition: Steinmetz v Shannon at [95]-[97] per Brereton JA (White JA and Simpson AJA relevantly agreeing); see also White JA's concurring remarks at [49]-[56], which White JA (with whom Meagher JA and Emmett AJA agreed) adhered to in Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 at [78]. However, in considering what is "proper", considerable weight may be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate: Megerditchian v Khatchadourian [2020] NSWCA 229 at [33] (citing Sgro v Thompson [2017] NSWCA 326 at [6]) and [43] per Payne JA (with whom Macfarlan and Emmett AJA agreed). As White JA explained, after referring to his previous judgments in Friend v Brien [2014] NSWSC 613 at [62], Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] and Sgro v Thompson at [80]-[88], in Olsen v Olsen at [75]: … where it can be seen that a testator has duly considered the claims on his estate, respect should be given to the judgment of a capable testator who will have been in a better position than is a court to determine such claims so that considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the testator was placed. …
Most recently, in Starr v Miller [2021] NSWSC 426, Hallen J reviewed the authorities in respect of freedom of testation and the Succession Act at [603]-[609], including the following observation of Callaway JA (Tadgell and Charles JJA agreeing) in Grey v Harrison [1997] 2 VR 359; [1996] VSC 74, which bears reproduction (at 366 [29]): … it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s. [59, Succession Act] the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. …

[8]

Evidence

Two evidentiary matters should also be noted. First, in respect of evidence advanced in support of a claim for provision, the observations of Macfarlan JA in Megerditchian v Khatchadourian are apposite: the fact of incomplete or unsatisfactory evidence may permit inferences unfavourable to the applicant for provision to be drawn; uncertainty left by imprecise or inaccurate evidence is not ordinarily to be resolved in favour of the person who was able to give the satisfactory evidence: at [36], citing Nicholls v Hall [2007] NSWCA 356 at [36] (Mason P, Hodgson and McColl JJA). As Parker J explained at first instance in Megerditchian v Khatchadourian [2019] NSWSC 1870 at [152]: … The onus lies on the plaintiff to prove his or her case. Usually the plaintiff cannot succeed in obtaining provision if he or she already has enough for his or her proper maintenance, education or advancement: Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at 231 [123]- [124] per Callinan & Heydon JJ. If the plaintiff fails to lead sufficient evidence about his or her financial position, this may have the result that the onus of demonstrating that he or she lacks enough financial resources for his or her proper maintenance, education and advancement, has not been discharged: Collings v Vakas [2006] NSWSC 393 at [66]- [67]. In this event, the Court does not have the choice it has about whether to draw a Jones v Dunkel inference. The claim must fail if the plaintiff has not discharged his or her onus.
Second, a large number of witnesses gave evidence as to their observations of the relationship between the plaintiff and his wife. Much of this evidence was second-hand from their understandings of what they gleaned from what the plaintiff or Ms Kemeny said from time to time and thus "not of great help in focusing on the key question and that is whether the deceased should have left the plaintiff provision and, if so, what": Radzyminski v Radzyminski [2008] NSWSC 239 at [8] per Young CJ in Eq.

[9]

WITNESSES

In total, 42 affidavits were read and some 1,200 pages of documents were tendered, including a large volume of medical records. The plaintiff read affidavits from 16 witnesses, comprising himself, his sister Anna, his son Patrick, friends Kerry Jones, Jennifer Biviano, Annette Brown, Mark Gardiner, Peter Hughes and wife Hilary Denholm, Eloise Clarke, Deborah Johnston, Jill Romuld, accountant David McGill, local café owners Edwina and Serena Sanderson and solicitor Michaela Money. The defendant read affidavits from 13 witnesses, comprising himself, son Michael, daughter Sarah and her husband, Ms Kemeny's sister Patricia Chandler, friends Vivien Booth, Jessica Holman, Ricardo Skaff, Rowena Cowley, Kimberley Zimmerlie, Tabatha McFadyen and solicitors Deborah Rutstein and Diana Perla.
The plaintiff was cross examined, as was his girlfriend, Ms Romuld, who was a pleasant and dignified lady whose evidence I accept.
The plaintiff seemed a very nice, intelligent man. However, there were a number of problems with his evidence. First, until his recent retirement, the plaintiff described himself as a leading wills and estates lawyer and an estate planning specialist. He was clearly knowledgeable about such matters but gave an appearance of being unaware of or disinterested in: the provisions of Ms Kemeny's prior or last Will (one of which he prepared and the last of which was obviously a matter of keen interest to him); important correspondence between solicitors in these proceedings; and, communications with his accountant in relation to distributions by his family trust, the MJS Family Trust, to Ms Kemeny. The plaintiff was evasive about a change of position in respect of trust distributions shortly before the hearing, blaming his accountant and suggesting that decisions in respect of trust distributions were made by his accountant rather than himself as the director of the trustee company. This seemed unlikely. The plaintiff's affidavits omitted information which he must have appreciated was relevant, for example, that he had commenced a new relationship and was no longer living in Sydney.
Second, the plaintiff proved a poor historian who tended to over-state his role and understate the roles of others, and to generalise where detail was obviously important and rendered the generalisation inaccurate. For example, the plaintiff said he had made a nomination in respect of his superannuation in favour of Ms Kemeny for several years, but did not add that he then made a nomination to benefit his Estate, of which Ms Kemeny was not a beneficiary: see [126]. See also [32].
On occasion, the plaintiff was evasive, for example, when cross-examined about a spreadsheet he had prepared setting out his estimated contributions to Ms Kemeny. Some of the plaintiff's answers were disingenuous, for example, he said he simply did not like acting for friends and family - "I just don't believe that that's appropriate" - but it is apparent he did so with reasonable frequency and was clearly keen to help Ms Kemeny prepare her last Will: see [36], [63], [176].
This does not mean that I have rejected the plaintiff's evidence; rather, I have approached it with a degree of caution.
The defendant was cross examined, as was his daughter Sarah and Ms Kemeny's friend, Ms Booth. No issues of credit arose. Mr Kemeny was straightforward and truthful; he did not exaggerate. He was terrible with dates. Sarah was straightforward, clear, open and honest and did not exaggerate. Sarah clearly did not think much of the plaintiff, but she had her reasons.
It is not possible to reconcile the evidence of all of the witnesses. To the extent that family and friends made observations on Ms Kemeny's mobility and needs at particular points in time, I have preferred the medical records to their recollections as to what Ms Kemeny could and could not do - and needed to have done for her - at particular points in time. The central witnesses were all educated, intelligent, articulate and sophisticated people. Thus, considering the widely varying accounts of what happened, I reviewed every contemporaneous document in chronological sequence before turning to the affidavit and oral evidence. This proved to be a helpful exercise.

[12]

They meet again

The plaintiff and Ms Kemeny met again at a school reunion and began dating. The differing financial circumstances of the plaintiff and Ms Kemeny on the formation of their relationship were later described by Ms Kemeny in an email: When I first met you you were working as a partner for (your old firm) and worked for AMP also. You had no money because, you told me, you had been generous to Diane. You had a large interest only mortgage for your apartment in Kirribilli and were paying many insurances. And you had your super and salary. You had a notion to set up an online wills package. I had my house, my small investment unit and a small nest egg investment. This represented my independence. You thought that was great - a woman with financial independence.
Evidence varied as to precisely when the relationship began, when the plaintiff began to spend the night at the Paddington terrace, and when the plaintiff moved in. The plaintiff says the relationship began in about March 2003 and, shortly afterwards, he began spending a few nights a week at the Paddington terrace where Ms Kemeny was living with Michael and Sarah. In June or July 2004, he moved in whilst the plaintiff's sister, Anna, moved into the Kirribilli apartment with Patrick. Patrick and Anna corroborate the plaintiff's account.
The plaintiff also provided legal assistance to Ms Kemeny to recover monies lent to a former acquaintance. Whilst the plaintiff's first affidavit appeared to suggest that he did this gratis, a trust account statement found amongst Ms Kemeny's papers indicates that Ms Kemeny paid for these services.
Mr Kemeny, Michael and Sarah place these events some time later. In 2003, Michael was in Year 11. He then had a difficult relationship with his mother. Supported by a school counsellor, Michael went to live with his father in late 2003 as he was able to study more easily there. Ms Kemeny was not happy about Michael's decision, but came to accept it. Michael then spent the weekends with his mother and sister. Michael never met the plaintiff while he was living with his mother in 2003. Michael recalls first meeting the plaintiff at the Paddington terrace in early 2004, "I remember vividly the first day I met the Plaintiff. I was a teen, around 16 years old and there was a man in the house whom I did not know". The meeting did not go well. Michael stopped staying overnight at Paddington.
Sarah says she first met the plaintiff after he and Ms Kemeny became engaged in about mid-2004. In about July 2004, the plaintiff gradually started staying overnight at the Paddington terrace and officially moved in after their wedding in November 2004.
I prefer Michael and Sarah's evidence as to when the plaintiff first came into their lives. These would have been seismic events in the life of these teenagers and Michael, in particular, can point to external events which permit him to be firm as to why the plaintiff's recollection is incorrect.
I am more confident in this conclusion because Ms Johnstone, who also attended the school reunion, said it happened in August 2003. Second, in December 2003, Ms Kemeny made a Will, appointing the plaintiff as executor. The plaintiff drafted the Will. The plaintiff was described in the Will as Ms Kemeny's "friend", being presumably a description that both the author and testator considered accurate at the time. (By her Will, Ms Kemeny left her Estate to her children in equal shares). Third, the legal fees referred to at [32] were charged to Ms Kemeny in March 2004, which might be thought odd if the parties had been dating for a year in the manner described by the plaintiff. It is noteworthy that the plaintiff said, in cross-examination: (emphasis added) That was very early in the relationship, and I was not at her place at that time. And look, as the relationship went on, I would not have acted in that capacity because I would have been in a relationship with her, that I would have felt would have precluded me acting for her. But at that very early stage, I felt it still appropriate that I could act for her, and look, the firm charged their own, I didn't personally charge her. And it wouldn't have been at full rates either, I suspect.
Fourth, it is inherently more likely that Ms Kemeny, as a dedicated parent (which there is no doubt she was) would have deferred introducing the plaintiff into the family home until the relationship had matured beyond its infancy. Thus I find that the plaintiff and Ms Kemeny formed a relationship which, by mid-2004, could be described as a committed relationship. There was no material co-habitation before their marriage.

[14]

Financial arrangements

The plaintiff agreed that, at the start of their relationship and before they were married, Ms Kemeny was very insistent on maintaining separate finances and financial records. Although the plaintiff suggested that they have a joint account for housekeeping, Ms Kemeny refused. The plaintiff and Ms Kemeny maintained separate bank accounts.
The plaintiff performed maintenance and repairs on the Paddington terrace and paid for some of these repairs. Mr Kemeny was aware that the plaintiff paid for some repairs, but Ms Kemeny told him that the plaintiff paid for the repairs in lieu of money which he owed her, which is confirmed by Ms Kemeny's email set out below.
The agreement between the plaintiff and Ms Kemeny as to the plaintiff's contribution to household expenses is, I think, revealed in an email from Ms Kemeny to the plaintiff, sent in September 2015, when disagreements about money had reduced the couple to email correspondence. Ms Kemeny set out "my point of view in writing, for your reference": You paid for the fixing of the upstairs water damaged roof at $30,000 as your contribution for living in the place I otherwise had secured and furnished. Going forward, you said you would prefer to pay a monthly contribution and I said then I would be responsible for future renovations of the house. We agreed that money was your contribution and my money to apportion. That I would not therefore put it on you for further house repairing moneys. ... (I remind you that we originally agreed to $500/week, which is $26,000/annum. You actually pay $2,000/month which is $24,000/annum, so you already save $2,000 (a trip to the UK)/annum. This agreement is a perfectly reasonable agreement.)
In addition to the plaintiff's $500 a week as his contribution for living in Ms Kemeny's house, Ms Kemeny sought half of household expenses from the plaintiff. Four handwritten notes prepared by Ms Kemeny are in evidence, which indicate that Ms Kemeny required the plaintiff to pay half of household bills, including car servicing, telephone, gas, electricity, water, insurance, rates and wine. (The plaintiff did not accept that Ms Kemeny kept such meticulous records consistently).
Ms Kemeny told Mr Kemeny that the plaintiff was paying $250 a week for his share of housekeeping and $500 a week, being half of market rent. Of this arrangement, Ms Kemeny told Mr Kemeny on a number of occasions, "Michael has got nothing to complain about. Other than paying his share of expenses and rent, Michael gets to keep his salary". Ms Kemeny told Mr Kemeny that she kept her finances completely separate from the plaintiff and sometimes complained, "Michael's pretty tight and tries to avoid paying his share, but I keep on top of it".
Mr Kemeny said Ms Kemeny was a pedantic person when it came to money and kept records of the amounts owed to her, and wrote meticulously on each bill who paid it and when. When out to dinner with Ms Kemeny and the plaintiff, Mr Kemeny says they kept tabs on whose turn it was to pay. Ms Kemeny often told Sarah of the arrangement she had with the plaintiff whereby each paid for their half of expenses. Sarah often saw her mother working out her finances at the dining room table.
In contrast, the plaintiff said that he paid Ms Kemeny $250 a week housekeeping money for the duration of their relationship. In addition, he usually paid for groceries and joint living expenses such as dining out, medical insurance, entertainment and utility bills with Ms Kemeny reimbursing him from time to time on an ad hoc basis for some of these joint expenses. The plaintiff prepared a detailed analysis of the payments he made during his relationship with Ms Kemeny. From bank statements, he identified some $35,000 per annum paid to Ms Kemeny including superannuation contributions and for joint or household expenses. The plaintiff agreed, however, that these figures did not factor in any payments made by Ms Kemeny for him. It is apparent from Ms Kemeny's handwritten notes that some of the plaintiff's payments to her were, in fact, reimbursement of his share of household expenses which Ms Kemeny had already paid. The analysis contained other errors, including that the plaintiff included the purchase of Ms Kemeny's 60th birthday present as a joint expense for which she was obliged to pay half.
The plaintiff's calculations, prepared for the purpose of these proceedings, is equally explicable with an agreement with Ms Kemeny that he would pay $500 a week 'rent' for living at the Paddington terrace and half of household expenses. The contemporaneous documents support the existence of such an agreement. In circumstances where the plaintiff was working full-time and in receipt of a law firm partner's salary, whilst Ms Kemeny owned and ran the home in which they lived (Ms Kemeny later said, "For twelve years or more I did everything, everything.") but did not herself enjoy a wage, it may not have been an arrangement which every married couple would have agreed upon, but was likely agreed upon by this couple.
In addition, Ms Kemeny notionally received trust distributions from the plaintiff's family trust, the MJS Family Trust. The plaintiff's income paid by the law firm was paid to the trust and, when he required funds, he transferred money from the trust to his personal bank account. The plaintiff's accountant suggested that all trust income be distributed to his wife as she was on a lower tax bracket. At the end of each financial year, the plaintiff caused the trustee to resolve that distributions of income from the trust be made in favour of Ms Kemeny. The plaintiff told Ms Kemeny that he would distribute the income accordingly, and would also pay the tax on the distributions for her. The distributions were declared, but not actually paid to Ms Kemeny. Presumably, the plaintiff received a benefit from this arrangement in the form of reduced tax.
The plaintiff and Ms Kemeny had a clear separation of finances from the outset. The plaintiff earnt an income as partner of a law firm, from which he paid $500 a week 'rent' to Ms Kemeny, in recognition of the fact that he was living in her home, which Ms Kemeny could use as she saw fit to maintain and renovate the Paddington terrace. In addition, they shared household expenses equally. Ms Kemeny went to some effort to ensure that this arrangement was observed. As will become clear, the plaintiff became unhappy with this arrangement in later years, in particular, with respect to the $500 a week 'rent': see [93]-[96].

