Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe

Peter Porada, the Eden District and Ms Tracey Wilson

1. This section of these reasons contains a chronological narrative of the Court's findings on contested and uncontested issues.
2. The parties filed a substantial amount of material on each side of the case. It is not possible for basic reasons of economy to make findings about all the evidence adduced. Nevertheless, this narrative makes findings about the matters of relevance to the Court's ultimate conclusions. Even on contested matters the narrative does not always include reference to the evidence that the Court has rejected in favour of the Court's actual findings.

The Porada Family Comes to the New South Wales South Coast

1. The deceased's parents fled from their native Germany, now part of southern Poland at the end of WWII and settled in Australia. An important issue in the proceedings is how close the deceased was to his siblings. I accept Mr Hans Porada's evidence that he, Edelgard, Peter and Manfred were very close. I reject Ms Wilson's evidence that the deceased disliked his siblings. This issue is discussed in more detail later in these reasons.
2. But family background points towards the deceased coming from a fairly close knit group of siblings. Their parents' district in Germany was overrun by the Soviet Army in January 1945 and they were caught behind Soviet lines. But they wanted to be captured by the Western powers, not the Soviet army. So they managed to make their way into the Western sector occupied by France, Britain and the United States. From there they applied for, and were granted, passage as refugees to Australia.
3. They first settled in the Braidwood district, where Edelgard still lives, and later in Eden. As might be expected Hans Porada, the oldest child of the family has the best memory of his parents' attachment to their new land. He gives a compelling account of their happy early childhood in this country with their parents.
4. The deceased was a very competent diesel mechanic. With his siblings, Manfred held a strong interest in the operation and repair of machinery. Peter Porada worked for South-East Fibre Exports, as a diesel mechanic at the Eden chip mill for 38 years before his death.
5. The Eden chip mill which was over 50 kilometres away from where the deceased lived, organised a bus service for its workers which collected and dropped them off at the Kiah Store. The deceased would drive to the store and take the bus from there.
6. Two people in these proceedings were able to give a particularly accurate profile of the deceased's character. One is his older brother Hans. The other is Mrs Katherine Drysdale. To a very considerable degree their character assessments of the deceased overlapped. They were some of the most reliable witnesses in the proceedings. Their evidence is discussed in more detail later in these reasons. But the fact that their character assessments of the deceased was not surprising.
7. Mrs Drysdale for example, formed a number of firm impressions about the deceased. From her observations of him over the years she could tell he was not very sociable and was shy around people he did not know well. But even with people he did know well, she assessed him as a man of few words. Other family members appeared to the Court to be a little like this too. Hans was more expansive, but Manfred was someone who said no more than was necessary to convey reasonably minimal information.
8. I accept Mrs Drysdale's assessment of the deceased as a "good hearted and generous man," who had a hard time saying "no" to people. The deceased was not someone to be locked into a social timetable. Mrs Drysdale observed that he did keep timetables in relation to his work, which was the most reliable part of his life. The correctness of her assessment is evident in indirect ways: his regular long-term employment with the chip mill meant that by the time of his death, he had a substantial sum of superannuation entitlements.
9. But Mrs Drysdale was realistic. She assessed the deceased as a very regular drinker of alcohol, so often indeed that one of the reasons he never visited his brother Manfred in Queensland was that he confessed to her he thought he would be arrested for drink driving. But there is no evidence the deceased ever became violent when drunk. The same cannot be said for Ms Wilson.

Assessing Ms Wilson's Account of her Early Relationship with the Deceased -2004 to 2009

