TOTAL $122,348.
5 Other debts and administration expenses apparently have been met. Taxation matters have been brought up-to-date and rent has been received from the investment properties, which are the second and third ones mentioned above.
6 It is probably useful at the start to give a fairly short chronology of some of the events to put the matter in perspective.
7 The deceased was born on 24 July 1936. Mrs Shcherbakova was born in the Ukraine on 27 July 1950. The deceased married on 27 August 1956 and he had three children; Linda, born on 13 July 1968; the defendant Nealings, who was known as Neil, was born on 28 March 1970 and Jean who was born on 30 August 1977.
8 The deceased seemed to have accumulated a number of assets, as the size of the estate indicates. In the early 1980s he started building a six unit motel on the farm, which has not been completed, as he planned to use it for farm stay activities and similar enterprises.
9 On 18 August 1981, Dima Shcherbakova, Mrs Shcherbakova's son, was born.
10 To return to the deceased's family for the moment. In 1984 there was a move in that Linda, Jean and their mother moved from Mangrove Mountain to Pearl Beach and lived with the deceased's mother. They seemed to have spent weekends back at Mangrove Mountain.
11 However, things did not go well and on 6 January 1986 there was a separation between the deceased and his wife. She and the children moved up the road to 40 Pearl Beach Road. In 1987 they were divorced and in 1988 there was a property settlement.
12 The deceased became involved in other interests and in 1992 he had, at his farm, some 16 children who came from the Ukraine who were affected by the Chernoble catastrophe.
13 He looked after them and this obviously sparked some interest, as he commenced to correspond with Russians and a number of people in the Ukraine and elsewhere.
14 In 1993 Dima Shcherbakova won a competition at his school in the Ukraine and won a pen friend. This happened to be the deceased and communications started between them in 1994. Those communications extended, apparently, to Mrs Shcherbakova as well.
15 The deceased's will was made an 4 April 1995 and I have already referred to its terms. As a result of the correspondence that had ensued over a year or so, the deceased flew to the Ukraine via Japan and Russia. He spent some three weeks or so with Mrs Shcherbakova and her son at the house which was owned both by Mrs Scherbakova and also by her mother.
16 According to Mrs Shcherbakova, a personal relationship developed during that period and there was a proposal for marriage and plans made for her to come to Australia with her son.
17 Immediately he got back, the deceased set out to organise visas for Mrs Shcherbakova and her son. That went on until October 1996.
18 In the middle of 1996 the deceased injured his back and required some hospitalisation.
19 In July 1996, the defendant, Nealings, married his wife Karen. Ultimately they moved into the farm at Mangrove Mountain a short time before Mrs Shcherbakova came to Australia.
20 In August 1996 the deceased had a heart attack and he was admitted to hospital. At this stage he also went about giving instructions for a will to make provision for Mrs Shcherbakova.
21 On 12 November 1996 Mrs Shcherbakova and her son arrived in Australia. They were met at the airport by the deceased, a friend, Eric Hindes, and his wife Tania. They went to Mangrove Mountain on that day and moved into the house.
22 On 15 November 1996 the deceased had a heart attack and was admitted to Gosford Hospital. He remained in hospital and in late November it became apparent that he needed to have by-pass surgery. He went to Sydney to have this performed at Prince Alfred Hospital. The surgery was on 3 December 1996. Four days later, on the 7th, the deceased had a stroke and was paralysed. In died in hospital on Christmas Day, 25 December 1996.
23 The plaintiffs and Mrs Shcherbakova and her son had remained in occupation of his house on the farm. They continued to do so until 14 April 1997 when they left the property at Mangrove Mountain and moved to emergency accommodation in the district in which they were then living. She, in due course, obtained social security services and Mrs Shcherbakova's son continued his schooling and attended English classes. By mid 1998 he had obtained a position as an apprentice carpenter.
24 On 2 July 1998 probate of the deceased's will was granted.
25 In December 1999 Mrs Shcherbakova tried to contact her mother in the Ukraine and was advised that her mother had died a month ago. She was also told that her brother, her remaining relative, had also died. In January 2001 Mrs Shcherbakova and her son were granted Australian residency.
26 There is, of course, no doubt about the eligibility of Linda and Jean, both daughters of the deceased. Jean has only been joined in the proceedings so that proviso in the will that she take on attaining 25 years can be varied. She is 23 at this stage.
27 Mrs Shcherbakova and her son claim to be eligible persons and this has been the subject of much debate before me.
28 These proceedings were commenced prior to 28 June 1998, the date of the commencement of the Property Relationships Amendment Act, 1999. Mrs Shcherbakova, therefore, has to be a person who was living in a de facto relationship at the date of his death.