[16]

Married life

The plaintiff says he enjoyed living with Ms Kemeny and Sarah, and became involved in Sarah's studies and activities. Sarah's description of his involvement is more confined; Sarah says that, after the wedding, the plaintiff was still often at the Kirribilli apartment where Patrick was living.
The plaintiff says that Ms Kemeny, "was fantastic with my son Patrick. She was always more than willing to have him around to our home, along with his friends". Ms Kemeny and the plaintiff hosted Patrick's 21st birthday party at the Paddington terrace with about 50 guests and Ms Kemeny put in a huge effort to organise the event. Patrick also lived with the plaintiff and Ms Kemeny in the Paddington terrace for about 11 months. Certainly, Ms Kemeny and Patrick formed a good relationship.
In the early years of their relationship, the couple hosted a number of dinner parties at the Paddington terrace; Ms Kemeny was a fine cook (This is a fact on which all witnesses wholeheartedly agree). The plaintiff says that he and Ms Kemeny did the shopping together; he did the bulk of the preparatory work while Sarah set the table. The plaintiff learnt some skills from Ms Kemeny and had certain dishes that were his to prepare in their entirety. Sarah's husband attended the Paddington terrace over five years or so for these dinners. As he describes it, Ms Kemeny and her daughter shopped for ingredients, chose wines, prepared the house and were busy in the kitchen whilst the plaintiff and Sarah's husband watched them work and did the odd task as requested such as taking things to the table or scraps to the compost bin, whilst having some of the wine that Ms Kemeny had provided from her great collection. He can recall only one occasion where the plaintiff cooked some chicken on the barbecue and, at other times, lent a hand cooking potatoes.
According to the plaintiff, he and Ms Kemeny often spent their weekends on walks at Dee Why, Bobbin Head and Eastern Suburbs coastal walks. They also attended a number of liquor industry events, invited by Mr Kemeny. Before Ms Kemeny's illness, they went on a few holidays together to Darwin and Kakadu and overnight trips to the Blue Mountains. Sarah says her mother and the plaintiff went on very few holidays together but travelled separately a few times. This description does appear accurate, at least after Ms Kemeny became unwell: see [91]-[92].
The plaintiff, Ms Kemeny, Michael, Sarah, Patrick and Mr Kemeny enjoyed solid friendships with each other. Mr Kemeny says he had a good relationship with the plaintiff and Ms Kemeny. When they were out together, Ms Kemeny often referred to Mr Kemeny and the plaintiff as "husband number 1 and husband number 2". Mr Kemeny was a regular visitor to their home for events such as Christmas and children's birthdays. The plaintiff and Mr Kemeny shared a love of sailing; Mr Kemeny introduced the plaintiff to cycling.

[17]

The plaintiff's superannuation

The plaintiff had some superannuation whilst Ms Kemeny did not. In March 2005, the plaintiff signed a document, "Testamentary Wishes of Michael John Schneider", so that Ms Kemeny and Patrick were clear on his wishes in the event of his premature death. The document stated: It has been my intention for some months now to make provision for Kathy in a way that ultimately enables Patrick to receive the capital I provide to her upon her death. Kathy, though asset rich, will be in need of an income stream. Patrick, upon finishing his education I expect, will have an excellent income stream. With this in mind, I have provided Kathy with a Binding Death Benefit Nomination such that she will receive 100% of the assets in my AMP superannuation fund.
According to the document, the plaintiff intended that Ms Kemeny pass onto Patrick sufficient of the superannuation monies to enable Patrick to maintain himself until he left university, including a 'gap' year. The plaintiff wished Ms Kemeny to enter into an agreement with Patrick to retain sufficient property of a value equivalent to the amount of superannuation which she used, and to make provision in her Will for Patrick to that amount. As I understand it, the plaintiff intended that, if he pre-deceased his wife, Ms Kemeny would have the use of his superannuation fund during her lifetime but would leave enough for Patrick to complete his studies and also, by her Estate and Will, to reimburse Patrick for the funds which she had used. In 2006, the plaintiff executed a Binding Death Benefit Nomination in which he nominated Ms Kemeny to receive 100% of his superannuation death benefit.
In 2006, Patrick moved out of the Kirribilli apartment into a house in Bellevue Hill owned by Mr Kemeny. The plaintiff rented out the Kirribilli apartment and later sold it for about $560,000. After paying out the mortgage of some $150,000, the bulk of the net proceeds were placed in the plaintiff's superannuation fund. According to the plaintiff, the Kirribilli property was sold following financial advice to diversify their assets, with the proceeds of sale to be paid into superannuation to provide an income for the couple on retirement. According to Ms Kemeny's email, "You sold Kirribilli to free up some funds as you were now living with me".

[18]

Plaintiff asks Ms Kemeny to change her Will in his favour

In about 2006, the plaintiff spoke to Ms Kemeny on several occasions, saying they should really talk about estate planning, but she did not wish to discuss it. After finally seeing a financial adviser and agreeing upon a strategy of selling the Kirribilli property to be put into superannuation, the plaintiff told Ms Kemeny, "You need to make sure I am looked after as well. If you die, I will have income but nowhere to live. You need to make sure I have a place to live. Right now, you have more assets than me. But over time, this will change." The plaintiff offered to prepared draft wills but Ms Kemeny did not wish to discuss it. According to the plaintiff, "We had a very long conversation outside Bunnings … and we didn't finish the discussion. It was one of those difficult discussions, which she clearly didn't want to have … We never got to a detailed discussion about her or my will. It was always high level".
The plaintiff's suggestion that he had a concluded agreement with Ms Kemeny to make a new Will in return for the plaintiff selling the Kirribilli apartment and investing it in superannuation was not established. Perhaps having been divorced and now only two years married, Ms Kemeny found it hard to understand why, in return for her husband contributing $560,000 to his superannuation fund, she should make provision in her Will to leave her husband a property of far greater value. Even on the plaintiff's version of events, Ms Kemeny never warmed to this proposition. Following Ms Kemeny's diagnosis, the plaintiff says that she became "even more strident" whenever he raised the issue of estate planning.
According to Patrick, a few years after the plaintiff married Ms Kemeny, his father told him: Kathy and I have decided that in the event that one of us dies, our assets will be used to support the other, until the other dies and then the assets will revert back to the child or children of that person. So, if I die first, my assets will be held on trust to support Kathy and then you will receive them when Kathy dies; and if she dies first, her assets will support me and then go on to her kids when I die. The plaintiff repeatedly told Patrick about this arrangement as the years passed. Any such comments to Patrick would have been aspirational. The plaintiff always understood that Ms Kemeny had a Will in place which left everything equally to her children, "That became of huge concern to me over time". The plaintiff's ideas on estate planning were not shared by his wife, notwithstanding his efforts to persuade her of his views.
In 2008, Sarah moved to Brisbane to study a Bachelor of Music at the Queensland Conservatorium of Music. In 2009, Michael moved overseas to further his studies but spoke to his mother by Skype several times a week and maintained constant email and, later, Whatsapp communication. Michael flew back to Australia for Christmas most years.
In July 2009, the plaintiff signed a superannuation nomination form, nominating Ms Kemeny as the sole beneficiary of his superannuation. In addition, a superannuation fund was established in Ms Kemeny's name with $40,000 deposited in July 2009 and $20,000 deposited in August 2009. The plaintiff made these contributions. The plaintiff appears to have had a relationship with AMP, in addition to working as a lawyer, and appears to have favoured superannuation as an investment strategy.

[20]