1. Ms Wilson currently resides at a 40-acre property in Fulligans Road, Pericoe, New South Wales (referred to in these reasons as "the Fulligans Road property"). She lives there with her three children who in June 2015 were 8, 17, 13 and 12. Ms Wilson and the father of her three children, Mr Chris Smith, separated when their youngest child, was about to be born.
2. Ms Wilson has lived at that address for about the past four years. She purchased the Fulligans Road property with the proceeds of victim's compensation, she was awarded in respect of past sexual abuse she had suffered at the hands of her stepfather.
3. Ms Wilson's property is isolated. It is situated some 50 kilometres from Eden and 20 kilometres from Toowoomba, but is in the same district as the deceased's property, Pericoe Farm. Pericoe is indeed a very small rural community. It is located in the Towamba State Forest in the Bega Valley shire on the south-coast of New South Wales. Pericoe is approximately a one hour drive west from Eden. There are only about eight or nine houses in the area. There are no schools or shops. Most of the parties and witnesses to these proceedings live within a few kilometres and only a few minutes' drive of one another. But most of the houses cannot see each other because of dense bush land dividing them.
4. Prior to purchasing the Fulligans Road property, Ms Wilson had rented another nearby property known as "Rosebank" also at Pericoe. She had lived there for about eight and a half years after she and Mr Smith separated. Rosebank was very close to the deceased's property.
5. Ms Wilson says, and I accept, that she met the deceased about 16 years ago. She says that she only formed a closer relationship with him about 12 years ago, after she separated from Mr Smith and had moved with her three young children to Rosebank. She says that the deceased was one of her closest neighbours and that he and she soon fell in love.
6. I accept this much of her early narrative. But she goes on to say that they remained in love until the day that he died. I do not accept this is true. She adds that "we are also great friends". In my view they remained friends, but no more than friends at the time he died, and friends with a troubled relationship at that.
7. Ms Wilson says that she and the deceased formed a habit of living in separate residences. This is true. From the time that Ms Wilson and the deceased met, he had always owned Pericoe Farm, a family farm of some 650 acres he had partly inherited from his parents and on which he ran about 50 to 60 head of cattle. Ms Wilson says they did not end up living together because the deceased needed to attend to proper animal husbandry practices on Pericoe Farm. She says that at one stage they all tried to live at the deceased's house but it ended up being too small for all of them, so she moved back to Rosebank and he mostly lived at Pericoe Farm, so he could be directly accessible to look after the needs of his cattle. I accept her evidence as to this, but only accept that this was the case up to about 2009.
8. Ms Wilson says that the deceased stayed at her place about three or four times a week, mostly coinciding with weekends, due to his work commitments and because of his need to attend to his animals. She says that she and the children would also go and stay at his place on weekends, depending on what they were doing. She says that she would stay at her place, Rosebank, during the week given that her children needed to have supervision for their homework and to be organised to attend school. Again, I accept that this is a reasonably accurate account of their relationship from about 2004 up to about 2009.
9. Ms Wilson says that from time to time the deceased had to work night shifts and when he did night shifts the deceased would stay at his own place and she would cook him lunch. But once a month he had a rostered day off from work, so he would usually stay at her place on a Thursday night.
10. Ms Wilson says that she and the deceased did everything together, sharing family holidays, going to family weddings together and even chopping wood together. She says that he even attended hospital when her children were sick and became an integral part of the family. The deceased's relationship with Ms Wilson's children is considered in more detail later in these reasons.
11. Ms Wilson says that her children saw the deceased as their father figure given that their own father had many personal issues. She says they were inconsolable after his death and they have needed counselling at school. She is mostly to be accepted about this.
12. Ms Wilson relies upon a number of photographs of her and the deceased together to show that they are a couple. The case against her is that the same photographs can equally be interpreted as the appearance of good friends relaxing closely in one another's company rather than necessarily their being a couple. Some of the happiest of these photographs involved the deceased with Ms Wilson's children. But this case is not readily decided with photographs because in my view Ms Wilson's relationship with the deceased changed over time.
13. Ms Wilson exchanged cards. They express affection. But the case against her in relation to these is that to the extent that they infer intimacy, they are only related to the period shortly after the engagement. In my view, they do demonstrate intimacy between the deceased and Ms Wilson but only up to about 2009.
14. Ms Wilson gives examples of the closeness of her relationship with the deceased. Her evidence on this is true of the period a few years on either side of their engagement, which I find occurred in about mid-2007. She says that he left his clothes at her home in a drawer in a cupboard in her bedroom, including some work clothes and some shorts. She says that he left toiletries at her home and a toothbrush but he was not a man to use aftershaves or a complicated number of toiletries.
15. Ms Wilson says that the deceased kept his motorbikes at her place from time to time, and that he continued to do so right up until his death. This can be accepted. But it does not indicate a continuing de facto relationship after 2009.
16. The deceased was very attached to his motorbikes. He was something of a collector of antique bikes. Not all of his bikes were operational but they were rare and unless properly secured were liable to theft. The deceased was well-known in the local community to work long hours and sometimes do shift work at the Eden chip mill. Leaving the bikes at his home may have been an invitation to thieves. I accept therefore that he garaged them from time to time at Ms Wilson's home.
17. His three bikes were quite unique. He had a 1929 Harley Davidson J model. This was a rare bike from the final year of production of Harley-Davidson models prior to the decline in Harley-Davidson sales due to the Great Depression. The next was a 1926 Indian Scout motorcycle, one early type of this model of motorcycle produced in the United States by the Indian motorcycle company between 1920 and 1949. Finally, he had at 1944 Indian Chief, some varieties of which were originally produced during the Second World War but then widely sold for civilian applications. Ms Wilson says, and I accept, that this vehicle may have been worth up to $35,000. The deceased leaving them with her even after the time in about 2009, when their de facto relationship ended is explained as the simple expedient of like-minded friends and neighbours seeking to secure property from thieves. Leaving these bikes at Ms Wilson's place is not in my view a strong indicator of a continuing de facto relationship between the two of them.
18. Ms Wilson says the deceased did many odd jobs around her house, fixing the generator, her car and general repairs and maintenance in the house. Ms Wilson says that the deceased's workplace washed his clothes but that she did his washing at other times. She says that when he came to her place he would do most of the cooking but did not like to wash up. She says that she did most of the household chores in the house whilst he worked outside on the farm. This too can be accepted for the period a few years on either side of their engagement.
19. The deceased and Mrs Wilson did not cease to be friendly neighbours and were generally supportive of one another in that context after their de facto relationship had ended in about 2009. Given his expertise in diesel mechanics and his generosity of character, it could be expected that he would volunteer to do general repairs and maintenance for a near neighbour and old friend such as her. He was undoubtedly, as she says, "very handy around the house and farm".
20. The plaintiff says that she always sought to maintain financial independence from men and did so because of her bad experiences as a child, and due to that she never mixed her finances with the deceased. But she says that they did share food expenses, often when shopping together and that the deceased contributed to some of the children's expenses such as buying them items for school and to contribute to the repair and maintenance of the childrens' motorbikes.
21. She says that the deceased also contributed to her household expenditure by paying for incidentals on the way home from work, collecting bread, milk and getting petrol and gas.
22. Ms Wilson is to be accepted that she and the deceased never wholly mixed their finances, and for the reasons she says. But Ms Wilson did gain considerable financial benefits from her relationship with the deceased. He had full employment and money to assist her and in my view he did.
23. Before meeting Ms Wilson, the deceased had been in a long term relationship with a woman by the name of Claire Ferguson. The deceased's abandonment of this relationship for Ms Wilson devastated Ms Ferguson. As a result Ms Ferguson turned in upon herself and ultimately tragically suicided. Perhaps out of a sense of guilt, the deceased gave a half share of Pericoe Farm to Claire Ferguson's son Ross, who still owns it. But in evidence that I wholly accept, Hans explains how this arrangement came about and how it intersected with his own arrangements about the farm with Peter.
24. Ms Wilson says that the deceased did discuss with her what each of them would do if the other died, and what they would do with their estates. She claims that he told her he would see a solicitor and make a will. She says the deceased expressed his testamentary wishes to her, as follows: 1. the three motorcycles would be given to Manfred; 2. the deceased's half of Pericoe Farm together with its contents and farm equipment should be divided equally between the deceased's nieces and nephews so that it would remain within the family; 3. any monies in bank accounts would be divided equally between his nieces and nephews; and 4. the deceased's superannuation would be given to Ms Wilson and her children.
25. I doubt the deceased said any of this. Ms Wilson's account of what he said in relation to the estate is not reliable. If it were said, it would have been about the time of their engagement in mid-2007. But their circumstances changed after that.

Other Plaintiff's Witnesses on the Relationship - 2004 to 2009

1. Ms Wilson called a number of witnesses to support her account of her relationship with the deceased. I accept much of what they say for the period 2004 to 2009. But their evidence is less reliable after that and in my view more based on assumptions about the relationship continuing.
2. Mr Ian Heath first met Ms Wilson in 2000 when she was living with her former partner, Mr Christopher Smith. He first met the deceased with Ms Wilson towards the end of 2003. He quickly formed the impression that they were in a permanent relationship.
3. There was a public perception of the deceased and Ms Wilson being a couple for a number of years. Mr Evelyn was a security officer who worked with the deceased at the Eden wood chip mill. His understanding from interactions with the deceased in the course of their common employment was that the deceased and Ms Wilson were "a couple" who would come to town from time to time. When he saw them in town he observed they were "always together". His recollection was that that this was right up until the time that Peter Porada died. His estimate in his affidavit of the length of their relationship was 10 years.
4. Mr Evelyn used to like to go into town to Eden on Saturdays, though not necessarily every Saturday, to "have lunch at the pub", to catch up with people which according to him was "a pretty social sort of thing to do". He did not come every week but on average would see the deceased about once a month. The main street of Eden he explains is only 200 metres long and it would be easy to run into people on the street. That is where he saw the deceased and Ms Wilson.
5. When asked how regularly Mr Evelyn saw the deceased and Ms Wilson in town together, and whether he saw them together right up until the time that Peter Porada died, Mr Evelyn answered "yep, pretty much, yeah". In my view Mr Evelyn was less certain whether in the final few years he really did see them on a regular basis together in the street, although I accept his evidence is correct that in earlier years that he did.
6. Mr Evelyn's understanding of they "were a couple" was not based on the deceased actually "saying they were a couple". But it was really based on the frequency of his observations of seeing them together that he judged that they were a couple and comments that the deceased said to him at work about "me and Tracy" doing various things together. But he was not a sufficiently close observer to be able to pick up changes in the nature of their relationship.
7. Ms Linda Hallinan has lived in the Kiah district for over 40 years. She met Ms Wilson a little before the year 2000. She was sufficiently close to Ms Wilson that she attended two of her three boys' births, because Mr Smith was absent.
8. Ms Hallinan says, and I accept, that the deceased took over a role as father to Ms Wilson's boys, from about the year 2000. She says he had this role through until his death. She is partly right about this. Even though the deceased and Ms Wilson's relationship ended in about 2009 he remained fond of and was looked up to by Ms Wilson's children.
9. Ms Hallinan says that the deceased had to attend to his large farm as well as working during the week at the Eden Chip Mill and that Peter and Tracy alternated getting firewood, mustering cattle, fencing on either of their respective properties on weekends, and regularly got together after work on some days. She says they formed a loving relationship.
10. Ms Hallinan says that the deceased and Ms Wilson did break up for a short period of time. But her memory is that this break up preceded a barbecue that she and husband were invited to attend at which the deceased and Tracy announced their engagement.
11. Whilst there may perhaps have been a short period of separation before the engagement party and Ms Hallinan may be correct about that, there was in my view a major separation within two years after the engagement party. That that is the more probable order of events; not the order in which Ms Hallinan recalls them.