29 Under the principles which applied under the Act in force in 1998, she can also prove she is an eligible person by establishing that she was at some time part of the household of the deceased and she was partly dependent upon the deceased. The son, Dima, of course, would only establish eligibility on this later basis.
30 I will first deal with Mrs Shcherbakova's position.
31 The defendant does not submit that Mrs Shcherbakova did not intend to come to Australia to marry and live with the deceased when she flew into Australia. The defendant submits that when she arrived and saw the circumstances in which she was to live, she changed her mind, decided not to proceed with the marriage and left the deceased. In considering the circumstances, which I will discuss, it must be appreciated that the deceased could not speak Russian and Mrs Shcherbakova could not speak English, except in a very minor way.
32 Mrs Shcherbakova and her son, whilst residing in the Ukraine, which was part of the former Soviet Union, was reasonably well off financially and she lived in a house which was apparently reasonably comfortable. Her mother had a small farm outside of town. Upon the overthrow of the Soviet Union, she found life becoming more difficult. She had worked as a managing director of a child care centre where she had been employed since 1973.
33 In 1994, as a result, no doubt, of the overthrow of the Soviet Union, she was demoted to the position of an employee. By 1996 she was being told that her employment would be terminated at the end of the year.
34 In or about late 1993 the correspondence between Dima and the deceased commenced. It is quite clear that the deceased arrived in the Ukraine in April 1995 as a result of that correspondence and resided with Mrs Shcherbakova and her son for about three or four weeks. Clearly a relationship between them developed and there was a very clear request on the plaintiff's evidence from the deceased that they both move to Australia and live with him.
35 He made promises of support and a new life. It is also clear, on her evidence, that there was an engagement ring purchased and that Mrs Shcherbakova accepted his proposal to marry. They even attempted to obtain some form of marriage in the Ukraine.
36 According to Mrs Shcherbakova there was a sexual relationship between them and although some statements to others might be to the contrary, given to whom they were made, I am prepared to accept what Mrs Shcherbakova says on this aspect.
37 It was a difficult time for Mrs Shcherbakova after the deceased had left. She had committed herself to come to Australia and made up her mind that that is what she wanted to do and to live with the deceased. Her understanding was that if she left the Ukraine she would forfeit her citizenship, pension and job entitlements and that her internal passport would be destroyed. There is some uncertainty as to whether these things could happen. The practice seems to be that they did and she certainly believed that was the case.
38 As I have mentioned, the deceased set about facilitating the migration to Australia. True it is that the only way in which she was going to be able to come was if she fitted into the category of someone who was going to marry the deceased.
39 There are many letters which are in evidence which indicate the seriousness of the deceased's intention. He wrote to Members of Parliament, Government Departments and spent numerous periods on the phone to people, including people in Russia, in order to progress the matter. He also wrote to Mrs Shcherbakova in this period. Not many of those letters are in evidence, however one, Exhibit J to her affidavit, illustrates the matters that that correspondence included. He wrote, addressed to; "My dear people," and in response to a letter of theirs in July 1995 he wished Natasha a happy birthday, remembering her birthday was on 27 July. He talked of having her picture blown up and put up on his wall so that she was the last thing he saw at night and the first thing he saw in the morning. He reported that he was working on a vegetable garden and wanted to grow flowers. He then went on to ask about whether she had got her passport, whether she had been to the embassy, and other matters to progress the visa application.
40 He also, having referred to having met a man in Gosford who had a new wife from Russia, that she would at least have four people who were Russian speaking and with whom she could be friends when she arrived. Clearly he anticipated the difficulties she would have when she did come.
41 Prior to Mrs Shcherbakova coming to Australia, as part of the process for the visa, the deceased completed and lodged a Notice of Intended Marriage. This required him to obtain the consent of a marriage celebrant and the marriage was planned for 5 April 1997.
42 The next thing that happened, shortly prior to Mrs Shcherbakova arriving, was the preparation of a new will. That will was prepared by the solicitor who prepared the previous will and that still made the bequest to the son as to two thirds and as to Jean as to one third. It did, however, provide two things for Mrs Shcherbakova. It gave her a right to occupy the property at Lot 1720 Wisemans Ferry Road with the contents until she died or no longer wished to reside. It also gave her an annuity. The numerals show "$15,000", but in brackets, where the amount is written out in full, it is provided for that she receive $50,000. That was an annuity for life payable monthly in advance and it was required to be up-dated each year.