The journey begins

Mr Kemeny and, more particularly, Sarah, challenged the nature and quality of the plaintiff's relationship with Ms Kemeny and the care provided during her illness. The plaintiff's solicitor compiled medical records recording every attendance of the plaintiff or Sarah with Ms Kemeny during her treatment. (This compilation would not have captured attendances by other family members or friends, nor the occasions when Ms Kemeny had no-one with her.) Given the emphasis that this issue received in these proceedings, I have reviewed the medical records and summarised what the records reveal as to the plaintiff and Sarah's involvement in Ms Kemeny's care.
On 12 October 2009, Dr Spielman had a telephone consultation with Ms Kemeny. On 23 October 2009, Dr Spielman spoke with the plaintiff and Ms Kemeny, confirming the diagnosis following excision of a lump. On 28 October 2009, Dr Spielman sent an email to a medical colleague noting, "I have been speaking to [the plaintiff] today." On 30 October 2009, Dr Spielman had a long discussion with Ms Kemeny regarding her diagnosis and how best to fight it. Her notes record, "Talked about family and who is able to support her and their approaches". On 18 November 2009, Dr Spielman examined Ms Kemeny in her surgery. On 20 November 2009, the plaintiff and Ms Kemeny met with oncologist, Professor Richard Kefford, to discuss options. On 27 November 2009, the plaintiff and Ms Kemeny saw Dr Lynette Ward (Ms Kemeny had fallen and broken her hand), who called Ms Kemeny on 28 November 2009 to convey x-ray results. On 30 November 2009, Dr Spielman telephoned Ms Kemeny, who was starting chemotherapy.
On 30 November 2009, chemotherapy began. The patient registration form for Westmead Cancer Care Centre noted the plaintiff as Ms Kemeny's next of kin. On 4 December 2009, Dr Spielman asked the plaintiff to come in and get Ms Kemeny's prescriptions. On 21 December 2009, Dr Spielman had a telephone consultation with Ms Kemeny regarding recent surgery and chemotherapy resuming the next day. On 19 January 2010, Ms Kemeny had further chemotherapy and was discharged home in the care of the plaintiff. On 3 February 2010, the plaintiff called Dr Spielman to update her on Ms Kemeny's progress.
According to Mr Kemeny, after Ms Kemeny was diagnosed, their contact became more frequent and they often talked and messaged each other several times a day. On 8 February 2010, both the plaintiff and Mr Kemeny were at the hospital; Mr Kemeny was asking questions about the disease. On 10 February 2010, Dr Spielman sought a second opinion from Professor Hersey regarding the most effective management of Ms Kemeny's disease noting she was under the care of Professor Kefford, "as I'm sure she and Michael will explain in detail". On 15 February 2010, Mr Kemeny was again in attendance at the hospital, requesting "total surgery". Ms Kemeny later recalled in a text message to Mr Kemeny: I have always been extremely grateful for all the research you did when I was diagnosed … I was gobsmacked when [a doctor] said to me "Come back when you're really sick" and totally supported you when you yelled at her on my behalf. … I will never forget that you and Sarah did extensive and exhaustive research into new trials. As a result, I got on to [a trial] which saved me [f]our years. … I remember [the plaintiff] said you shouldn't have challenged that [doctor] … these days he knows you much better …
Mr Kemeny recalls that he and Sarah did extensive research into Ms Kemeny's condition and the various medical trials taking place and pushed for Ms Kemeny to be accepted for clinical trials. Sarah says Mr Kemeny rang and told her, "Mum is really scared and Michael isn't doing anything". Sarah became absorbed in investigating the diagnosis and researched trials being conducted in Australia and overseas, including medical journals and papers on melanoma and cold-calling professors from medical institutes and hospitals to see if they would accept Ms Kemeny as a candidate for a trial. According to Sarah, "I became so well researched on the trials and treatments that the professors would ask me what field of medicine I was studying". According to the plaintiff's first affidavit, it was he who begged for Ms Kemeny's inclusion in the trial rather than Mr Kemeny. I expect that all of them did what they could to have Ms Kemeny included in clinical trials.
Sarah deferred her studies and moved back to Sydney and became her mother's full-time aide, driving her to appointments and staying with her, sometimes overnight in hospital, for medical treatment. Most of the medical appointments were during the week and generally took the whole day. Sarah did not view herself as her mother's 'carer'; "I knew Mum needed my assistance and I wanted to be there for her". Sarah also did some work for her father's business, primarily in event management and working with national distributors.
On 9 March 2010, Ms Kemeny was admitted to Westmead Private Hospital. The plaintiff was noted as next of kin. On 7 April 2010, Dr Spielman had conversations with Ms Kemeny, Mr Kemeny and Sarah regarding Ms Kemeny's treatment and options. On 13 April 2010, the plaintiff and Ms Kemeny attended Dr Ron Bova, a surgeon to discuss possible surgery. On 19 April 2010, Dr Spielman spoke to the plaintiff about a possible medical trial. On 18 April 2010, Professor Kefford reported to a fellow professor, "I have mentioned to her and [the plaintiff] that she would probably be an ideal candidate" for a particular medication.
On 6 May 2010, Ms Kemeny emailed Michael noting, "We were at the hospital this morning starting the trial drug. Sarah and I were there yesterday 7am - 7pm because I had to do a drug interaction trial as part of the deal". On 14 July 2010, Ms Kemeny emailed Michael: Tomorrow morning Sarah is taking me to the hospital for my check up … this afternoon … Sarah and I were driving back from Westmead. I was booked in for an echocardiogram … and because of peak hour traffic we arrived late and they said too bad they had already turned the machine off so I have to go back again on Friday afternoon. Sarah goes to Brisbane on Friday at 2pm. That will be 3 days in a row I have to go out to Westmead. When we got home Sarah said she had just been driving 2.5 hours, because of peak hour traffic. For that amount of driving we could have been in Canberra or Lithgow, or heaps of other places more interesting that just Westmead and back. … The plan is to go out tomorrow night with Patrick being back and Sarah going back to Bris.
Whilst the nine months after diagnosis appears to have involved a significant number of medical appointments and treatments, these reduced in the next three years. Patrick moved into the Paddington terrace in early 2011 and lived there for about a year. He recalls the plaintiff and Sarah being involved in discussions about Ms Kemeny's medical treatments. On 5 August 2011, Ms Kemeny saw Dr Spielman for review, noting she and the plaintiff had attended retreats together. Ms Kemeny was doing well. On 5 August 2011, the plaintiff again signed a superannuation nomination form, directing that his superannuation be paid to Ms Kemeny. Another nomination to similar effect was signed by the plaintiff on 18 July 2012. On 18 December 2012, the plaintiff and Ms Kemeny saw an oncologist, Dr Mary Azer, for review, "I had a long discussion with Katherine and her husband".
In 2013, Sarah resumed her studies at the Sydney Conservatorium. Sarah was then 25, when she would otherwise have already finished her studies. Ms McFadyen is a director at Opera Australia and described opera as an industry in which opportunities are proportionate to age; entry level jobs and scholarship opportunities often have age cut-offs of 26, with most ending around 30. Ms McFadyen also described Sarah as an exceptionally talented, incredibly motivated artist. Sarah's goal was to be a soloist opera singer with a major company. She planned to get involved in the "Young Artist Program" with a major opera house. Sarah says her mother planned her medical appointments around Sarah's university schedule so that Sarah could drive her. This is confirmed by Sarah's opera teacher, Ms Cowley.
In April 2013, Ms Kemeny agreed to participate in a medical trial. Her consent form was witnessed by the plaintiff. On 1 May 2013, an oncologist wrote to Professor Kefford regarding the removal of a tumour, noting "Katherine and her husband are keen to proceed in this way". On 31 July 2013, Dr Spielman's notes record "Sarah and Michael [likely the plaintiff] worried re lump in her left shoulder". Dr Spielman examined the patient and saw Ms Kemeny again on 2 and 5 August 2013. On 21 August 2013, Ms Kemeny updated Michael as to her progress, noting she had seen the surgeon today about surgery to remove a lump on her shoulder, "Sarah asked him all about the trial … I have been really stressed and upset these last three weeks. I'm much relieved tonight, but super exhausted. I need a good night's rest and I'll be back on board tomorrow".
In September 2013, Patrick moved to the United Kingdom to study at Oxford University whilst Sarah moved out to live with her then boyfriend, now husband, in Centennial Park. On 10 February 2014, Ms Kemeny emailed Michael: Sarah and I spent all day at the hospital today, mostly waiting 2 ½ hrs for my clinic appointment! We discussed next drug options. All scary and confronting. When I got home I had to catch up on daily chores. I'm totally exhausted! …
On 20 February 2014, Ms Kemeny received further chemotherapy and was discharged home with Sarah. On 27 February 2014, Ms Kemeny was reviewed by oncologists with the plaintiff and Sarah. "She lives in Paddington with Michael and Sarah and there are two other children overseas living in Oxford and Berlin. … We had a broad discussion with Katherine and her family …" On 13 March 2014, Ms Kemeny was reviewed by another oncologist who noted, "I had a discussion with Katherine and her daughter regarding future treatment options." Ms Kemeny was reviewed again on 20 March 2014, this time with the plaintiff and Sarah.
On 9 April 2014, Ms Kemeny saw Dr Spielman, reporting "Sarah [is] good, son overseas is angry, husband Michael is okay but plodding along". On 11 August 2014, Ms Kemeny was admitted to hospital for chemotherapy. The plaintiff was noted as her next of kin whilst Sarah's contact details were provided as the emergency contact. Ms Kemeny was discharged home with Sarah. On 4 September 2014, Ms Kemeny received further chemotherapy and was discharged home into the care of Sarah. On 25 September 2014, 16 October 2014 and 6 November 2014, Ms Kemeny received further chemotherapy and was discharged into the care of Sarah.
On 27 November 2014, Ms Kemeny received further chemotherapy and was discharged into the care of the plaintiff. On 16 December 2014, Ms Kemeny received further chemotherapy and was discharged home in Sarah's care. On 8 January 2015, after chemotherapy, Ms Kemeny was discharged home with the plaintiff. On 28 February 2015, after chemotherapy, Ms Kemeny was discharged home with Sarah; on 12 March 2015 and 2 April 2015, Ms Kemeny was discharged home in the plaintiff's care after chemotherapy. On 15 May 2015, after chemotherapy, Ms Kemeny was discharged home in the care of Sarah and, on 24 May 2015, discharged home in the plaintiff's care.

[21]

Financial stress for Ms Kemeny

On 18 September 2014, Ms Kemeny's mother advanced $50,000 to Ms Kemeny in light of the financial strain resulting from her ongoing medical issues. The money was received as an advance on Ms Kemeny's inheritance. The plaintiff witnessed Ms Kemeny's signature on an acknowledgement of the advance. As Ms Kemeny later noted in an email to the plaintiff: In late 2013, early 2014 I had three general operations within a few months and it added to my credit card interest bill. At one point you loaned me some money to pay my credit interest. Then my brother advanced me some money from my inheritance (apparently at my mother's wishes) and I repaid my snowballing interest. I repaid you the money you lent me by paying your share of utility payments until I was repaid.
It is apparent from Ms Kemeny's email - and self-evident from the medical records - that Ms Kemeny was incurring significant medical expenses and had limited financial resources to pay these bills. According to Mr Kemeny, Ms Kemeny was very concerned about running out of money and would often say to Mr Kemeny, "I can't spend too much. I have only a limited amount of earnings and I have to be careful of protecting my nest-egg as I have to live off it. I know Michael won't help me in an emergency and, if I die, I don't want to waste the children's inheritance".
Michael was planning to come to Australia in 2014 with his long-time girlfriend, now his wife. They were planning a trip to Tasmania with Ms Kemeny but the trip was cancelled. Ms Kemeny told Michael that the plaintiff did not want to spend any money travelling to Tasmania and had cancelled the trip. (The plaintiff says he cancelled the trip as he did not want to travel with Michael.) Michael told his mother that the plaintiff "is always so tight with money and never [lets] you spend any on travel or on life".
Michael raised his concerns about the plaintiff's aspirations for Ms Kemeny's assets with his mother directly; she assured Michael that she and the plaintiff were keeping everything separate and each party's assets would be inherited by their own children. On 20 November 2014, Ms Kemeny sent an email to her son and Mr Kemeny regarding Michael's concerns about Ms Kemeny's financial arrangements with the plaintiff: (emphasis added) … I have told you before that [the plaintiff] pays his way. What he does with the rest of his money is his business. … [The plaintiff's] money is not all my money and my house is not [the plaintiff's] were it sold. … What money I do have in reserve I have to keep a budget on because at any time I may need it - and more which I don't have - for some treatment or other. It would be the most foolish to squander it. Who is there to bail me out?
It is apparent that, not only did the plaintiff and Ms Kemeny keep their finances separate in relation to household expenses, but that arrangement extended to Ms Kemeny's medical expenses. Ms Kemeny funded these expenses and did not feel that she could look to the plaintiff if she exhausted her own financial resources. In April 2015, Ms Kemeny received an inheritance of $150,000 following the death of her mother. Presumably, this provided some financial relief for Ms Kemeny.
In June 2015, Ms Kemeny travelled to Germany with Mr Kemeny and his mother for Michael's graduation. On 5 June 2015, after chemotherapy, Ms Kemeny was discharged home with Sarah. On 21 June 2015, Ms Kemeny travelled alone to Melbourne for a conference related to environmental issues. On 26 June 2015, Ms Kemeny was discharged home in the care of the plaintiff.
In July and August 2015, the plaintiff travelled to the United Kingdom to attend Patrick's graduation; the plaintiff and Patrick then travelled together. On 7 August 2015, after chemotherapy, Ms Kemeny was discharged "into care of self". On 28 August 2015, she was discharged into the care of Sarah. On 18 September 2015, after chemotherapy, Ms Kemeny was discharged into Sarah's care.

[22]

A financial disagreement

In June 2015, whilst Ms Kemeny was overseas, the plaintiff stopped paying his $500 a week 'rent', "without even telling me". The plaintiff paid nothing in June, paid the July 'rent' by two instalments, paid only $500 in August 2015 and nothing in September 2015. This situation prompted an email from Ms Kemeny, who noted: (emphasis added) The subject of money between us follows a similar pattern. I find it extremely distressing. … You said you [stopped paying] because I had not agreed to your paying it into super. My answer to that had been that I needed to be able to access the money and that was fine if I could do that but not to do that without first finding out and letting me know. You didn't at that time. You just stopped payment when I was overseas. … You have many excuses why you should not be paying me any contribution. They are excuses. Not reasons. You even have the temerity to say I should be using my inheritance money and I have an investment and I therefore should be supporting you!!
On 21 September 2015, the plaintiff resumed paying $2,000 a month, but to Ms Kemeny's superannuation. Ms Kemeny complained to Mr Kemeny, "Michael insists on paying his rent by way of superannuation contributions which doesn't suit me". Ms Kemeny said that the plaintiff's rent was being paid this way because it helped the plaintiff with his tax.
The plaintiff agreed that it was more tax effective to transfer the money into superannuation "and it put a brake on Kathy's spending. I felt we were living beyond our means". The plaintiff also attributed his cessation of payments to Ms Kemeny's failure to honour their agreement in respect of their Wills, being an agreement which he could not reasonably have considered had been finalised: see [63]-[65].
The plaintiff must have appreciated that his wife had substantial medical expenses and needed ready access to funds. In circumstances where Ms Kemeny was diagnosed with a terminal disease, paying monies into Ms Kemeny's superannuation fund appears to have been directed to ensuring that the funds were preserved. In cross examination, the plaintiff agreed that being bequeathed Ms Kemeny's superannuation "formed part of a package of expectations". Thus, the plaintiff's actions in paying the 'rent' into Ms Kenemy's superannuation appear to have been directed to securing his financial future more than Ms Kemeny's immediate financial needs.

[24]

Sarah goes to London

On 24 February 2017, Sarah moved to the United Kingdom with her husband where her husband had a two-year appointment, "Mum's health was clear at that time". Sarah also had a contract with Opera Australia in Sydney and decided to live between Sydney and London for those two years. In March 2017, Sarah returned to Sydney to graduate and her mother attended the graduation, walking unaided. In April 2017, Sarah returned to the United Kingdom.
At about this time, Mr Kemeny encouraged Ms Kemeny to get a cleaner to assist with daily tasks. Since Sarah had gone to London, the Paddington terrace had become untenable for Ms Kemeny due to its steep stairs and, as Ms Kemeny was not as mobile, the house was in a dirty and unkempt state. Ms Kemeny told Mr Kemeny that the plaintiff would not clean nor agree to pay half the costs of a cleaner; Ms Kemeny refused to pay for the cleaner herself, "That is not right and not fair". The plaintiff agreed that Ms Kemeny suggested that they get a cleaner, but he said they needed to de-clutter the house first; he was "working and caring for Kathy and it was difficult to find the time to clean."
Whilst in London, Sarah endeavoured to further her operatic career. On arriving in London, Sarah began coaching with internationally acclaimed performers and undertaking course work with London's National Opera Studio, a gateway to the English National Opera Company. Sarah auditioned for Placido Domingo, head of LA Opera in Los Angeles, and enrolled in an intensive German language course in Berlin. Sarah's husband said that his wife graduated with a Masters of Opera and dreamt of performing in Europe; living in London was the perfect opportunity to place her "right in the thick of it", although being away from her mother caused Sarah considerable angst. Sarah and her husband invested money in the growth of Sarah's professional network via coaches, courses and auditions. As will be seen, this proved difficult as Sarah had to return to Sydney on a number of occasions and cancel contracts, courses and master classes so that she could be in Sydney for her mother.