The Deceased becomes engaged to Ms Wilson - Mid-2007

1. Ms Wilson claims in her June 2015 affidavit that she and the deceased became engaged to be married "about eight years ago". That would place their engagement in about mid-2007.
2. I accept that they did become engaged. The objective evidence and a number of credible witnesses support the fact of their engagement. Ms Wilson says that the occasion of the engagement coincided with the deceased receiving a voucher for $500 from his place of employment, the Eden Chip Mill, as a gift for 30 years as a faithful employee. She claims that the deceased used that voucher to buy her engagement and wedding rings, which were set by George's Jewellers in Eden. She says, but others dispute, that she has worn the rings every day since he gave them to her. She claims that their mutual intention was "to marry someday". The receipt for the rings is attached to her affidavit and shows that indeed they were purchased on 16 August 2007.
3. The receipt appears to be authentic. It points to the purchase of rings. Based upon it, and the evidence of a number of other witnesses, who I accept on this issue and who say they attended an informal engagement party for the couple, I infer that the deceased and Ms Wilson became engaged to be married in about mid-2007.
4. Even some of the defendant's witnesses support the fact of an engagement at about this time. Mrs Susan Jones, the part owner of the Kiah General Store for about eight years before the deceased's death said, and I accept, that at what appears to be about the time when the deceased became engaged to Ms Wilson,he permitted her to book up purchases on his account at the Kiah General Store. He communicated this authority to Mrs Jones by saying "Tracey can use my account, we are seeing each other". Mrs Jones puts this instruction from the deceased as occurring in about 2008
5. Mrs Drysdale also thought that Peter Porada and Ms Wilson were engaged in about 2008. She places the engagement at about the time of the discovery of the bodies of the Bell children, a tragic murder-suicide event in this district in 2008. Ms Wilson and the deceased were involved in the discovery of bodies and I accept it affected them both profoundly.
6. In my view the engagement was in about mid-2007, as Ms Wilson says; not in 2008.

The De Facto Relationship Ends - 2009 to 2010

1. The engagement was the high point of Peter Porada's relationship with Ms Wilson. Mrs Drysdale says, and I accept, except as to her timing of the moment, that within only about two months of the engagement that the deceased had deeply regretted his commitment. He turned to Mrs Drysdale saying, in dramatic perhaps even desperate, words, "help me get her out of my life. Give me your opinion".
2. I do not accept that Peter's rejection of Ms Wilson was as quick as Mrs Drysdale says. But I do otherwise entirely accept her account of the conviction with which Peter Porada expressed to her his desire to exit his relationship with Ms Wilson. I accept that he did confide in Mrs Drysdale, as soon as his relationship with Ms Wilson started to go sour. When they were alone he broke down in front of her and said: "I cannot get Tracey out of my life. She follows me everywhere. She is always coming by my house uninvited and taking my alcohol and cigarettes. She can be very violent. What can I do Kate? Please tell me what to do Kate!"
3. Mrs Drysdale said the obvious. She emphasised to him that only he could make the decision to act upon his concerns. She encouraged him to go and visit his brother Manfred up in Queensland, stating "it will make you happy and you won't have to see her [meaning Ms Wilson]". Mrs Drysdale's account explains much of what followed after the breakup of the relationship. I accept that the deceased could indeed not "get Tracey out of his life". She simply refused to accept that the relationship was over. She kept imposing on his goodwill. And as he lived so close by, it was difficult for him to get away from her.
4. Mrs Drysdale says, and I accept, that nothing that has happened since the time of these conversations causes her to believe that the deceased and Ms Wilson remained together as a couple. But why did they break up?
5. There were probably a number of factors at work. But one prominent answer is that Ms Wilson was violent towards the deceased. A vicious incident occurred within one or two years of the engagement that helped changed the deceased's mind. He decided he could not marry to someone who was capable of gratuitous brutality, especially when drunk.
6. Mrs Drysdale's evidence, which I accept, is that one night in a moment of inexplicable aggression, Ms Wilson hit the deceased over the head with a bag of oysters and severely gashed his head. Ms Wilson denies the incident occurred. I do not accept her denial. She may have been intoxicated when it happened, and I doubt her memory of the events is reliable.
7. In any event, Mrs Drysdale gives a detailed and compelling account of the incident. Ms Wilson frantically telephoned Mrs Drysdale one evening "about five or so years ago" (she puts the date in about 2012 but it is more likely to be in about 2009 or 2010), in which Ms Wilson said "Pod and I had a fight and I just hit Pod, he is bleeding pretty badly and driven home. Can you please go over to Pod's to check up on him?".
8. Mrs Drysdale and another friend of the deceased, a Mr Eric Jamsek, went straight to the deceased's house that night after Ms Wilson's phone call. She has good reason to remember this incident: she medically treated the deceased, who was bleeding from the head. Whist she was attending upon him he confirmed to Mrs Drysdale that "she [Ms Wilson] bashed me over the head with a bag of oyster shells".
9. Mrs Drysdale had an excellent and compelling recollection of this incident. Upon questioning, she was able to identify the nature of the cuts and grazes and the treatment that she applied to the wound and to fill out many other incidental matters about the events, which gives the Court confidence in her evidence and engenders distrust in Ms Wilson's self-serving and unpersuasive evidence on the issue.
10. One aspect of Mrs Drysdale's evidence on the oyster incident was quite arresting. When Mrs Drysdale was attending to the deceased's wounds, the deceased was mumbling to Mrs Drysdale, describing Ms Wilson as, "that fucking thing". No doubt this was as a result of his having just been hit by her but it shows the depth of his antipathy at that moment.
11. Mrs Susan Jones confirms Mrs Drysdale's evidence. Her account supports the inference that something probably went badly wrong in the relationship within a few years after the engagement. Mrs Jones is quite clear, and I accept (apart from the precise time she gives of this occurring 12 months after the deceased told her in 2008 of the engagement), the deceased came into the store and said to Mrs Jones words to the effect, "Please don't let Tracey put anything on my account. We have split up".
12. Mrs Jones also says, and I accept, that after that date she did not book any of Ms Wilson's purchases onto the deceased's account. Importantly she is also clear that Ms Wilson did not ask to put anything on the account after this conversation took place. I infer that Ms Wilson accepted without protest to Mrs Jones that she had lost the status of a person who could draw on the deceased's store credit as a domestic partner might do without question.
13. Mrs Jones' husband, Mr Trevor Jones confirms this change in Ms Wilson's credit status at the Kiah General Store. He was the co-owner of the store with Mrs Jones. He had other business interests. He would only relieve at the store from time-to-time. He became familiar with the customers at the General Store, including the deceased.
14. Mr Jones' says that at some time during 2010, and I accept, that the deceased came into his store and said to him, speaking of Ms Wilson, "She hit me in the head with a rock. Don't let her book anything up to me anymore. We're not together anymore". This must have been at the same time as the deceased gave a similar instruction to Mrs Jones. But I prefer Mr Jones' timing of this event in about 2010 to that of Mrs Jones. But in my view this was probably not an isolated incident and the relationship was already unravelling in 2009.
15. There were probably many explanations for the break up of the relationship between the deceased and Ms Wilson. But in my view these instructions to Mr and Mrs Jones record the moment that the deceased decided to take a firm step back from the relationship. He had been mulling over Mrs Drysdale's good advice for some time and he finally made a decision. Ms Wilson is prone to violent outbursts. She has a heavy habitual intake of alcohol. In my view she is not at times capable of controlling herself. It is likely in my view that one of these incidents got out of hand in about 2009 or 2010 and she severely assaulted the deceased, who realised that a continued relationship between himself and Ms Wilson was impossible.
16. Mr Jones went further, later. He was perhaps more inquisitive than some would be. He knew the deceased well. He wanted to be sure of the status of the Porada - Wilson relationship. He needed the information for business purposes. He recalls, and I accept, that by October 2013 from what he observed and had been told, that he had doubts about the continuity of the deceased's relationship with Ms Wilson. So he asked the deceased directly, "Are you with Tracey Wilson?"
17. He got an immediate and unqualified answer, "No. We are not together as a couple". I accept Mr Jones account. And I accept that when speaking to Mr Jones the deceased was accurately describing the then true state of his relationship with Ms Wilson: the deceased himself did not consider them a couple.
18. In about 2014 Mr Jones returned to the issue. He again sought reassurance about Ms Wilson's status in the operation of the store's accounts. He said to the deceased, "Is she allowed to book up stuff again?" He got a firm answer back from the deceased: "No way. Never going out with her again". I accept that the deceased was here giving an accurate description of his relationship status with Ms Wilson.