43 The circumstances surrounding this were relayed by two people who gave evidence in the matter. They were Mr Eric Hindes and his wife, Tatiana Efremova. They apparently were Russian speaking, or Russian by origin, and were able to assist the deceased in translations. Obviously the deceased had a lot to do with them in the period before Mrs Shcherbakova came to Australia.
44 Their evidence was not cross-examined upon and there is no reason why I should not accept it. They were outsiders, although naturally they had a Russian background. However, their evidence generally is inherently probable, given the documentary evidence of what the accused was doing and saying in 1995 and 1996.
45 As I have mentioned, the deceased had his first heart attack in August 1996. Mr Hindes went to hospital to see him and he was the person who was also looking after the property for him. At that stage the deceased said to Mr Hindes, "I'm really worried about Natasha because I have not changed my will yet." He went on to say, "The will must be changed because Neil will do nothing for them. He is not much good. He does not do the things I want him to do, but he is all I have got."
46 He went on to say that he would change his will at some stage. Mr Hindes contacted Mr King. Mr King went to see him, the deceased, in hospital. A few days later the deceased related to Mr Hindes that the solicitor had been to see him. He said that, "Yes, okay, it's been done. I can relax a bit now because I now that Natasha will be looked after." Mr Hindes said, "Are you happy?" The deceased replied, "Yes, I am happy."
47 All this, of course, occurred before Mrs Shcherbakova arrived in Australia. It also shows some of the tensions between the deceased and his son, Neal. This occasion of which evidence is given may well be a different occasion to that which Neal recalls when he and his father saw Mr King together. Clearly instructions were given. The will was found in the deceased's house. Unfortunately, it was not signed.
48 There was an affidavit from the solicitor. However, it is confused as to when events happened. He did not have any file to help him. He also speaks of needing to contact the deceased's accountant before he finished drawing the will. The will in evidence is clearly a draft. There is a space after the provision for an annuity as though someone was going to insert something else in there. Probably the fact of the matter is that the solicitor did not get around to doing it. The matter was not progressed by the solicitor once the deceased went into hospital with his second heart attack three days after the plaintiff arrived.
49 Prior to Mrs Shcherbakova's arrival, the deceased also tried to make the house appropriate. He moved some antique furniture into the house because he wanted her to have it. He was looking about and trying to get out some jewellery for her to have when she arrived. He did a number of things, but he unfortunately did not address what turned out to be the difficulty for Mrs Shcherbakova when she got here.
50 If one looks back on Mrs Shcherbakova's position, I think it is quite likely that she was considering migration to Australia before she met the deceased. She made, however a decision to do so when they were both together in 1995. Her circumstances in the Ukraine provided a substantial motivation for her to adopt this course. Like many Russians, she was living in the outlying states of the former Soviet Union and found life becoming more and more difficult after the collapse of the Soviet Union.
51 That impetus, for her to accept the deceased's proposal and make a decision to come to Australia, does not complete the picture. It is clear that she owned one of the two units in the house that she and her mother occupied. She could not take property with her, so what she did was to give up her entitlement to the house back to her mother. The other thing was that she had to make the decision to leave her ageing mother who was a worry to her. She tried to put in place arrangements for her mother's care which unfortunately failed.
52 She also had a brother who was there who was to be left behind. There was also, leading up to her leaving, substantial difficulties put in the way of her leaving. Threats were made to her by the police about her son and other matters, the details of which I will not go into. I am quite sure she had real doubts as to whether she could ever return once she made the commitment to leave the Ukraine.
53 The language difficulties of the deceased and Mrs Shcherbakova would have been great, but the evidence at least shows that they had translators who could assist them, for instance in the telephone calls that occurred between the deceased and Mrs Shcherbakova. I do not think that the language difficulty would have been seen by them as a barrier by their marriage. The deceased was obviously contemplating arrangements to overcome this problem in Australia. Many people in this world have gone on to have successful marriages notwithstanding such difficulties.
54 There is, in my mind, no suggestion in the evidence that Mrs Shcherbakova, when she came to Australia, was not intending to marry the deceased. One could well imagine the anticipation of a new married life in a different land after some 15 years of loneliness. Unfortunately, such hopes were dashed by the tragic illness three days after she and her 14 year old son arrived. There is also no doubt that the deceased also intended the marriage. His actions clearly demonstrate this.
55 The circumstances of her arrival also brought her face-to-face with a situation which she was not expecting. At that stage the deceased was 60 years of age. He had been a bachelor for some 10 years and had behind him one marriage which was unsuccessful. He had a house and a farm, but when one looks at the photographs of it, one sees that perhaps the deceased was a collector of things. His daughter described life as being one where, if something broke, it was never fixed. One can see collections of machinery and other matters scattered about, as though things were ultimately going to be done, but never got to be done. It was somewhat untidy.