[26]

A turn for the worse

On 22 May 2017, the plaintiff and Ms Kemeny saw an oncologist who observed a "drastic change" since Christmas 2016: Speaking to Katherine and Michael, she has missed appointments and it sounds like there has been significant depression and fear overlaying things. I think she has known she is progressing and there has been much fear about discussing this. ... Today [we] had a frank discussion with Katherine and Michael regarding the significance of progression. According to text messages exchanged between the plaintiff and Patrick, "Gabor has spoken to Sarah already. Kathy will speak to Sarah tonight. Sarah's upset. Kathy is upset that Sarah is upset".
On 29 May 2017, the plaintiff sent further text messages to Patrick reporting on Ms Kemeny's condition noting, "Her general condition is not good. She can barely stagger to the loo. Her mind remains good. I'm exhausted. But not overburdened." On 31 May 2017, Ms Kemeny was discharged from hospital into the plaintiff's care. On 1 June 2017, the plaintiff contacted Patrick again, asking him to arrange for Sarah and Michael to contact him, "Kathy has spent a second night where she doesn't have the strength to roll herself over in bed. … You all should know what she is going through. She doesn't want to upset Sarah and Michael. They need to know".
On 2 June 2017, Dr Spielman saw Ms Kemeny at home and noted, "[M]ichael exhausted and worried about her falling. Sarah has been in touch too". Discussion ensued about admitting Ms Kemeny to Wolper Jewish Hospital for respite care. Sarah called her mother's treating doctor at Wolper Jewish Hospital about her mother's condition. Sarah provided various information sought in respect of her mother noting, "although if you need to contact her, it might be best to call my stepdad …" Admission forms record the plaintiff as Ms Kemeny's carer and next of kin. Ms Kemeny was admitted to Wolper Jewish Hospital, "Husband present". Sarah also arrived in Sydney from Berlin, just days before formal completion of a course being undertaken for her opera singing. Michael also flew back from California.
On 5 June 2017, Ms Kemeny was assessed by a physiotherapist, who reported that Ms Kemeny lived with her husband in a two storey house and with a number of internal steps. "Husband works plus patient left alone for long periods of the day. No formal support - reports a lot of strain on husband". A discharge planner was enlisted to help with assessing safety and services at home. Ms Kemeny was agreeable to considering assistance. An occupational therapist's notes record, "Spoke now [with] husband and daughter who will assist [patient] to identify specific activities requiring external assistance. Plan for OT home visit on Wed[nesday 7 June 2017] … [with] husband and daughter. [Patient] is not safe to attend currently. Family keen to look at various options for accommodating [patient's] disease progression eg stairlift, moving downstairs etc."
On 5 June 2017, Ms Kemeny was permitted to leave hospital with Sarah for an hour in a wheelchair. An oncologist noted that, although Ms Kemeny was unable to get out of bed the previous week, after a week in hospital she "has had a remarkable turn around and is now apparently completely back on deck".
On 7 June 2017, Sarah took her mother out of the hospital again for a medical appointment to consider brain surgery. The plaintiff also attended. Earlier that day, an occupational therapist met with the plaintiff at their home to look at alterations to the accommodation to suit Ms Kemeny's condition. The notes record, "Home [environment] is very difficult regardless of which modifications can be made. Husband very willing to make any changes required to accommodate wife's needs and changing condition."
On 8 June 2017, hospital notes record, "Sarah will take Katherine". On 9 June 2017, the occupational therapist spoke with Ms Kemeny and the plaintiff again regarding the installation of stair lifts. It was decided to contact the plaintiff after surgery to review Ms Kemeny's condition and function prior to implementing any home modifications. Sarah was also at the hospital and gave the nursing staff detailed instructions on preparations for Ms Kemeny's surgery. On 9 June 2017, pre-admission forms were completed for Ms Kemeny's brain surgery. The next of kin on the admission forms was Sarah. Persons to contact were Sarah and the plaintiff. Sarah was present during admission. The discharge planning form noted that Ms Kemeny would be discharged to Sarah's care.

[27]

Ms Kemeny makes a Will

On the morning of 9 June 2017, solicitor Deborah Rutstein received a call from Ms Kemeny, who had been referred by Dr Spielman. Ms Kemeny wanted a Will done as soon as possible as she was suffering from a terminal illness and was having a big operation in the next few days. Ms Rutstein took instructions from Ms Kemeny over the phone, noting that Ms Kemeny was "clear in thought". Ms Kemeny asked Ms Rutstein to send the draft will to Sarah's email, and they arranged for Ms Rutstein to attend upon Ms Kemeny at Wolper Jewish Hospital.
At 4.30 pm, Ms Rutstein went to the hospital and met with Ms Kemeny. Sarah was in the room and Ms Kemeny wanted her to stay. Ms Rutstein read the Will and made various changes, following which the Will was signed. Mr Kemeny witnessed execution of the Will; Mr Kemeny only came into the room to witness the Will and left immediately afterwards. He did not read or discuss the Will with Ms Kemeny or Ms Rutstein and only became aware of its contents after Ms Kemeny passed away.
By her Will, Ms Kemeny appointed her children as executors or, if they were unable to act, then Mr Kemeny. The Will contained provisions not dissimilar to those of her final Will. Unlike her previous Will - which left everything to Michael and Sarah - Ms Kemeny left the plaintiff various artwork, her car and superannuation, together with a right to reside in her principal place of residence rent free for three months and a right to reside rent free in the Surry Hills apartment for a further two years. Ms Kemeny also appointed Sarah or, alternatively Michael, as her attorney and enduring guardian.
Ms Kemeny showed the Will to the plaintiff, who reported to Patrick, "… she has completely cut me out, left me with nothing. … I feel so betrayed. After everything we've been through, to go against everything we had talked about like this … it's devastating. … Things have been so strained between us, but I have stuck it out to look after her because she needs me, and I guess I have always hoped that somewhere in there she had it in her to love me. How could she do this? … [I]t's in [her] character, she cares about her kids and obviously has no regard for me". In a text message to Patrick on 11 June 2017, the plaintiff said: (emphasis added) The will issue is on hold hopefully until the document is needed. I'm now [caring] for a person for whom I feel great compassion but any hope of love between us is now over.
Mr Kemeny says that, shortly after the brain surgery, the plaintiff said, "I would have been much better off if I had divorced Kathy before all of this". Later, Ms Kemeny noted in a text to Michael, "I knew he was pissed off with me, Sarah and you … Mostly … for appointing y[o]u guys as my legal deciders". In Ms Rutstein's later file note (at [160]), Ms Kemeny informed her that the plaintiff "became angry" that she did the Will with Ms Rutstein.
On 13 June 2017, Ms Kemeny had brain surgery to remove tumours. The plaintiff was not there. The plaintiff was noted as her next of kin and Sarah was noted as an additional contact person. On 16 June 2017, Ms Kemeny was readmitted to Wolper Jewish Hospital; the plaintiff was noted as her next of kin and Sarah was noted as an additional contact person. Sarah says that plaintiff did not visit Ms Kemeny, and that appears to be the case.
On 16 June 2017, Ms Kemeny sent a long email to Patrick updating him on her situation, suggesting that the plaintiff had somewhat overreacted in contacting the children in such dramatic terms (see [109]), noting that Michael and Sarah immediately organised to fly to Australia but were soon returning to their respective shores. During her admission to hospital, Ms Kemeny noted: (emphasis added) Sarah and Michael K of course were in and out of my room just being there, or getting themselves food or getting [the family dog]. [The plaintiff] was mostly not there, attending to his practice and his needs. This was another surprise about him for me.
On 16 June 2017, Patrick texted his father about this. The plaintiff replied that he had had a good talk to Sarah and Michael that day: All's clear between us. Although we didn't talk money post-death, I'm feeling a lot better … Having said that, Kathy behaved appallingly all day, especially to me. I'm glad everyone got an insight into what has been going on.
On 17 June 2017, Ms Kemeny left the hospital for two hours with Sarah. On 18 June 2017, Sarah departed Sydney for the United Kingdom.
After Ms Kemeny recovered from brain surgery, the plaintiff says he spoke to her again about her recent Will and said it was "not right". Apparently, Ms Kemeny agreed and said she would do a new Will "when I get over this hump". This seems unlikely. Either way, it is clear that the fact that Ms Kemeny made a Will which did not accord with the plaintiff's requests, nor his perception as to what she should leave him in her Will, led to a marked deterioration in their relationship.
On 30 June 2017, the plaintiff made a Will. The plaintiff appointed Patrick as executor and left his Estate to Patrick. As to the impetus for making a new Will, the plaintiff said: (emphasis added) I believed at that point that there was no chance of Kathy engaging realistically in any discussion that would be, any appropriate discussion that would implement earlier discussions, and that it was over between us, in terms of those things. That I would, I was effectively, I was effectively realising or appreciating, that - well, not effectively, I did then regrettably, realise that Kathy wouldn't be following through on anything that we'd discussed.
It also appears that, at about this time, the plaintiff changed the nomination as to who would benefit from his superannuation, changing it from Ms Kemeny to the legal personal representative of his Estate. The plaintiff did not mention this in his four affidavits filed in these proceedings, about which he was asked in cross examination: Q. Why don't we read that in the affidavit material? A. Because it wasn't relevant to the point that I was trying to make in my affidavit. Q. If you're trying to make the point that you're doing the right thing by Kathy in your conversations, so that you benefit her by way of a nomination, do you think it might also be relevant to say that before she died, that you revoked the nomination? A. No, I'm perfectly open about it. When it was abundantly clear that she would not be implementing her end of what we had agreed, I had no choice but to change my end of what we agreed. … Q. You'd think the Court would be interested if you made a number of points about benefitting her by way of superannuation nomination, the Court would be interested if you decided to revoke that nomination? A. I was making the point that we had had discussions, that we had agreed certain things, and that I had implemented my end of that agreement. When Kathy broke off that agreement, then I implemented my side of it so as to, if I were to die prematurely, I didn't want anything else going to her kids. Q. Everything else in your case was? A. Essentially my super, and she was dying. So if I died prematurely, he would get everything. So, yeah, absolutely.

[28]

Moving out of the terrace house

On 19 June 2017, the plaintiff was taking Ms Kemeny to a medical appointment. The occupational therapist also briefly met with Ms Kemeny and the plaintiff and planned to meet again in regard to portable showering solutions. "Family now states [patient] may move into alternative accommodation." On 20 June 2017, the plaintiff took Ms Kemeny to a medical appointment. On 20 June 2017, an occupational therapist spoke to Ms Kemeny at length about discharge plans, noting that modifying her home was very difficult and not suitable as a long term situation. The option of moving elsewhere was discussed, "which [patient] can afford in the short term. [Patient] stating the home is hers and she wishes to make ultimate decisions about discharge planning. … [Patient] keen to employ some private carers, joked about having a 'PA' rather than a 'carer'. [Patient] gives a different account of the care provided by her husband prior to admission to Wolper from that which husband had given OT. [Patient] feels she [is] very upfront and direct in her communications whereas husband is less so".
On 20 June 2017, Ms Kemeny spent some time out of the hospital with her husband. They went to Centennial Hotel on Oxford Street. On 21 June 2017, Ms Kemeny had chemotherapy and was discharged into the plaintiff's care. On 22 June 2017, Dr Spielman met with Ms Kemeny and the plaintiff to discuss discharge from the hospital. On 23 June 2017, the occupational therapist spoke with the plaintiff regarding a home visit to see whether Ms Kemeny could be discharged home. The plaintiff was happy with the plan and would attempt to be available at the time of the home visit if possible. On 24 June 2017, the plaintiff visited Ms Kemeny in hospital. On 26 June 2017, the plaintiff took Ms Kemeny out on leave for the hospital for two hours.
On 26 June 2017, Ms Kemeny left the hospital on gate leave with Michael for two hours. On 28 June 2017, the occupational therapist completed a home visit with Ms Kemeny and the plaintiff. The plaintiff said he would arrange some furniture changes around the home. A quote for alterations was requested on 29 June 2017, apparently by the occupational therapist. On 30 June 2017, Ms Kemeny left the hospital on gate leave with Michael for two hours.
On 2 July 2017, Ms Kemeny left the hospital on gate leave with the plaintiff. On 3 July 2017, it was decided instead to discharge Ms Kemeny to her ex-mother-in-law's home in Double Bay whilst the Paddington terrace was modified to accommodate her needs. On 4 July 2017, the plaintiff was discharged from Wolper Jewish Hospital and the plaintiff was informed. Ms Kemeny lived at Mrs Kemeny's house for about a month.
The plaintiff rented an apartment in Neild Avenue, Darlinghurst. (Mr Kemeny says he introduced Ms Kemeny to a real estate agent, who assisted her to find the apartment). Before renting the apartment, the plaintiff spoke to Ms Kemeny and said, "Presumably we will meet all costs equally". Ms Kemeny agreed, and the plaintiff offered to make the payments if Ms Kemeny reimbursed him for her half. Thus it would appear that the $500 a week 'rent' for the Paddington terrace was replaced by splitting the rent on the Darlinghurst apartment equally. The plaintiff has reviewed his bank statements and calculated that he has paid some $65,000 in rent but was only reimbursed by Ms Kemeny for some $18,000, leaving him some $15,000 short. The plaintiff did not press Ms Kemeny for this amount, "as she had significant medical expenses".
On 26 July 2017, a medical report noted that further surgery may be needed to remove a new tumour. The doctor noted that, when Ms Kemeny was last seen in June 2017, she was in a wheelchair, "Thankfully now she has actually made an excellent recovery and she is able to walk independently with just a walking stick. She is able to cope at home with stairs as well". Ms Kemeny was then planning a trip overseas in December 2017 to India for Michael's wedding.
On 2 August 2017, Ms Kemeny received treatment at Norwest Hospital and was discharged into the care of the plaintiff. On 20 August 2017, Sarah returned to Sydney and, on 21 August 2017, Ms Kemeny and the plaintiff saw an oncologist who noted that Ms Kemeny was able to mobilise independently, although still needed a walking stick or walking frame if walking an excessive length of distance. On 23 August 2017, Ms Kemeny was treated at Norwest Hospital and was discharged into the care of the plaintiff. On 30 August 2017, Sarah departed Sydney. On 6 September 2017, Ms Kemeny was treated at Norwest Hospital and was discharged into the care of family. On 20 September 2017 and 4 October 2017, Ms Kemeny was treated at Norwest Hospital and was discharged into the care of the plaintiff.
On 5 October 2017, Ms Kemeny informed Dr Spielman that she had sold the Paddington terrace (for $2.8 million) and moved with the plaintiff into a two bedroom apartment in Darlinghurst. "The move to level access and sell [the terrace] was in line with everyone's concerns, and was the sensible decision all things considered. We are seeing [how] we like apartment living. [The plaintiff] really likes Rushcutters Bay". Ms Kemeny reported that her walking continued to improve and she was getting about with a walking stick, although needed a walker for longer walks as she built stability and endurance. Ms Kemeny was now back to driving, which gave her much greater independence.
On 18 October 2017, Ms Kemeny was discharged from Norwest Hospital into the plaintiff's care. Further treatment was received on 1 November 2017 and 15 November 2017, following which Ms Kemeny was discharged into the plaintiff's care. On 21 November 2017, Ms Kemeny was admitted to hospital for further brain surgery; the discharge plan was for the plaintiff to take her home. The plaintiff was listed as her next of kin and contact person. On 23 November 2017, Ms Kemeny was to be discharged to Wolper Jewish Hospital, to be taken by her husband.
On 26 November 2017, the plaintiff visited Ms Kemeny at Wolper Jewish Hospital. On 29 November 2017, the plaintiff took Ms Kemeny to Norwest Hospital for treatment; they also saw an oncologist. Ms Kemeny was keen to ensure that any treatment was completed before she left to attend Michael's wedding. On 30 November 2017, a discharge planner spoke to Ms Kemeny at Wolper Jewish Hospital, "She thinks she will manage with help from husband". On 1 December 2017, Ms Kemeny was discharged into the plainitff's care. On 13 December 2017, Ms Kemeny received further treatment from Norwest Hospital and was discharged into the care of the plaintiff.
On 16 to 22 December 2017, Ms Kemeny and the plaintiff travelled to Delhi, India for Michael's wedding. Sarah had also flown there from the UK. On 22 December 2017, Ms Kemeny and Sarah arrived back in Sydney. Sarah's husband describes arriving to find the Darlinghurst apartment was filthy and spending Christmas Day cleaning the apartment, "it was clear there was a real lack of domestic responsibility being shown". (The plaintiff said that, after they moved to the Darlinghurst apartment, they had cleaners once a fortnight, and he paid for cleaners by leaving cash on the kitchen bench.) On 27 December 2017, Ms Kemeny received medical treatment and was discharged into the plaintiff's care.
On 4 January 2018, Sarah left Sydney. On 24 January 2018, Ms Kemeny received medical treatment and was discharged into the plaintiff's care. On 29 January 2018, Ms Kemeny and the plaintiff attended a medical appointment with an oncologist. On 6 February 2018, Ms Kemeny was admitted to the Mater Hospital for further surgery. The plaintiff was listed as her next of kin and emergency contact. On 11 February 2018, Ms Kemeny was discharged into the plaintiff's care. On 16 February 2018, they attended an appointment with an oncologist. On 21 February 2018, Ms Kemeny received medical treatment and was discharged into the care of the plaintiff.
On 21 February 2018, Sarah returned to Sydney for two months to work with Opera Australia. Sarah performed in the evenings so her days were free apart from rehearsals and she looked after her mother.