From the End of the Relationship to the Deceased's Death

1. But exiting this relationship was easier said than done for the deceased, particularly when Ms Wilson was determined to stay in contact and to continue to take the benefit of her friendship with the deceased, a friendship that served her well in practical and financial terms.
2. In my view there was more to their relationship than the somewhat dismissive statement of the defendant's witnesses - that they were "just drinking buddies". They continued as cautiously friendly neighbours, who helped each other out. And they had the closeness and mutual understanding of people who had once been in an intimate relationship and still had a level of personal friendship. But this should not be mistaken for a continuation of their de facto relationship.
3. Many different witnesses attest to the state of relationship in the last five years of the deceased's life. Their evidence is surveyed below. I prefer the account of the witnesses called by the deceased's family on this question.
4. Mr Heath, who was called in Ms Wilson's case, says that about the time that Ms Wilson moved into her own property at Pericoe in about 2011 that Mr Heath's partner Susan became ill. She died in June 2013. So he moved away to Queensland for a few months and returned to New South Wales in early December of that year, 2013. He says that, at Ms Wilson's and Peter Porada's invitation, he arrived in mid-December and stayed at Ms Wilson's place. He says this was convenient for both of them. The deceased was working full-time on day shift and then on night shift, and said to Mr Heath that it was good to have someone to help with jobs around Tracy's house.
5. I accept that this happened and that the deceased did tell Mr Heath that it was good Mr Heath was staying with Ms Wilson to "have someone to help with jobs around Tracy's house". But I do not accept that the deceased was ever involved in deciding who could stay at Ms Wilson's house.
6. Mr Heath says that all of them would have meals at "Tracy's or Peter's places every weekend". Whilst I am not persuaded that it was as often as this, I do accept some of Mr Heath's account that Ms Wilson and the deceased did gather on weekends from time to time at one another's places even after 2013. They were still neighbours and they remained friends. Indeed, Ms Wilson was with the deceased at the time he died on such an occasion. There clearly was some continuing understanding between them to gather from time to time for social reasons.
7. The events immediately preceding the deceased's death strongly infer this. The deceased died in the surrounds of the Chip Mill house during a barbecue at Easter 2015. As an employee of the Chip Mill, he was entitled to ask his employer to use this venue. None of Ms Wilson's other friends were in a position to do this for her. The deceased probably did so. To this extent I do accept the evidence of Ms Wilson and the witnesses called in her case: that the gathering of the Chip Mill that night was preliminary to organising her 50th birthday party. The deceased was probably a moving force in arranging this event.
8. But his friendship to her was always clouded by caution because of her unpredictable behaviour under the influence of alcohol. Other background factors are hard to assess but also cannot have helped their relationship: they were his guilt over Ms Ferguson's suicide; and the traumatic aftermath of their discovery of the bodies of the Bell children.
9. These findings are only consistent with a continuing co-operative friendship with a degree of social engagement. Assessing the Porada-Wilson relationship from 2010 on this basis explains much of the contradictory evidence about this period.
10. The deceased did not fully disengage from Ms Wilson but continued this friendship. Her friends and ultimately her witnesses interpreted this as a continuation of their intimate relationship. But other people in whom the deceased confided and who witnessed some of the less pleasant interaction between the deceased and Ms Wilson saw that the intimate relationship had finished but some degree of contact, some of it quite unpleasant, continued. But the deceased was a tolerant man and he did not take steps to exclude Ms Wilson from his life entirely.
11. Mr Heath's observations continued into 2014/2015. He assessed them as living in different places at that time but on the following terms: "by 2014 I could see that Tracy and Peter liked to live at their own properties but both required each other's company and sharing and love". I do not accept they were in love in 2014/2015.
12. Mr Heath visited family in Victoria in June 2014. When he was away Ms Wilson lost her licence. So by telephone he made an arrangement with Ms Wilson that when he got back he would help her out by driving her children to school.
13. He volunteered. Mr Heath was a good friend to Ms Wilson. He looked out for her interests. And Mr Heath says that the deceased told him that the deceased was pleased that Mr Heath could drive the boys to school, because the deceased was not able to do so due to his work commitments.
14. Much of this can be accepted in my view, but is not evidence of a de facto relationship. Ms Wilson and Peter Porada's friendship continued after their de facto relationship ended, which in a remote area like Pericoe, is necessary.
15. Ms Wilson had other intimate relationships after 2010. Ms Wilson shared intimate details of her relationship with the deceased with Mrs Drysdale. At first this might be thought to prove the depth of her relationship with the deceased. But Ms Wilson also shared with Mrs Drysdale intimate details of her personal relationships with at least four other men. It is not necessary to name these individuals or detail the relationships. But the Court is satisfied that Ms Wilson admitted these other relationships to Mrs Drysdale. I infer from Ms Wilson's admissions to Ms Drysdale that these relationships took place, notwithstanding Ms Wilson's denials.
16. I also infer from these admissions Ms Wilson made to Mrs Drysdale that Ms Wilson had a relationship in 2012/2013 with another man that lasted for approximately nine months. I accept Mrs Drysdale's evidence that Ms Wilson said to her of this man, who was not the deceased, "I am now living with a guy". I infer Ms Wilson had such a close relationship in 2012/2013. It is a struggle to reconcile this with her claim of a continuing post 2010 de facto relationship with the deceased.
17. Although all relationships are different, Mrs Drysdale expected to see some outward expression of physical affection between Ms Wilson and the deceased if they were partners in life. But she says, and the Court accepts particularly of the period from 2010, that the deceased and Ms Wilson fought constantly and were never openly affectionate towards one another.
18. In a phrase which was reprised throughout the proceedings and in submissions, Mrs Drysdale described the deceased and Ms Wilson as merely "drinking buddies". I accept this statement as quite an accurate description of part of their relationship from 2010, but as indicated earlier in these reasons, it is unfair as they were also good neighbours to one another.
19. Mr Anthony Harris, known locally as "Ned", knew the deceased for about seven or eight years before he died. Peter Porada was his neighbour, and I accept, was a good friend to Mr Harris.
20. Mr Harris made acute observations about the deceased and Ms Wilson. He concluded from his observations, which he detailed in his evidence, that he did not believe there was any ongoing personal relationship between them.
21. Some of his basis for this conclusion is that he was aware that Ms Wilson had a number of male friends during that period, which must be the years between about 2010 and the deceased's death in 2015. He was not conscious that Ms Wilson was living with Mr Porada at the time of his death. He partly infers this from what happened at visits that the deceased made to his, Mr Harris', house in Fulligans Rd, Pericoe. If the deceased came over to Mr Harris' place then Ms Wilson would come over, he presumes, having seen Mr Porada's utility at Mr Harris' house.
22. But on these occasions once Ms Wilson had come over what Mr Harris describes occurred, and which I accept happened, is generally inconsistent with any continuing personal relationship between the deceased and Ms Wilson. Mr Harris observed Ms Wilson being verbally abusive to the deceased. Over a period of some 12 to 18 months on a number of occasions, if the deceased had not left Mr Harris' property or complied with her other demands, she would physically punch and push him.
23. This deeply offended Mr Harris. It was quite clear from the way he gave evidence that he regarded Ms Wilson's behaviour as a personal affront, humiliating to the deceased and something which he was not prepared to tolerate happening in his presence. In substance he regarded this as a form of domestic violence to which he was not prepared to turn a blind eye. Due to Ms Wilson's abusive behaviour Mr Harris warned her that she was not welcome on his property. She complied with that order and did not attend the property. I accept all of his evidence as to this.
24. There are strong differences in the evidence of Ms Wilson and Mr Ned Harris. Where these differences exist I prefer Ned Harris' evidence. Ms Wilson says that she has never been to Ned Harris' place with the deceased. But I accept Mr Harris' evidence that Ms Wilson has been at his house about half a dozen times by herself and on many occasions with the deceased after she had heard the deceased arriving at Mr Harris' property with his utility and his dogs.
25. There was a strong difference between what Ms Wilson and Mr Harris say about an incident at which they were both present and during which Sheena Mitchell, another local resident, assaulted Mr Harris. I prefer Mr Harris' account of this incident although the details of it are not material to the issues in these proceedings. But at the end of the incident Ms Wilson alleges that Mr Harris threatened her with a firearm. But I accept Mr Harris' denial that he did so. And I accept that he does not own any guns and that there is no basis for Ms Wilson to be "scared of Ned", as she claims to be. He is not biased against her.
26. Ms Wilson denies Mr Harris' evidence that the deceased visited Mr Harris' home on many occasions on his own and without Ms Wilson. But I prefer Mr Harris' evidence on this that the deceased did visit, an account which is well supported by photographic evidence showing the deceased in a very relaxed poses at Mr Harris' house, on a number of different occasions. And Ms Wilson is hardly in a position to deny that the deceased visited Ms Wilson without her.
27. Ms Wilson paints a picture of tension between Ned Harris and the deceased, Mr Harris threatening the deceased with guns, conflict over Ned not keeping his dog under control and Ned apparently deliberately damaging the deceased's utility. I do not accept this picture is accurate. I prefer Mr Harris' evidence over Ms Wilson's evidence on all these matters.
28. Mr Jones also described Ms Wilson's and the deceased's relationship. To his observations, they had not been engaged as a couple for the last five to six years of his life. Mr Jones accepts that he saw a ring on Ms Wilson's finger after the deceased gave it to her in about 2008 or 2009 but he did not believe, and I accept his evidence on this, they were engaged after 2010 or 2011. He did not go to any engagement party for them. To his observation, which I accept, Ms Wilson did not again wear a ring on her wedding finger until after the deceased died.
29. I accept Mr Jones' evidence that by the time he died Peter appeared to be wary of Tracey. He did try from time to time to avoid her. For example, he would shower at Ned Harris' house, parking his car behind Ned Harris' house so that Ms Wilson could not see him.