56 Mrs Shcherbakova was collected at the airport by the deceased, Eric Hindes and Mrs Efremova. Those two people both gave evidence as to the reaction that occurred when the party arrived back at Mangrove Mountain. Mrs Efremova described the house as being very untidy. She said the first plaintiff was somewhat shocked at the appearance of the place and she was very tired from the trip. She also noted the fact that she was not comfortable talking with English speaking people.
57 Mr Hindes himself also described the house as untidy and, in fact, filthy, the smell being offensive. He talked about the carpet being heavily soiled with dirt and grease; such stains which could not be removed. He also referred to the plaintiff, Mrs Shcherbakova, as being in a state of shock.
58 Mrs Shcherbakova herself says she was certainly not feeling very well. She was, in fact, nauseous and she had vomited. Her legs had swelling, no doubt as a result of the flight, but they did go down after about a week.
59 In her cross-examination she described how it took her a day or two to recover. She was not perhaps as outspoken about the state of the house as Mr Hindes and Mrs Efremova, but she described it as being not what she expected when a visitor was coming from another country.
60 The son described it as having a lot of rubbish.
61 I have spoken of her background. She was a well educated woman and obviously intelligent. She was well groomed. It is not surprising that she was upset.
62 The evidence of what happened over the next two days represents a somewhat confused picture.
63 There is evidence by, of course, the son Neal, and also by Mr Boehm, a friend. He reports the deceased, after a couple of days, saying that things were not as expected and that Mrs Shcherbakova and her son would lock themselves in the room in the evening. To a similar effect are statements made to Neal by his father, the deceased. Neal wanted to meet them, but his father indicated that they, in the evening, had locked themselves in the bedroom and would not come out until the morning.
64 Clearly the deceased was agitated about what had been happening on the 13th and 14th. The question of precisely what went on in those days is hard to resolve. Mrs Efremova said that according to her observations when she was there, the plaintiff and the deceased appeared to be sharing a bed. Mrs Shcherbakova herself says that they were sleeping together, although given her sickness, there is no doubt that there may have been some adjustments to accommodate that fact.
65 The other evidence that is available refers to what was being done by the plaintiff, Mrs Shcherbakova. Mrs Shcherbakova, in effect, set about cleaning up the place. According to Mrs Efremova, she was doing so much that the deceased asked her to stop. She had succeeded in washing out the entire house. There is also evidence about misunderstandings about guns and matters of that nature.
66 By the 15th, things had become quite difficult. The deceased reported to his son, according to his son, a further statement in which the deceased said that the plaintiff and her son were not the same people he had met in the Ukraine and they did not, "Want to have anything to do with me." At that stage Mrs Hindes and Mrs Efremova said that they effectively had come to try and sort things out. Mrs Efremova remembers this occasion. She recalls Mrs Shcherbakova being very upset and saying that, "A woman cannot be expected to live in this mess."
67 There was also some upset about some accusations of money, or some other property, being taken. Precisely what they are, is somewhat confused in the evidence, but it is not suggested there was any theft of which there is some evidence before me.
68 The discussions at that stage were between Mr Hindes, Mrs Efremova and the deceased. The former were obviously trying to sort out a situation which had become somewhat difficult.
69 In the conversations that occurred between Mrs Efremova and the deceased, she suggested to him that it would be good if Natasha could have a night out so the confusion could be sorted out. He said, "Okay." It was obviously a matter of some disappointment for the deceased. He came out and made comments to his son saying, "They have all gone, they didn't even leave a note," and he did not even know what was going on. Certainly there was confusion, no doubt caused by difficulty with language translation. At that stage the deceased did not feel well, he had pains in his chest and his son, Neal, took him to hospital. It became clear, according to a doctor when he was admitted, that he had had a heart attack.
70 The circumstances of that departure are, of course, central to the matter. What is critical is the plaintiff's intention when leaving. In her affidavit evidence, at paragraph 13, she said, "I intended that we should stay away for the night." She then recounts what happened the next day.
71 Her evidence in cross-examination was as follows:
"Q. You took Dima and you went to the Hindes's house?
A. So Tania and her husband had a conversation with Grahame and they agreed that it would be better to - for all of us, for myself and Dima and for Grahame as well, if we go to the Hindes' house for couple of hours and then a few hours after that, Grahame would come and - would come to that house, yes, he would come to Hindes' house. That - anyway I was explained this by way of Tania.