[29]

Potential separation

In late 2017 or early 2018, the plaintiff resolved to leave Ms Kemeny. He told his wife that she treated him worse than a servant and offered to rent a place nearby so that he could still provide some help. Apparently, Ms Kemeny said that he could not leave as he was her husband and had to look after her.
In March 2018, Ms Zimmerlie came to Sydney and stayed with Sarah for a week, during which time she spent a considerable amount of time with Ms Kemeny whilst Sarah was in rehearsals and the plaintiff was at work. Ms Kemeny told Ms Zimmerlie, "I want to leave Michael due to his abuse and lack of support, but I am fearful of his response to me". Ms Kemeny was deeply saddened and also said, "It would be easier for me to stay with Michael at this time. Michael and I are living separate lives anyway even though he is staying in my apartment. Anyway, I am afraid of starting divorce proceedings, as he will be very nasty". At this point, the plaintiff arrived home from work, ignored his wife's greeting, proceeded to the fridge and abused his wife for not preparing food for the dog, "You sit here on your fucking arse all day. You have one fucking job and you can't even do that. Did you walk the dog today or did you just let her shit and piss all over the carpet." The plaintiff denies he behaved this way.
Mr Kemeny found himself in the role of confidante to both Ms Kemeny and the plaintiff about their relationship. He often defended the plaintiff to Ms Kemeny saying, "It's better if you stay together. You've got enough going on in your life without adding to it."
On 7 March 2018 and 21 March 2018, Ms Kemeny received medical treatment and was discharged home with a friend. On 28 March 2018, the plaintiff went overseas for two weeks without Ms Kemeny. On 4 April 2018, Sarah and her mother had an argument and Sarah packed her bags and left. Sarah said it was about her use of anti-depressants. On 16 April 2018, Ms Kemeny received medical treatment and was discharged into the plaintiff's care. Scans came back completely clear. On 24 April 2018, Sarah left Sydney.
On 2 May 2018, Ms Kemeny received medical treatment and was discharged into the plaintiff's care. On 18 May 2018, Ms Kemeny fell over and tore a ligament. She complained to Mr Kemeny about the plaintiff's response to her injury, "Michael has no sympathy for my suffering and says 'get over it'". Mr Kemeny says Ms Kemeny often complained to him saying, "Michael doesn't care for me and doesn't care about me". On 30 May 2018, Ms Kemeny received medical treatment and was discharged into the plaintiff's care.

[30]

Buying the Darlinghurst apartment

In June 2018, Ms Kemeny purchased the Darlinghurst apartment for $2.43 million, in the building in which they were already living. The purchase left Ms Kemeny with just over $200,000 in cash. Mr Kemeny says he discouraged Ms Kemeny from buying the apartment and suggested she rent instead, so that she had access to the proceeds of sale of the Paddington terrace to pay for carers and cleaners. Ms Kemeny told him that the plaintiff was pushing her to buy. According to Sarah, her mother told her that the plaintiff was pressuring her to put the property in both names and wanted to handle the legals for the sale, but Ms Kemeny did not agree and employed her own lawyers. The plaintiff denies this.
At about this time, the plaintiff made a handwritten note entitled "Kathy dies [survived by] Michael Scenario 1". Through a series of diagrams, it appears to have been envisaged that Ms Kemeny would leave her superannuation to the plaintiff together with 50% of the Darlinghurst apartment together with its contents and the car, with the remaining half of the Darlinghurst apartment to be left equally to Sarah and Michael together with the residue of the estate. The plaintiff reluctantly agreed that, at the time he prepared this document, this reflected the provision that he thought was proper.
On 13 June 2018, Ms Kemeny received medical treatment and was discharged from hospital to the plaintiff's care. On 25 June 2018, Dr Spielman visited Ms Kemeny at home, having received a call from the plaintiff that Ms Kemeny could not move and he was very worried. Dr Spielman observed that Ms Kemeny was able to walk with her walker but was noticeably weaker. After discussion with Ms Kemeny and the plaintiff, Dr Spielman decided to have Ms Kemeny admitted to Wolper Jewish Hospital for respite care. On 27 June 2018, Ms Kemeny was admitted to Wolper Jewish Hospital. The plaintiff was noted as her next of kin. Progress notes recorded on 29 June 2018, "Visited by 'husband?' loud arguing/bickering on shift". A social worker's visit on 2 July 2018 recorded Ms Kemeny expressing concern over her relationship with her husband. On 3 July 2018, Ms Kemeny went out on gate leave for dinner with her husband. On 5 July 2018, Dr Spielman spoke to the plaintiff, "who is under pressure and finding it difficult to support her".
On 6 July 2018, the plaintiff took Ms Kemeny to a medical appointment. On 8 July 2018, Ms Kemeny went on gate leave with her husband. On 9 July 2018, the plaintiff took Ms Kemeny to a medical appointment; the oncologist noted a marked decline in Ms Kemeny's mobility and discussed the significance of these findings with the plaintiff and Ms Kemeny. Discharge transfer documents categorised Ms Kemeny's status as capable of only limited self-care, confined to a bed or chair for more than 50% of waking hours. An occupational therapy assessment conducted on 11 July 2018 noted that Ms Kemeny had food delivered and had help with cleaning whilst her husband did the shopping.
On 14 July 2018, Ms Kemeny went on gate leave from the hospital with the plaintiff. Ms Kemeny sent a text message to Mr Kemeny complaining that the plaintiff was yelling at her, telling her she was "revelling" in this and he was "over it". On 15 July 2018, Ms Kemeny went on gate leave from the hospital with her husband and reported to Mr Kemeny that they had had a nice dinner. On 16 July 2018, Ms Kemeny was discharged from hospital, likely into the plaintiff's care. On 19 July 2018, Dr Spielman saw the plaintiff, who was on the way to a medical appointment, and discussed options for further support at home. The plaintiff and Ms Kemeny saw a specialist that day who reported, "she is back home where she is barely coping".
On 28 July 2018, Ms Kemeny was admitted to hospital for two weeks. Medical notes record that Ms Kemeny was living in her own home with the plaintiff, who helped with activities of daily living. Ms Kemeny went to the bathroom with the assistance of her husband. The plaintiff sent a text message to Patrick advising that Ms Kemeny was potentially seriously ill and asked for Michael and Sarah's contact details, "This has come as a real shock". The plaintiff also said he was having fainting spells which he thought stemmed from being dehydrated.
On 29 July 2018, Ms Kemeny had emergency surgery. On 30 July 2018, removalists moved the plaintiff and Ms Kemeny into the Darlinghurst apartment. Ms Kemeny had arranged a 'full service' move. On 1 August 2018, an occupational therapy assessment noted that Ms Kemeny could move about with the use of a walker indoors and used a wheelchair for longer distances. Ms Kemeny was independent with personal care whilst the plaintiff completed all domestic and community tasks, "Husb[and] works long hours, [patient] can be home alone for long periods". The plaintiff was then starting a new job with Bartier Perry.
In July 2018, Sarah and her husband moved from London to New York for her husband's work. Sarah also tried to further her operatic career in New York. On 6 August 2018, Sarah returned to Sydney to compete in a singing competition and departed on 9 August 2018.
On 12 August 2018, Ms Kemeny was discharged from Prince of Wales Hospital to Wolper Jewish Hospital, into whose care is unclear. An occupational therapy note made on 15 August 2018 noted that Ms Kemeny lived with her husband "who works long hours". Ms Kemeny did little cooking and purchased pre-prepared meals. They had a cleaner one day a week whilst the plaintiff assisted with laundry and changing bed linen. She did shopping with her husband.
On 19 August 2018, Ms Kemeny went with her husband to see an oncologist. On 20 and 26 August 2018, Ms Kemeny went on gate leave with her husband for dinner. On 28 August 2018, Ms Kemeny went on gate leave with her husband in the afternoon.

[31]

Professional carers

On 4 September 2018, Ms Kemeny was discharged from hospital to the plaintiff's care. Ms Kemeny was then following up with private agencies to arrange daily assistance at home as well as transport to day rehabilitation. The discharge summary noted that the plaintiff "works full time" and Ms Kemeny felt "nervous" about discharge but was arranging daily private help and transport to day rehabilitation. It is apparent from the medical records that, as Ms Kemeny's disease progressed, she became increasingly reluctant to be discharged from Wolper Jewish Hospital to her home as her confidence in being able to move about independently, including to toilet, was faltering. It appears that, on occasion, her discharge from the hospital was delayed for several days until discharge planners, occupational therapists and social workers had made arrangements, or supported Ms Kemeny in making arrangements, to have alterations made to the home or to arrange home carers.
On 10 September 2018, professional carers were engaged for Ms Kemeny; carers continued to care for Ms Kemeny until she passed away. Ms Kemeny paid for the carers. According to the plaintiff, he wanted carers at a much earlier stage but, whenever he raised the subject, Ms Kemeny said she did not want strangers around. There is some corroboration for this account in the evidence of the plaintiff's friends, who said that the plaintiff also told them this and, to a lesser extent, Ms Kemeny said something similar herself. Sarah knew that Ms Kemeny resisted carers, not because she did not want them in the house but because "she didn't want to pay for it". Given Ms Kemeny's focus on conserving her financial resources, combined with the hospital note, "Patient keen to employ some private carers", I think it more likely that Ms Kemeny's reluctance to engage carers largely stemmed from financial considerations. Either way, it does appear that carers should have been engaged earlier than they were. The lack of professional carers would have placed a greater burden on the plaintiff, which he reported at the time.
On 17 September 2018, Ms Kemeny was reviewed by her oncologist who dressed a shoulder wound and supplied a cream to the plaintiff to be used in treating the shoulder. In about October 2018, the plaintiff told his wife that she needed more care as he could not be there all the time and still had to work; his wife declined. On 16 October 2018, Sarah returned to Sydney, departing on 22 October 2018. On 22 October 2018, Patrick texted his father asking how he was, and the plaintiff replied, "Scan day Monday. That pretty much sums it up." The plaintiff was at the yacht club with Ms Kemeny after sailing.
On 29 October 2018, Ms Kemeny's oncologist reported to Dr Spielman that Ms Kemeny's cancer continued to progress with no further treatment options available. The oncologist agreed with the plaintiff's suggestion that a short palliative care admission would be helpful but considered that Ms Kemeny's prognosis was likely measured in weeks to months with a risk of sudden deterioration. The oncologist suggested that Ms Kemeny's children should return from overseas. The plaintiff reported to his son, "This inevitable time has finally come. Should you come back now too? Not so critical. I'm okay and frankly, Kathy only has eyes for her kids. I will need you at some point".
On 31 October 2018, Ms Kemeny was admitted to Wolper Jewish Hospital. The plaintiff was listed as her next of kin. Sarah returned to Sydney for two months. Ms Kemeny went on gate leave from the hospital on a daily basis with either the plaintiff, Sarah or Patrick. Patrick said that, on his trip to Sydney at this time, he suggested to Ms Kemeny that he was thinking of taking the plaintiff away for a few days after Christmas for a break, as he was exhausted. The following exchange occurred: Kathy: What's he got to be exhausted about? Patrick: Because he's working, and caring for you. Kathy: He's not my carer. Patrick: Yes he is. Kathy: He is not my carer. Patrick: What do you mean? He's caring for you, he's your carer. Kathy: He's my husband, he's supposed to do that, he's not my carer.