The Deceased and Ms Wilson's Children

1. Mrs Drysdale identified an important part of the deceased's relationship with Ms Wilson. He had "a soft spot" for her children, in particular her youngest child Lachlan. The deceased had no children of his own. As a kindly man, his affection for her children was quite understandable. He shared with Mrs Drysdale from time to time his feelings on this: "I feel concerned for Tracey's kids and worry about them".
2. Ms Walton has only been a friend of Ms Wilson for about three years and during that time she says that she saw Ms Wilson and the deceased as a couple and thought that they were "very much in love" but she separately observes that it appeared to her that "Pod was very much in love with Tracy's children and always treated them well as though they were his own". Ms Walton says that the deceased had visited her home together with Ms Wilson and the children many times "as a couple" and that almost every weekend they would be either at the deceased's or Ms Wilson's place to visit.
3. By the time Ms Walton gave evidence she had known Ms Wilson for about five years and definitely three years before Peter Porada died. According to Ms Walton's observations they were was a lot of cooperation between Tracy and the deceased but because Ms Wilson's property was not big enough to allow her children to ride motorbikes they went to Peter Porada's larger property.
4. In my view this part of Ms Walton's observations are correct, that the deceased did have a good relationship with Tracy's children, ultimately a far simpler one than he had with her.

The Day of the Deceased's Death

1. Mr Heath says that he left Ms Wilson's house on the morning of Good Friday, the deceased having stayed with Tracy overnight on the Thursday night. They all got to the Chip Mill staff house and were having a good time with a barbecue. I accept Mr Heath's evidence that later in the evening the group were talking around the barbecue area and that there was an argument between a number of the people there. I accept Mr Heath's evidence that this argument caused the deceased some distress as he had to intervene to try and calm the arguing parties down.
2. By all accounts, including Mr Heath's, the deceased stumbled and fell over and hit his head later in the evening. But the fall was not apparently the event that led to his death, it was more just a consequence of his collapse. I accept Mr Heath rang the emergency number, 000, and tried to comfort Ms Wilson and her boys.
3. Ms Hallinan recalls that Ms Wilson organised a 50th birthday party for the deceased at her home for approximately one hundred people at her expense.
4. Ms Hallinan and her husband John were invited to join a number of friends for Tracy's birthday at the Chip Mill house. This was a pre-celebration for Ms Wilson's 50th birthday party.
5. Ms Walton was also there the night that Peter Porada died. I accept her evidence that he was quite proud that he been able to secure the Chip Mill house for them all and that the intention of the evening was to discuss preparations for Ms Wilson's 50th birthday party. The booking and the occasion were to celebrate Easter as well. Mr Heath too was present at the time of Peter Porada's death.
6. Ms Walton recounts, and I accept, that the deceased had prepared the catering for this occasion, had purchased most of the food and secured some hats for everyone and sweets for the children.
7. The deceased's death on such an otherwise happy occasion was quite traumatic for Ms Walton and she gives a compelling account of how upset Ms Wilson was that night.
8. Ms Walton says that when the deceased died, that Ms Wilson was cradling him and was with him until the ambulance arrived. I accept this is correct. The reality was that Ms Wilson was probably the closest person to the deceased there among the friends present at the time that he died.
9. Ms Wilson received condolence cards after the deceased's death. But these are consistent with she and the deceased being seen as good friends with one another by many people in the community. But they are not unambiguous indicators of a continuing de facto relationship between them up until the time of his death.
10. Ms Hallinan also records the fact that straight after the deceased's death Ms Wilson's boys needed counselling, because they were there when he died. I accept that seeing someone so close to the family dying suddenly in front of them would have been confronting. But it does not indicate more, in my view, than that the deceased remained close to Ms Wilson's family, especially the boys, right up until the time of his death. Ms Hallinan says that she has "seen a decline in Tracy" since Peter Porada's death and she believes "that Tracy is lost and insecure without her soul mate Peter". I do not accept that at the time that Peter died that he and Ms Wilson were "soul mates", from his perspective at least.

Aftermath of the Deceased's Death

1. Mr Heath along with many others attended the deceased's funeral and then his internment at Toowoomba cemetery.
2. There was a strong contest about what happened at Pericoe Farm immediately after the deceased's death. The Court does not have to decide all of these contested matters as they do not bear directly upon the issues. But the range of this evidence is recounted here together with some findings. In my view the wide differences between the parties on these fairly peripheral issues is largely to be accounted for by the highly emotionally charged atmosphere straight after the deceased's death and before his burial.
3. Ms Wilson gives an account of what happened at Pericoe Farm on 4 April 2015, just after the deceased's death. She says that the deceased's brother, Manfred, and his wife immediately commenced to remove items out of the property from the day they arrived until the day they left three days later. She says that she did not stop them as she was too upset and devastated by Peter's death which was so unexpected.
4. She says that Manfred also attended her home and removed the deceased's utility and motorbike, making her feel as though she had no choice in the matter so she did not try and stop him. She says that she does not know what happened to all these items. She claims that some of the items that Manfred took from the house actually belong to her and her children. But she says that soon after the funeral the farm was chained and padlocked.
5. Mr Heath witnessed the removal of material from the deceased's property the day after the deceased's death. From his perspective he says he witnessed a substantial amount of the deceased's and some of Ms Wilson's property being removed by members of the deceased's family from the property. Mr Heath was suspicious of family removing material from the house, particularly Manfred Porada and his wife and a number of other helpers. Mr Heath says that although they said that items such as the antique Indian motorcycle were being put in storage and the utility, Mr Heath did not believe them.
6. Ms Walton was also present at the deceased's house when Manfred and his wife were there after deceased's death. Ms Walton's view was that "they were just rifling through the place and taking whatever they could". She says that, "their behaviour was disgusting and it was making Tracy upset".
7. She complains that she was treated badly when she was there and that they simply had no idea that she was also a friend of the deceased's and was there just to support Tracy who was "just walking around on autopilot". I accept that Ms Walton was herself quite upset about the deceased's death.
8. Ms Walton confirms that one of the items that Ms Wilson collected herself that day was the pizza oven and that Ms Walton and her husband assisted that being put into the back of the car.
9. Of the witnesses who gave evidence about the events of 4 April 2015, Mr Jones is in my view the most reliable, and it is set out here. I accept Mr Jones' evidence that he only found out about Peter Porada's death early in the morning of Saturday, 4 April 2015 from Ms Wilson and a friend. He said, and I accept, that Ms Wilson said to him at the Kiah General Store that morning, "I'm going out to the farm to collect the bikes and put them in a shed at my friend's place at Nethercote". He stopped her and said "don't go out now, I'll come with you tomorrow morning and pick them up". As Mr and Mrs Jones were working in the shop together that day he could not go out with Ms Wilson and collect them immediately.
10. The next morning Mr Jones did go out to Ms Wilson's home. But by 7.30 to 8am he said, and I accept, that Ms Wilson was affected by alcohol.
11. At Ms Wilson's house, Mr Jones loaded the Indian Chief '44 bike onto his trailer and then suggested that they go "down to the farm" meaning the deceased's place. Ms Wilson was accompanied by a friend of hers, Cathy Day and another gentleman.
12. When they arrived at Pericoe Farm Ms Wilson was able to unlock the gate to the farm with a key. This surprised Mr Jones, who thought that only Mr Harris and the deceased had a key to the gate. Although Ms Wilson having the key on this occasion might perhaps suggest it was entrusted to her by the deceased, that is not the only inference available from her having the key. Her possession of it is consistent with allowing her conveniently to have neighbourly access and does not cause the Court to doubt the evidence of the other witnesses that the relationship between the deceased and Ms Wilson had by then ended.
13. When Mr Trevor Jones arrived at the property he loaded the deceased's other two bikes onto his trailer, the 1929 120 Harley and the 1926 Indian Scout. This took him some time because the bikes were not operational and had to be pushed onto the trailer by hand.
14. Mr Jones noticed that while he was loading bikes onto the trailer Ms Wilson and her friends, Cathy Day and a man from Towamba, were about 300 yards away from him parked outside the deceased's house. I accept his evidence that they were constantly loading items from the deceased's home into her car and were doing so for about three to four hours that morning. At about 11am to 12 noon the man left and Ms Wilson and Ms Cathy Day remained. But they continued to empty the house and load the deceased's belongings into her car.
15. The result was that Pericoe Farm was as Mr Jones described "trashed" after she had "finished throwing everything into the car". I accept Mr Jones' evidence as to this. I also infer that from the photographs taken on the day and attached to his affidavit.
16. Mr Jones was unhappy about how much material Ms Wilson was removing from the property and said to her "You can't do this. This is illegal". She responded to him "I can do what I like. This is my stuff and I can take it if I want to." He could see that she was removing a guitar, books, clothes, chainsaws and a pizza oven.
17. Mr Jones was sufficiently concerned about this that he rang the deceased's brother, Mr Manfred Porada. By that stage Manfred had already heard of the deceased's death and was driving down to Pericoe Farm. He was then in Canberra and anticipated arriving between 2pm and 3pm that day. I accept Mr Jones' evidence, which is supported by Manfred's own account, that Manfred asked him to stay at the deceased's house until Manfred arrived. Mr Jones did that by waiting in his truck until Manfred's appearances at the property.
18. A number of items are missing from the deceased's property, including some bikes and a water tank. But since Peter Porada's death a number of people have visited the home and caused greater disorder there. The recovery of these items will be a matter for the administration of the estate.
19. As earlier indicated, Ms Wilson accused Manfred and his wife of taking material away from Peter's place. But I accept their denial of this. And I accept Mr Jones' denial that he saw any such removal and indeed that Manfred Porada's Mazda motor vehicle was even capable of towing a trailer, as it was not equipped with a tow bar.