[32]

Ms Kemeny makes her last Will

Hospital notes record that, on 1 November 2018, Ms Kemeny "had an argument [with] her husband over the phone". On 5 November 2018, Ms Kemeny had an appointment with Ms Rutstein, solicitor. Ms Kemeny arrived with Sarah, who sat outside whilst Ms Kemeny spoke with Ms Rutstein. It is apparent from Ms Rutstein's file note that Ms Kemeny gave detailed instructions on the history of her financial arrangements with the plaintiff over their married life. According to the note, the plaintiff was continuing to pay for groceries and occasionally gave Ms Kemeny money to pay half of rates, electricity, gas and internet. Ms Kemeny said she kept a record. The plaintiff had been "pestering her to do 'our estate plan'. She told him that she has done hers." The conference took one and a half hours. According to Ms Rutstein, Ms Kemeny was very concerned to ensure it was clear that the plaintiff had not been her carer. The file note concludes: Michael may say that he has cared for me [and] looked after me which he has not.
Ms Kemeny was also concerned to ensure that the bulk of her Estate went to her children and, if the plaintiff made a claim on her Estate, then he should not succeed. Ms Rutstein suggested that Ms Kemeny should allow the plaintiff to live in the Darlinghurst property for six months rather than the three months specified in her current Will, and a further clause be included explaining why he was excluded from her residuary estate. Ms Kemeny agreed to the following clause being added: (emphasis added) EXCLUSION IN DISPOSING of my Estate in manner aforesaid I EXPRESSLY ACKNOWLEDGE that I have been advised and am well aware of the provisions of the Succession Act, 2006 and in the full knowledge that I have intentionally excluded by husband MICHAEL JOHN SCHNEIDER from my residuary estate as he has not contributed financially to the purchase of my properties at Darlinghurst, Surry Hills or Paddington and did generally not pay any rates, taxes, levies and other outgoings for the Paddington property which we both lived in from approximately 2005 to 2017. We have also kept our finances separate by mutual agreement.
Ms Kemeny also expressed concern that her children may face a claim by the plaintiff on her estate and thus she decided to appoint Mr Kemeny as executor instead of her children. The Will was so executed. Mr Kemeny was not aware of the Will and did not know that he had been appointed as executor.
Ms Kemeny spoke to Ms Johnstone about her new Will. Ms Johnstone said, "That's the worst thing I've ever heard. What about Michael and everything he has done for you". Ms Kemeny replied, "Michael's done nothing". Ms Johnstone appears to have spent some time pleading the plaintiff's cause to Ms Kemeny.
An occupational therapy assessment conducted on 8 November 2018 noted that Ms Kemeny lived with her husband who "Works long hours". From 5 November 2018 on, Sarah took her mother on gate leave every day. On 14 November 2018, Ms Kemeny was discharged from Wolper Jewish Hospital, likely into the plaintiff's care. Sarah also spent time with her mother, taking her to the zoo and to local restaurants. On 19 December 2018, the GP's notes recorded that Sarah had been attending to her mother's dressing and doing a great job.

[33]

Tempers fray

On 5 December 2018, Patrick asked Sarah to look after Ms Kemeny for a week after Christmas so Patrick could take his father somewhere. Sarah replied that she was not happy to do this. Sarah explained: Q. Why didn't you look after your mother at that time? A. Because at that - by that point mum and Michael were having a big argument about getting care, carers, paid carers in and I was encouraging mum to get carers and as was my brother and I didn't want to be used as a pawn in their argument. … I wanted mum to have sustainable care.
Dr Spielman saw Ms Kemeny on 10 December 2018 and noted that that plaintiff "wants to go away. She needs someone to sleep over. Discussed options. I will call Michael to discuss." Dr Spielman also noted that Sarah was here until mid-January.
On 14 December 2018, a series of Whatsapp messages ensued between Ms Kemeny and Michael. (emphasis added) Ms Kemeny: Michael's constantly telling me he's not my carer and to do it myself or get "your person" to do it, and "I will do what I want" (sailing, kayaking, cycling, going early or having a beer and coming home late, etc) and, "I'm not doing it because you ask me/say". He won't cook or clean the kitchen or often doesn't even clean up after [the dog] or bath her. He screams at [the dog] or me or [the dog] and then me. … For twelve years or more I did everything, everything. So was I his carer? Now Patrick tells me they're taking Michael away straight after xmas because carers need a holiday. … Now I'm worried he's going to push this line when I die. I DO NOT want this lie. Not only is he an outright liar, he actually means when he says, I'm not your carer I don't care about you. … Michael: he should move out and live separately. … Ms Kemeny: Then I really will be on my own. … Michael: Instead of relying on someone useless u will be forced to organize urself properly and get [people] to help. [A] bad employee is worse than no employee. [J]ust get someone in who does the job instead of holding on to someone who mostly does nothing, but whenever they do something makes a whole show of it. … Ms Kemeny: … You, me and Sarah are fully aware he's not my carer. … I'm not clinging to him. I just don't want his lies propagated in the world at large. I don't rely hardly at all on his help. Very minimal.
The plaintiff was unwell for several days after Christmas 2018. Mr Kemeny says that, on Boxing Day, Ms Kemeny rang him and asked if he could come down and get her something out of the fridge as "Michael is being a total shit and won't go to the fridge for me. … He is sitting and watching the Sydney to Hobart race on TV and won't do it". Ms Kemeny told Sarah, "I haven't eaten all day and he's refused to get me anything from the fridge even though he went to the fridge to get food to feed the dog". The plaintiff says he told his wife he would get what she wanted in a minute but just wanted to watch the boats leave the heads, following which he got Ms Kemeny what she wanted.
On 28 December 2018, Michael remonstrated to the plaintiff about the request for Sarah to care for Ms Kemeny while he went on holidays; the plaintiff said he thought that Sarah and Michael would "step up to the plate". Michael also asked the plaintiff whether he had been getting in the way of Ms Kemeny getting the care she needed, and the plaintiff said the reasons were financial. On the plaintiff's return home following this exchange, according to Ms Kemeny, the plaintiff "threw a huge anger tantrum saying I hate you and your family, you're all so ungrateful". Ms Kemeny also sent a text message to Sarah saying the plaintiff was "throwing stuff around saying he really wants to leave me."
Michael also remonstrated to his mother that Sarah was sacrificing her singing career to take care of her, "It is not right that she has put her life on hold to take care of you during the day whilst [the plaintiff] is out at work. This is your husband's job, and it is wrong that the entire burden has been put on Sarah's shoulders".
According to the plaintiff, Ms Kemeny said that he would have to arrange carers for whilst he was away as he should not be going but should be staying with her. Sarah says her mother was very upset that the plaintiff planned to go away without her on what she had been told might be her last New Year's Eve and they argued. The plaintiff arranged for a friend who was a registered nurse, Ms Clarke, to care for his wife while he was away and paid for this care (for three to four nights). Ms Clarke's observations of Ms Kemeny at the time indicate that, by then, she required a high level of care. Whilst Ms Clarke cared for Ms Kemeny overnight, Sarah cared for her during the day.

[34]

Children increase care

From Michael's perspective, one of the reasons why his father, Sarah and himself had insisted on Ms Kemeny selling the Paddington terrace was to have cash available for a carer. On 29 December 2018, Michael wrote to the home care service, copied to Sarah, to arrange home care for Ms Kemeny going forward, including sleep overs whilst the plaintiff was on a trip with Patrick. Between two and four hours' care was requested each week day, with a visit from a nurse on the weekend. Unless someone comes in, she will literally not be able to move from the couch the entire day. She will not be able to even get water or food from the fridge. For example, on one recent incident, on Boxing Day, [the plaintiff] had an upset stomach and was unable to care for mum. She was unable to get food from the fridge all day, and sent us multiple messages and calls, clearly in a highly distressed state, complaining that she could not get food or water. You must understand how deeply distressing this is for us. We feel she is not being fully honest about her condition. … The most important thing for us is that she received basic essential care (like food and water) each and every single day. This is not currently the case. … Sarah has the legal power of attorney. The situation may be evolving into one w[h]ere more decisive action is needed to make sure basic care is provided, regardless of what front our mum would like to present to the world.
Also on 29 December 2018, Ms Kemeny sent an email to Ms Rutstein requesting various amendments to her Will, including that her children have a say in the care of the family dog before any decision was made should she become unwell or require veterinary care. "Recent family events have raised by concerns regarding these particular issues which has led me to review the terms of my Will". Ms Rutstein made an appointment to see Ms Kemeny, which never eventuated.
On 8 January 2019, Sarah departed Sydney to return to New York for her husband's birthday, having agreed with her mother that she would be back in six weeks' time. Sarah's husband gave notice that he needed to move back to Sydney in August 2019. On 9 January 2019, Dr Spielman visited Ms Kemeny at home noting she "has had difficult time with family stress - feels Michael angry and resents care and kids don't quite understand."

[35]

The end of the journey

Later in January 2019, Patrick took Ms Kemeny to the cinema, as did the plaintiff. On 29 January 2019, a palliative care service visited Ms Kemeny at home and reported that Ms Kemeny had private carers Monday to Friday to assist with domestic chores and meal preparation. Ms Kemeny sometimes required assistance with dressing and showering and, although independent with transfer, often required assistance transitioning from lying to sitting in bed. Ms Kemeny was able to get around using a walker, wheelchair and electric scooter. She lived with her husband and a 16 year old dog.
At about this time, the plaintiff was up during the night cleaning his wife after Ms Kemeny had soiled herself. As the plaintiff describes it, "I too was naked as it was a hot night. We shared a rare smile. This was a rare moment of connection …" The plaintiff thought it timely to again raise the question of his wife's Will. He asked his wife to let him help her "with a better way of handling your Will" and Ms Kemeny said "No, don't you dare go there".
On 11 February 2019, Dr Spielman visited Ms Kemeny and the plaintiff at home. Ms Kemeny had lost weight and mobility and had been incontinent. Dr Spielman arranged for increased home care, "also to explore counsellor … to try help with obvious tension between [K]athy and [M]ichael".
On 17 February 2019, Ms Kemeny called Dr Spielman, who visited her at home. Ms Kemeny had obviously deteriorated and Dr Spielman contacted the plaintiff to call her, which he did. Dr Spielman received another call from family later that evening, "long discussion with Sarah and Michael on the phone, [the plaintiff] and Gabor at home". There was conflict as to whether Ms Kemeny should stay at home or go to Wolper Jewish Hospital and it was decided that, if Ms Kemeny was still alive in the morning, then she would be transferred to the hospital. The hospital notes record that Ms Kemeny's children were insistent that she be transferred to a hospital, "hoping that she would last a little longer". On 18 February 2019, Ms Kemeny was transferred to Wolper Jewish Hospital. As Ms Kemeny passed away, the plaintiff was present and Sarah was there via videolink.

[37]

The proceedings

On 27 May 2019, the plaintiff's solicitor sought Mr Kemeny's consent to remaining in the Darlinghurst apartment rent free until his proposed family provision claim had been resolved or determined by the Court. Mr Kemeny did not agree, but noted that the Surry Hills tenant would be vacating in early November 2019 and agreed to the plaintiff continuing to reside in the Darlinghurst apartment rent-free until then.
On 25 June 2019, probate of Ms Kemeny's last Will was granted to Mr Kemeny. The Estate comprised some $3.5 million of assets. On 10 July 2019, the plaintiff's solicitors advised that the plaintiff would be making a claim on Ms Kemeny's estate and advised that the plaintiff considered the Surry Hills apartment to be unsuitable. There was no off-street parking and one of the previous tenants had been assaulted outside the apartment building, "Without secure parking, this would be an ongoing possibility if our client moved to that unit". Further, there was said to be no privacy given the apartment design; "The kitchen area is tiny … not designed for cooking for larger groups, which our client enjoys" (Mr Kemeny says he has never known the plaintiff to host any dinner parties, other than when Ms Kemeny did so). The unit was open plan with only one bedroom whilst the plaintiff, "would like to be able to offer a bed to friends and family visiting from out of Sydney". There was also "very little space for our client to entertain friends and his extended family". Further: There is no room for our client to enjoy his recently acquired hobby of painting. At present, he paints on the large covered balcony of the Nield Avenue unit, so that the paint fumes do not infiltrate the living space. There is no such external space available at the Surry Hills property. Mr Kemeny has never known the plaintiff to paint, nor has Sarah.
In addition, the plaintiff said he wished to remain in the Darlinghurst area for the following reasons: 1. Over the last two years, he has built up a 'stop and have a chat' relationship with quite a few other people who work and live in the immediate vicinity. He considers this to be important for his health and wellbeing. 2. His boat club is within walking distance of the Neild Avenue property. Especially in summer, the club plays a big part in my social life. If it were not so handy, he would not have the impromptu meetings and chats at the club so often that are a big part of his life. 3. He can walk to work, which allows him to include exercise as part of his daily routine. 4. A good friend of his, who is also a lawyer, lives about 5 minute's walk away. He and this particular friend go for bike rides of about 30 or so kilometres at least once a week. From about 14 months ago, they also began kayaking out of Rushcutters Bay, which they tend to do at least once and sometimes twice a week. After these exercise sessions they almost always go and have a coffee and a good chat. Our client considers that this regular strenuous exercise has been extremely important for his health and overall wellbeing. He is concerned that if he moved out of the immediate area, keeping up the contact and the exercise would be difficult and would wither over time. (Mr Kemeny says that the plaintiff has been involved in yachting activities since when he lived in Kirribilli; whilst the Darlinghurst property is convenient, the plaintiff was able to attend sailing activities before he lived there).
Mr Kemeny replied, noting that the Darlinghurst apartment represented some 70% of the Estate; a Court would likely require the property to be sold regardless of the result of any family provision claim, as it represented too great a proportion of the Estate to be tied up in favour of the plaintiff at the expense of the major beneficiaries. Mr Kemeny requested that the plaintiff accept the inevitability of the sale and vacate the property. Mr Kemeny noted the plaintiff's affection for the property was somewhat moderated by the knowledge that he had only moved there nine months before Ms Kemeny died, where the re-location was due to Ms Kemeny's inability to navigate the stairs in the Paddington terrace rather than for lifestyle reasons. Noting that the plaintiff considered the Surry Hills apartment unsuitable, Mr Kemeny offered to pay $30,000 to the plaintiff to assist him to move to alternate suitable premises. There was no reply.
On 18 August 2019, the plaintiff's rent-free occupation of the Darlinghurst apartment came to an end. On 20 August 2019, Mr Kemeny filed a summons seeking possession of the property. On 13 September 2019, the plaintiff commenced these proceedings.

[38]

The plaintiff leaves Sydney and retires

In about May 2019, the plaintiff formed a relationship with Ms Romuld. In March 2020, Ms Romuld offered the plaintiff to rent the lower level of a holiday house which she owns with other members of her family in Shoal Bay. Ms Romuld uses the upper level of the property for holidays. The plaintiff then considered himself in a high risk group for the COVID-19 pandemic as he felt that the stress of caring for Ms Kemeny had made him physically vulnerable (noting that Ms Kemeny had passed away 13 months earlier). The plaintiff considered that Shoal Bay would be a safer place to be than Darlinghurst during the COVID-19 outbreak. In April 2020, the plaintiff began living in Shoal Bay. The plaintiff prepared a lease agreement for six months. Ms Romuld also visited Shoal Bay from time to time.
On 21 May 2020, as a consequence of the COVID-19 pandemic, Bartier Perry required the plaintiff to reduce his working days to two days per week and to bring forward his retirement to 30 June 2020. The plaintiff returned to Sydney occasionally to check on his yacht and pick up or return files to Bartier Perry and, after his employment was terminated, to clear out his office. If the plaintiff and Ms Romuld were in Sydney at the same time, Ms Romuld did not spend much time at the Darlinghurst apartment, "which has been more of a work space for Michael", as she did not like it, and preferred her own space.
It would thus appear that the plaintiff was no longer living at the Darlinghurst apartment from April to September 2020. The plaintiff's bank statement for August and September 2020 indicates that he did not come to Sydney but moved in the Shoal Bay area and travelled around the mid-North Coast. The plaintiff returned to live in the Darlinghurst apartment on 20 September 2020. This hearing took place in November 2020.
Now that the pandemic was becoming less of a concern, the plaintiff was keen to resume sailing and to attend a meditation group. The plaintiff considered it important to have his own accommodation in Darlinghurst so he could continue to strengthen the friendships he has there and be close to his siblings, who live in Sydney, and their families. The plaintiff needs accommodation large enough so that Patrick, his wife and baby can stay with him when they visit from London. The plaintiff believes he needs $1.5 million, at the very least, to purchase a two bedroom, two bathroom apartment with one car space, preferably in Darlinghurst, as that is where he has been living (albeit not recently) and close to his sailing club. He wants to be in a building with a secure car space, a lift and a second bedroom and bathroom for guests. The plaintiff agreed that he may only potentially have guests staying a couple of weeks a year and, although this was not a necessity, "it's a beautiful thing to do" and something which he really enjoys. It was also really good to be able to offer a parking space to visitors.
More recently the plaintiff and Ms Romuld have been discussing jointly purchasing a motor home to take a trip around Australia. It is not envisaged that they will do the whole trip together but rather that Ms Romuld will join him for particular legs of the trip. It is proposed to sell the motor home once the trip is completed.

[39]

SHOULD PROVISION BE MADE?

The plaintiff accepted that his superannuation and recent inheritance from his mother's estate met his need for income and a fund for contingencies. As ultimately put, the plaintiff sought between $1.5 million and $1.6 million to fund appropriate accommodation, stamp duty, legal expenses and removalists. The plaintiff also sought to be relieved of any occupation fee for the Darlinghurst apartment. Whilst accepting that a spouse may not have legal primacy (Bladwell v Davis), a spouse may be entitled to primacy on the facts, and this was said to be such a case. As the duration of the marriage progressed beyond ten years, Ms Kemeny's assessment of what was adequate provision was said to be unrealistic.
In cross examination, the plaintiff ultimately accepted that he could not reasonably expect to receive the Darlinghurst apartment but said he should be "able to walk away with what I would have had had I not re‑met Kathy which was an apartment, a two‑bedder apartment with parking and in you know a good location as I had at Kirribilli and with appropriate superannuation to live on and funds for the unknown if you like". However, when the plaintiff began his relationship with Ms Kemeny, he put the proceeds of sale of the Kirribilli apartment into his superannuation, which he still has. To have both the net proceeds of sale of the Kirribilli apartment and an unencumbered apartment would be a significant improvement on his pre-relationship position.
The executor accepted that Ms Kemeny had a moral obligation to make proper and adequate provision for her husband, the issue being simply whether that obligation was discharged in the circumstances. Whilst accepting that the plaintiff was in relative need, the executor noted that Ms Kemeny's children were also in relative need. The defendant submitted that bearing in mind the relationship between the plaintiff and Ms Kemeny, and that they had agreed to keep their finances separate and leave their assets to their children, the provision made under the Will was adequate and proper provision taking into account the needs of the beneficiaries. Otherwise, a lump sum payment should be made but there was no obligation on Ms Kemeny to fund unencumbered accommodation for the plaintiff.
Noting that attention remains centrally focused on section 59 of the Succession Act (Verzar v Verzar [2012] NSWSC 1380 at [125]), of the matters listed in section 60(2) of the Succession Act which the Court may consider on an application such as this, it appears that the following considerations are particularly relevant here.

[40]

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

The plaintiff had been married to Ms Kemeny for 14 years when she died, of which Ms Kemeny's disease occupied nine years at varying degrees of intensity. There can be no doubt that the disease put a strain on their marriage: see [70]. They attended marriage counselling.
Even without the disease, they had their troubles. Anna Schneider said the plaintiff and Ms Kemeny "seemed to be quite happy at first", but it appears this did not last. According to Mr Kemeny, "To my observation, Kathy and the plaintiff's relationship soured after the first few years and finally became very difficult in the last few years. Kathy often said to me, "Michael is very passive - aggressive". The plaintiff also complained to Mr Kemeny at various times, saying "Kathy's only interested in her kids", to which Mr Kemeny replied, "Just like you. You're devoted to Patrick."
Patrick returned to Australia for two weeks in March 2014 and noticed there was tension between his father and Ms Kemeny and that misunderstandings between them developed into arguments. On subsequent visits to Australia, Patrick observed that Ms Kemeny's treatment of the plaintiff had become more aggressive. Over the final months and years of Ms Kemeny's life, Sarah's husband understood that the plaintiff and Ms Kemeny could no longer stand each other and their relationship had soured into something quite toxic.
Certainly, having first read the contemporaneous documents in their entirety before returning to the plaintiff's first affidavit in these proceedings, the affidavit made difficult reading. The affidavit contains a series of disrespectful remarks about Ms Kemeny which indicate how the plaintiff felt about his wife, how he interacted with her and, likely, how she perceived he felt about her. Against this, the plaintiff and his wife continued to live together until she died, continuing to go out to eat and drink and no doubt try to make the best of it. Whilst the disease put huge strain on their marriage, it also contributed to its longevity as, if Ms Kemeny had not been terminally ill, the couple would likely have separated earlier.

[43]

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant … or of any beneficiary of the deceased person's estate

When these proceedings commenced, the plaintiff was earning $13,000 a month (or $8,500 net) from Bartier Perry and hoped to retire early in 2020. "I had looked forward to a burst of new energy when Kathy died. This has not eventuated. I am finding it increasingly difficult to get through the work days". (Mr Kemeny notes that the plaintiff had never indicated that he sought to retire at 65, nor did Ms Kemeny mention it either). As it turned out, the plaintiff retired on 30 June 2020 and began to draw upon his superannuation of some $890,000.
The plaintiff has shares in two companies which aim to provide professionals with an online platform for producing estate plans. He has invested some $200,000 into these businesses over the years. The plaintiff considers these businesses have limited commercial value. "Due to the issues I experienced in caring for Kathy, I have not had any significant time to devote to the development of this business".
In October 2020, the plaintiff's mother passed away. The plaintiff is the executor of her Will and expects to inherit $420,000. Taking this inheritance into account, the plaintiff's net assets are some $1.46 million. There was no evidence adduced by the plaintiff that these resources were insufficient for his proper maintenance in his retirement: Megerditchian v Khatchadourian [2019] NSWSC 1870 at [152] per Parker J.
The plaintiff continues to hold a practising certificate. He is fit and well. His decision to retire rather than seek another job is his choice. He would be able, if he chose, to obtain further employment to supplement his financial resources. He also now has time, if he wishes, to development his online platform for producing estate plans.
Michael earns some USD$100,000 a year and has modest net assets of some US$266,478. In February 2020, Michael and his wife had their first child and would like to buy their first home in a good school district in the Maddison area, which costs between AUD$1 million and $1.5 million. They plan to have a second child soon.
In August 2019, Sarah and her husband returned to Australia. Sarah got a job at David Jones as a Sales Professional in the Womenswear Department at Miranda, paid $26.79 an hour. Sarah's husband works full time for a government bank and has net income of $77,579. Sarah and her husband live at her parents-in-law's home (who have moved to a retirement village). Sarah and her husband pay rent together with the outgoings and expenses of the home. Sarah and her husband's assets are modest comprising some $149,000 together with superannuation (mostly her husband's) of some $289,000. Their weekly living expenses are some $1,600.
In February 2020, Sarah had her first baby. As matters have unfolded, Sarah no longer sees herself as becoming a soloist but may be able to become a full-time chorister with Opera Australia, earning between $60,000 and $80,000 a year. However, Sarah may need to retrain completely in order to earn an income.

[49]

Medical appointments

As to non-financial contributions, the plaintiff says that he accompanied Ms Kemeny "to just about every doctor's appointment, treatment, scan or blood collection throughout the ten year period she battled cancer". The plaintiff estimated the monetary value of the time which he spent taking Ms Kemeny to medical appointments, based on the hourly rate charged by home care.
Sarah was insistent that, when she was living with her mother from 2009 to 2013, she took her mother to most medical appointments and the plaintiff came to some. After moving to London, Sarah was in daily contact with her mother and, if something happened with her mother's health, Sarah flew back to Sydney. Sarah said she was her mother's carer throughout the entire time since her mother's cancer diagnosis whilst the plaintiff never stopped working, right up until her mother's final days.
Mr Kemeny observed that, as far as he was aware, Sarah was the one who mainly took Ms Kemeny to medical appointments whilst the plaintiff generally continued in his full time work. After Sarah went to live overseas, the plaintiff was more involved in taking Ms Kemeny to doctors' appointments, except when Sarah was visiting. During the day, Mr Kemeny regularly took Ms Kemeny to lunches and walks, especially down to the yacht club in Rushcutters Bay, either with her stick, walker or later by wheelchair. He encouraged Ms Kemeny to remain positive and to walk unassisted as best she could.
The answer is that the plaintiff and Sarah both contributed significantly to accompanying Ms Kemeny to medical appointments and hospital visits. Overall, the pattern emerging from the medical records is that, when Sarah was in Sydney, Sarah largely accompanied her mother to such appointments, whilst when Sarah was not in Sydney, the plaintiff did so. Before Sarah moved to the United Kingdom, Sarah attended the bulk of her mother's hospital appointments, rather than the plaintiff. After Sarah moved overseas, necessarily the burden shifted back to the plaintiff, albeit Sarah returned frequently to Australia to visit her mother and as her mother's condition deteriorated from time to time. The plaintiff accompanied Ms Kemeny to a significant portion of appointments and hospital stays; he did more towards the end of Ms Kemeny's life than the Kemeny family probably appreciated.
Sarah's affidavits contain a detailed and knowledgeable description of her mother's condition and treatment, suggesting that Sarah was intimately involved with her mother's medical care. The level of generality with which the plaintiff has described Ms Kemeny's medical journey, as compared with Sarah's complete command of the subject, bespeaks that the plaintiff was certainly involved in and had a knowledge of what was going on whilst Sarah was the main advocate, participant and supporter for her mother in this journey. Whilst Sarah was not in Sydney every day, Sarah was here when it mattered and, when Sarah was not here, she was in frequent contact with her mother.