The Deceased's Relationship with his Family

1. The plaintiff paints a picture of the deceased having poor relationships with his family. She mentions each of his siblings in this context. But Ms Wilson does at least concede that the deceased had affection for his siblings' children, his nieces and nephews.
2. I do not accept that Ms Wilson had much fundamental insight into the deceased's relationships with his siblings. Ms Wilson does not appear to be a particularly intuitive person. She was not attuned to the deceased's other family relationships. In my view, she just screened them out because they did not have any immediate impact on her life, or her relationship with the deceased. She is not the kind of person who would seek out the deceased's relations to make contact with them, so as to please him. Instead, in her evidence she painted them as hostile forces.
3. Ms Wilson describes the deceased's sister. But she uses the name "Ursula" for her. This is plainly a wrong appellation for Edelgard. It is difficult to understand how Ms Wilson could have mistaken her name. The best explanation is that she was just not interested in the deceased's wider family. She claims that Peter Porada had not spoken to his sister "for many years but I was never told the reason for this". I do not accept this and I place little weight on any of Ms Wilson's evidence about the deceased's family.
4. Ms Wilson claims that the deceased's relationship with his oldest brother, Hans Porada, was poor. She says that Peter never spoke to him in the years they were together and that Hans tried to put Pericoe Farm up for sale behind Peter's back. She says that Peter told her that he and Hans had "come to blows" and that he had bought Hans' half share in Pericoe Farm from Hans and "never spoke to Hans again". She attempts to bolster her account of ill feeling between the brothers by saying that when she and Peter attended a family wedding together that Peter did not even go over and speak to Hans.
5. All this evidence is a regrettable distortion of Hans' relationship with Peter. Whilst there were many reasons that Hans and Peter might not be particularly close siblings, not least of which was the fact that they lived a long distance apart, in my view, having seen Hans give evidence, I accept that he had a good relationship with the deceased and one, which it is extremely unlikely was marked by the near violence at which Ms Wilson hints.
6. Hans Porada shared with his brother Peter and Manfred many common interests. For example, they had common interests in motorcycles and fishing. Hans shared all his motorcycles with his brother Peter. And Peter was a groomsman at Hans' wedding to Hans' wife Rhonda. When their father had a life-threatening stroke in 1976, Hans came home to Eden at night to take Peter up to Sydney Hospital in Macquarie Street where their father had been admitted for emergency care.
7. In their early years, Hans looked out for his younger brother Peter. For example, Hans consoled Peter after he had had a motor vehicle crash and destroyed the family's car.
8. Hans studied and worked in the United States for a period. Upon Hans' return from the US, he became a senior officer within TAFE New South Wales, liaising with industry. Hans and his wife Rhonda needed help to move their possessions from Eden to their house in Sydney. Peter Porada readily assisted in this.
9. Peter and Hans co-operated in many different ways over the years, ways that Ms Wilson did not seem to understand. One of these was the family farm, Pericoe Farm that their parents had built up over a long time. Peter asked Hans if Hans would become a half partner in Pericoe Farm, rather than allowing it to go to auction sale. Hans agreed and both he and Peter bought the quarter share in the farm owned respectively by their siblings Edelgard and Manfred. Peter and Hans agreed that if their partnership did not work they would sell the farm at auction to ensure, as Hans explained, that no one partner could force out the other.
10. But not long into the Hans-Peter partnership the deceased formed his relationship with Claire Ferguson. Peter approached Hans and asked if Hans would sell him half the property. But Hans reminded him of the agreement that in order to dissolve the partnership they would need to auction the property. This caused temporary friction between Peter and Hans. But they resolved it in a brotherly way. Hans ultimately agreed to sell Hans' half share in the property to Claire Ferguson, which happened in August 1996.
11. Hans denies, and I accept, that he and Peter ever came to blows over this issue. Quite the contrary, the issue of the farm partnership showed just how sensitive Peter Porada could be to the feelings of his family. He actually telephoned Hans' wife Rhonda prior to his forming the farm partnership with Hans, to make sure it the venture was okay by her. It was.
12. Hans accepts that although Peter and he communicated infrequently they always communicated on family matters, especially in regard to their aunts, uncles and cousins in Germany, to many of whom Peter Porada was particularly close. After Hans and Rhonda visited Germany they were able to convey information about these relatives to Peter, who I accept was very interested in them.
13. Hans gave a sound brotherly assessment of Peter's character. He accurately described him as a not very gregarious person, who limited his discussion about family matters to things of direct and immediate import. But Peter was always pleased to see his family including his nieces and nephews, even though he rarely contacted them. For example Hans says, and I accept, that the deceased was interested in the progress of Hans and Rhonda's son Christopher and their daughter Katrina.
14. As to Manfred, Ms Wilson claims that Peter only spoke to him once or twice a year and did not have a close relationship with Manfred. She says that Manfred never visited the deceased and that to the best of her knowledge the first time Manfred visited the farm was the day after the deceased's death.
15. But Hans judged Peter to be very close to Manfred. I accept this evidence over Ms Wilson's account of a distance between the deceased and Manfred. I accept the deceased and Manfred often spoke together about restoring vintage motorcycles, as they shared a common trade in mechanics.
16. Mrs Drysdale too was firm in her opinion, which I accept, that the deceased "adored his brother Fred" (Manfred). She said that he would "often talk about Fred and would get emotional about it". The deceased said to Mrs Drysdale, "my dream is to visit Fred in Queensland. However I am scared to drive there because of the alcohol". The deceased drank fairly heavily. The deceased's wish to visit Manfred in Queensland was such a given assumption in conversation between the deceased and Mrs Drysdale that when he expressed to her his frustration with Ms Wilson, Mrs Drysdale would look at him and sing a line from the song "On the Road Again", metaphorically referring to a possible trip for the deceased to visit Manfred.
17. Mr Jones too speaks warmly of the deceased's relationship with his brother Manfred. He says, and I accept, that he witnessed Manfred and his wife Jane visiting the deceased at his home twice in about the four or five years before his death. He recalls that Manfred used to go to bike shows in Bombala with the deceased and he would bring down the deceased's bike. Manfred and Peter had twin bikes. The deceased's was the "J" model with headlights and Manfred's was the "L model" without headlights. Mr Jones would often joke with the deceased about the bikes. The deceased would say to Mr Jones "Leave your Naughton to me in your will?" And Mr Jones would reply "Only if you leave me the Harley". To this Peter would always respond "Nar, that's already going to Fred".
18. Mr Jones would often ask Peter Porada about his brother, "How's Fred going?". And he would get a positive response, "He was alright the last time I spoke to him a couple of months back". I accept there was nothing in the way the deceased spoke about Manfred to Mr Jones that gave him any cause for concern about the quality of their relationship as brothers.