[50]

Home care

The plaintiff says that, apart from the home care paid for by Ms Kemeny, he provided the balance of care required by his wife. On occasion, he would race home from work to attend to her if she slipped off her chair while no one was with her. During the night, Ms Kemeny regularly needed him to help her move so she could be comfortable. He would often have to change her clothes and bedding. The plaintiff says he was putting Ms Kemeny to bed one night and said "Kathy, I can't get you to the toilet. I can't lift you. I can't get you downstairs". Ms Kemeny apparently said, "It doesn't matter. I can do it in the bed". (The words attributed to Ms Kemeny are unlikely. It is apparent from the medical records that Ms Kemeny suffered incontinence from time to time, usually brought about by medications or as a consequence of medical treatment and associated side-effects. Ms Kemeny was apparently keen to ensure that such incontinence resolved before she was discharged home and expressed embarrassment at her husband having to deal with any incontinence at home.) Occasionally, his wife thanked him and "These rare expressions of gratitude … kept me going".
The plaintiff says that Ms Kemeny was "an incontinent paraplegic" for the last six months of her life. Whilst this statement was made before the plaintiff presumably had access to Ms Kemeny's medical records, it was an overstatement according to those records. (Sarah also said that she last saw her mother four weeks before her death, at which time Ms Kemeny got herself into and out of the car, on and off the toilet at home and at restaurants, and into and out of various chairs and booths at restaurants. At home, Ms Kemeny walked herself to the bathroom - at Chiswick Restaurant in Woollahra, Billy Kwong Restaurant in Potts Point, Marta's Restaurant at Rushcutters Bay (formerly Popolo), the Archie Rose Gin Distillery and Fire Dore - using her walker. Sarah continued to speak with her mother every day and video chatted often in the final four weeks of her life and it was not until the last 48 hours of her life that Ms Kemeny was unable to move.)
The plaintiff also relied on the evidence of a large number of friends, his family and local café owners to corroborate his description of the care he provided to Ms Kemeny. They described their observations of the plaintiff helping Ms Kemeny out of her wheelchair or taking her the bathroom whilst at their local café, dining out at restaurants or socialising at their home. On one of the restaurant occasions described by Ms Jones, Sarah says this was the plaintiff and Ms Kemeny's wedding anniversary dinner in November 2018, being three months before her mother died. Sarah picked her mother up from Wolper Jewish Hospital to take her to the dinner as the plaintiff was at work. They were late as Sarah's car broke down. On arrival, all the guests had already started ordering food and wine. Sarah pushed Ms Kemeny into the restaurant in her wheelchair, "and as soon [the plaintiff] saw us, … [he] rushed over and wanted to push Mum's wheelchair and was smiling broadly…" Sarah believed that, by this point, the plaintiff and Ms Kemeny's relationship had completely broken down "so this seemed to me to be very unusual behaviour and seemed forced and ingenuine. The whole evening he made an ostentatious display of offering to assist Mum do this or that and even offered to take her to the bathroom - something I had never observed him to do willingly in person. His behaviour the entire evening seemed very unlike [the plaintiff's] behaviour in private and it seemed to me to be a charade". After a while, Sarah "felt so fed up with performance" and left early, taking her mother back to the hospital.
The plaintiff said that the care needed by Ms Kemeny in the final months of her life was intensive, and I accept this.
The plaintiff says he took a significant amount of time off work to support his wife, which reduced his billings at Diamond Conway from a good performer to a poor performer. He had no time or energy for marketing and, when the formula for determining profit share amongst equity partners was changed, his share of profits reduced. In September 2018, the plaintiff says he reduced his working days at Bartier Perry to four days a week, with a requirement to bill four hours a day rather than 6.5 hours a day, "[a]s part of my retirement strategy and also so I could provide time for my carer duties". I note that this was when Ms Kemeny retained professional carers, which may make it less likely that the plaintiff reduced his hours to look after his wife.
The suggestion that the plaintiff reduced his work hours to look after his wife is hotly contested by the Kemenys. Sarah says that the plaintiff continued to work full time and on weekends, went sailing and kayaking or for beers with her father or other friends; he also competed in a weekly twilight sailing competition on Friday evenings.
It would have been easy for the plaintiff to put forward contemporaneous records to support the suggestion that he compromised his professional career and earnings to care for his wife, such as tax returns or law firm records of partnership drawings or billings. There were none. Of the many witnesses called to corroborate the care provided by the plaintiff, none were from the plaintiff's workplace. I am reluctant to accept the plaintiff's evidence in the absence of corroboration by documents or a relevant witness, where it might be thought that such evidence would be readily available to the plaintiff.
I note Ms Kemeny's observation in her 2015 email to the plaintiff that, after her diagnosis, "At first, you stopped working weekends but in time you were back to working …" There are multiple references in the medical records to the plaintiff working long hours. That is not to criticise the plaintiff but to acknowledge that, the more time he was at work, the less time he could be home fulfilling carers responsibilities.
Sarah also cared for her mother when she returned to Sydney. During these visits, Sarah did not stay at her mother's apartment nor spend every moment caring for her mother. Sarah says that she did not want to stay with her mother because there was no room to stay, the apartment was dirty and the relationship between her mother and the plaintiff was difficult to be around. Each of these matters appears to have been as she described. Nor do I think Sarah can be criticised for attending to other professional and social obligations whilst in Sydney; when in Sydney, Sarah devoted substantial amounts of time to her mother.
What does one make of Ms Kemeny's repeated and clear statements, towards the end of her life, that the plaintiff was not her carer: see [127], [159], [160], [167]. I expect this reflected several things. First, Ms Kemeny had become aware - either though comments made to her by hospital staff, by Patrick or the plaintiff - that the plaintiff was describing himself to others as her carer. Ms Kemeny, by now, had retained carers and thus was familiar with what that role entailed. Ms Kemeny was upset that the plaintiff was looking after her less than she considered a husband should. Their relationship was in a desperate state, which likely infused the care which the plaintiff did deliver: see [144], [149], [167], [168], [174]. Ms Kemeny was concerned that the plaintiff would hold himself as her carer in order to enhance his claim on her Estate, and did what she could to make the position plain by returning to Ms Rutstein and making her last Will. Ms Kemeny may have underestimated her husband's efforts and input, but I am unable to conclude that her assessment of the position - so clearly and repeatedly articulated - was wrong.
The position appears to have been that Ms Kemeny was able to care for herself during much of the ten years of this disease. There was an ongoing debate as to whether the plaintiff should be doing more to care for Ms Kemeny, whether Sarah should become more involved, or whether professional carers should be engaged or their hours increased. As the disease progressed, Ms Kemeny arranged for carers to attend at the home every weekday, and paid for those carers. The plaintiff continued to go to work and, when needed, took his wife to medical appointments. I do not doubt that, if his wife had called him at work to come home immediately because she had fallen and needed his assistance to get up again, that he would have gone quickly home to assist her. The plaintiff was at home in the evenings and on weekends, to the extent that his recreational and social activities permitted. The plaintiff appears to have had a keen interest in yachting and spent time participating in races and socialising at the yacht club. His participation in these pursuits does not appear to have been curtailed by reason of his wife's decline. At points of significant deterioration or medical emergency, Sarah promptly returned to Sydney and undertook the burden of her mother's care. The burden on the plaintiff in the last month of Ms Kemeny's life would have largely fallen on him, to the extent that the carers were not there.

[55]

(n) the conduct of any other person before and after the date of the death of the deceased person

The plaintiff says that, as the disease progressed, Ms Kemeny became increasingly difficult to live with. The plaintiff described his wife becoming "unstable" when he disagreed with her, and yelling loudly and aggressively. (From Ms Kemeny's text messages, it appears that the plaintiff also behaved this way.) The plaintiff said that Ms Kemeny repeatedly criticised him and he learned to keep quiet. "This made it emotionally difficult for me to care for Kathy".
The plaintiff describes a series of events from September 2014 on, when Ms Kemeny made a rash or offensive remark with which the plaintiff did not agree or felt embarrassed. It is not clear how Ms Kemeny's behaviour, as described, was connected to her illness; the events appear little more than one spouse taking issue with the other's behaviour at family or social gatherings. Ms Kemeny appears to have felt strongly about animal cruelty and, on occasion, made intemperate remarks to her husband and swore.
The plaintiff relied on the evidence of a number of friends who corroborated his description of how Ms Kemeny treated him. Ms Kemeny had fallen out with her childhood friend, Ms Jones, who said Ms Kemeny said "very nasty, horrible things" which shocked Ms Jones, who stopped inviting her to lunches with a mutual friend. In 2014, on hearing of Ms Kemeny's diagnosis, Ms Jones contacted Ms Kemeny but, after Ms Kemeny had an argument with one of Ms Jones' friends at book club, Ms Kemeny was not invited back. At the plaintiff's request, Ms Jones began visiting Ms Kemeny about six months before she died. Ms Jones observed Ms Kemeny speaking abruptly to her husband at a dinner, whilst the plaintiff was being very caring of his wife. Of Ms Jones, Sarah said her mother spoke of their disagreements, saying 'Kerry is so right wing' or 'Kerry always tries to push her monarchist, religious opinion on me'. Similar evidence was given by Ms Biviano. Sarah said, "Jennifer and Mum were not close in her final years. I believe they had a falling out after an argument at a dinner party."
Ms Brown described herself as a good friend of Ms Kemeny's who met when their daughters were doing ballet together. Ms Brown had multiple sclerosis. According to Ms Brown, Ms Kemeny often criticised how she was managing her health. Ms Brown felt upset by her comments but continued to see Ms Kemeny from time to time. About a year before Ms Kemeny died, the plaintiff asked Ms Brown to start visiting Ms Kemeny. Ms Brown described Ms Kemeny behaving towards the plaintiff in a way which horrified her, described by Ms Brown as a "verbal lashing". Ms Brown asked the plaintiff why he was still with Ms Kemeny, and he said he married her for life, in sickness and in health. According to Sarah, "Mum often said 'Annette [Brown] is such a busybody. She's always in everyone's business.' If Annette called while I was with her, Mum would often roll her eyes and ignore the call. When I asked why she didn't answer the call, she would say 'She's so bossy. I don't feel like dealing with her today.'"
Mr Gardiner also says he felt uncomfortable because of the way Ms Kemeny spoke to the plaintiff, rarely saying please or thank you. His wife, Ms Denholm described the plaintiff as very easy going and respectful whilst Ms Kemeny was sometimes very strident and would cut into conversations by speaking over people. Ms Denholm described the plaintiff as very patient with Ms Kemeny, who she considered treated him more like a servant than a loving partner. The plaintiff never snapped or responded badly to her demands but just calmly did what was requested of him. The plaintiff told her, "I do love her but it's just so difficult". Sarah said, "Mum hardly ever mentioned Hilary or her husband in our conversations although I knew they facilitated a mediation group Mum paid to attend years earlier."
Local café owners Edwina Sanderson said that Ms Kemeny was often very irritable and often spoke to her husband in a cross tone of voice whilst the plaintiff spoke calmly. Ms Sanderson said the plaintiff always appeared to be a caring, patient and attentive husband, "I remember thinking to myself how lucky Kathy was to have such a nice husband to care for her". By the time Ms Kemeny was in a wheelchair, Serena Sanderson noticed that Ms Kemeny almost always spoke to the plaintiff in a manner that she considered to be very rude and short whilst the plaintiff responded calmly and appeared caring and attentive to her needs. The plaintiff usually paid the bill.
Ms Booth lived across the road from the Wolper Jewish Hospital and visited Ms Kemeny from time to time and saw some degree of conflict: Ms Kemeny became angry; sometimes little things would set her off.
The plaintiff acknowledged that he and Ms Kemeny had different approaches to conflict. "My response when under pressure and stressed is to go quiet, and if possible, go for a walk. Kathy's usual response to pressure and stress was to be verbally aggressive and engage in a verbal argument about the issue." Sarah said the plaintiff often seethed through clenched teeth and her mother would call this "Michael being stressy".
It is certainly clear from Anna Schneider's affidavit that Ms Kemeny did not get on with Ms Schneider and was generally disapproved of by the Schneider family and not invited to family gatherings. Mr Kemeny was aware that the plaintiff did not take Ms Kemeny to his family events; Ms Kemeny was upset that the plaintiff had not defended her to his relatives and sided with them, telling her that she had been barred from visiting his relatives.
Sarah says her mother was very vocal about her beliefs. Michael says that both his mother did swear and prided herself on being down to Earth. His mother was a very intense and passionate person, "Mum despised the formal, cold and sterile family arrangements of her conservative upbringing, and tried to raise children who were not afraid to speak up". Michael does not ever recall the plaintiff objecting to his mother's language, and said that the plaintiff often swore himself. Michael also recalled an occasion at a restaurant in Double Bay when it was the plaintiff's behaviour which caused Ms Kemeny to express quietly to her husband that he should stop embarrassing her.
As to the suggested deterioration in Ms Kemeny's behaviour, Mr Kemeny said he has always known her to be at times difficult and certainly very steadfast in her opinions, but he did not believe that her illness made her any worse, "Certainly, in relation to her beliefs about animal cruelty, she had voiced those opinions for as long as I knew her".
There is no doubt from Ms Kemeny's later text messages to her children that, on occasion, she and her husband exchanged harsh words. I do not doubt that, from time to time, Ms Kemeny lost her temper. The plaintiff appears to have lost his temper too. But it should also be noted that, having now reviewed a large volume of medical records, Ms Kemeny interacted with health professionals over the entirety of her illness with unfailing courtesy. Ms Kemeny appears to have taken her diagnosis with courage and grace, and to have reacted to setbacks with positivity, often 'bouncing back' better than her treating doctors expected. Ms Kemeny rarely complained.
Whilst the plaintiff suggested that, as the disease progressed, Ms Kemeny's behaviour to those around her became worse, this is not corroborated by the medical records. Whatever snippets of their life were observed by friends or casual acquaintances, a more detailed picture emerges from the comprehensive medical records and contemporaneous communications between Ms Kemeny and close family members. These friends saw a partial picture and, whilst I do not doubt their sincerity, I have given greater weight to contemporaneous documentary evidence brought into existence long before these proceedings commenced. I do not consider this to be a material factor in assessing the plaintiff's claim.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (58 paragraphs)

Legislation Cited (1)

Cases Cited (26)

Cited By (5)