Mr Ned Harris and Mrs Drysdale

1. Ms Wilson mounted a strong attack on the credibility of two witnesses called in the case against her: Mr Harris and Mrs Drysdale. Both attacks on the impartiality of these witnesses wholly failed. But it is necessary to deal with them separately in this section.
2. Ms Wilson described Mr Ned Harris as hostile to her and therefore not credible. The plaintiff describes two incidents with Mr Ned Harris.
3. On one occasion Ms Wilson says she drove to Mr Harris' house and was confronted by Mr Harris pointing a sawn off shotgun towards her. When he asked her what she wanted, she relayed a message from one of his friends to him: that the friend was not able to get through to him by telephone. Ms Wilson says she felt very scared and did not know whether Mr Harris would shoot her or not, so she returned to her car with Mr Harris pointing the gun at her. She says as a result of this incident she has never returned to Mr Harris' property again and has since felt frightened of him.
4. I do not accept that Mr Harris pointed a gun at Ms Wilson as she claims. Nor do I accept that she has any reason to be intimidated by him.
5. The plaintiff recounts other incidents of alleged hostility between Mr Harris and the deceased, detail of which the Court does not have to consider. Whatever be the facts with these other incidents, they appear to be nothing more than the mild disagreements, misunderstandings and misaligned expectations of the type that happen in all human friendships from time to time and which are not indicative of deep enmity or hostility.
6. It was suggested in the plaintiff's case that Mrs Drysdale was a partial witness, who showed disfavour to Ms Wilson. But in my view she had no such bias.
7. Mrs Drysdale was quite different from all the other witnesses in the proceedings. She had something of an outsider's perspective. She had grown up in Berkshire in England and migrated with her husband to Australia in the late 1960s. She and her husband divorced and she moved to Pericoe in about 1995. She had never lived in the bush before and brought a different outlook to some of the affairs of this local area.
8. Mrs Drysdale is a qualified physical and intellectual disability services officer. After her daughter and son left school she continued to work in that field full time. In the witness box she showed a degree of professional detachment and good judgment consistent with her professional background.
9. Mrs Drysdale also had a strong sense of fairness. She initially did not want to become involved in the proceedings. She only decided to do so after reading Ms Wilson's affidavits and deciding that she really had to correct the wrong impression she thought that they conveyed. Both the manner in which Mrs Drysdale gave evidence and the manner in which she came to volunteer to come forward as a witness are indicators of her veracity.
10. Mrs Drysdale knew the deceased for 20 years, from the time she moved to Pericoe in 1995, until he died in 2015. For the first ten years she did not see him very often. But after then she came to know him much better they became friends.
11. She says, and I accept, that she would regularly see the deceased when he delivered the wood that she had purchased from him. He would occasionally stop by her home for a social visit. On a few occasions she went to the deceased's home for a barbecue where he would cook mussels and oysters for her. Mrs Drysdale did not know Ms Wilson until after she moved to her current home, just down the road from Mrs Drysdale. She would converse with Ms Wilson, both with and without the deceased.
12. Mrs Drysdale was, and is, quite prepared to maintain an open and cordial relationship with Ms Wilson. She says, and I accept, that Ms Wilson would often call in or visit her and would discuss very personal things about herself, such as her unhappy childhood, her love life and her emotions. Mrs Drysdale found Ms Wilson's discussion of these matters somewhat confronting at times but accepted Ms Wilson as she was: someone more open than many others about her personal life.
13. Mrs Drysdale had always been very welcoming to Ms Wilson. She says, and I accept, that Ms Wilson would stop by uninvited on many occasions with her children. Ms Wilson would bring beer with her and stay all day. Mrs Drysdale said she would often make a snack for Ms Wilson's children to eat while Ms Wilson drank her beer and smoked cigarettes. Mrs Drysdale was fundamentally polite and never asked them to leave, even though she felt burdened by their presence at times, as might well be expected, with uninvited guests arriving on the doorstep.
14. Mrs Drysdale does not drink alcohol regularly. She lives a relatively quiet lifestyle and keeps to herself although she is not unsociable.
15. Mrs Drysdale expressed gratitude for assistance that Ms Wilson gave her from time-to-time. Once when Mrs Drysdale slipped and fell Ms Wilson came to her house at a neighbour's request and checked up on her when the neighbour had not heard from her. Another time when Mrs Drysdale was sick Ms Wilson came and brought wood over to her house.
16. None of this indicates Ms Wilson had a fundamental bias against the plaintiff. I accept Mrs Drysdale's account that what had brought her into the court room was a strong sense of doing the right thing by the deceased who had been a good and loyal friend to her for many years. In so doing, Ms Drysdale had to overcome a degree of concern about Ms Wilson's reaction to what she would say.
17. And Mrs Drysdale was a reluctant witness. She was not keen to give evidence against Ms Wilson. She became alerted by a number of things that Ms Wilson said that there was a dispute about the deceased's estate involving Ms Wilson. Mr Ned Harris alerted her to the issues in a way that expressed his own perspective and has been reflected in the evidence that he has given to the Court. Having seen Ms Wilson's affidavits, Mrs Drysdale decided to come forward.

General Credibility of the Plaintiff and other Witnesses

1. Specific findings have been made about which parts of the evidence of particular witnesses is accepted. But some general observations are relevant to their overall credibility. The observations are subject to the other specific findings and at times rejection of evidence earlier in these reasons.
2. The plaintiff's evidence was vague. She was convinced that she and the deceased were a couple. But she had a poor recollection of many details of their relationship, details one would expect her to recall, were she really in a long-term relationship, up until his death.
3. Mr David Evelyn was generally a good witness who spoke directly about a 25-year relationship with the deceased. He was attempting to tell the truth. But he was only a work friend and never visited the deceased's house and his account was of limited value.
4. Ms Linda Hallinan was a long-standing friend of the deceased. She knew both Ms Wilson and the deceased at home but saw them only about once a year. She saw the deceased and Ms Wilson there at Ms Wilson's home doing domestic activity. She was a reasonably reliable witness but missed the detail of the end of Ms Wilson's and the deceased's de facto relationship.
5. Ms Cathrine Walton only knew Ms Wilson and the deceased for a short period together. But she met them together. She was attempting to tell the truth.
6. Mr Ian Heath needed a hearing aid but could follow the proceedings well. He had the impression that Ms Wilson and the deceased were a couple. He was mostly a good witness. He seemed to have a genuine friendship with the deceased. Mr Heath was a character who spontaneously provided detail of his visits to see Ms Wilson and the deceased. But I ultimately reject his account of a de facto relationship in the last five years of the deceased's life.
7. Peter Porada and Mr Heath talked about mechanical things, not personal relationships. Mr Heath saw Tracey and Peter as a "team". To Mr Heath, they lived separately only because living in the one house was not a practical proposition.
8. Mr Manfred Porada was a detached and laconic individual who answered questions monosyllabically, if he could. He was credible.
9. Mrs Susan Jones was a co-owner of the Kiah General Store. She had a very reliable recollection of her interactions with Mr Porada and Ms Wilson. And her husband Mr Trevor Jones was a blunt, direct and truthful witness. He too was a co-owner of the Kiah Store. He had a good recollection of the detail of events. He could spontaneously call on more detail of events when he needed to give a fuller account of them. He had a good friendship with the deceased and saw him reasonably often.

The Deceased's Estate

1. The parties provided separate, but not widely different, estimates of the approximate value of the deceased's estate. The plaintiff estimates its net value, including notional estate, and less liabilities, as being between $824,156 and $854,157. The defendant says that the entire value of the estate is approximately $800,000.
2. Manfred Porada in his capacity as administrator prepared inventories of the assets of the deceased's estate. The plaintiff has also provided estimates of the estate's assets. The substantial assets of the estate appear to include items totalling (at the low end of the range of estimates given) some $391,551: 1. a half-share in Pericoe Farm with an estimated value of $212,000; 2. funds held on trust by the solicitor, Mr David Griffiths, of over $72,300; 3. approximately $10,251 held in the deceased's bank accounts; 4. according to the plaintiff's estimate, three vintage motorcycles (mentioned earlier in these reasons) with a total value of between $76,000 and $91,000; 5. Home contents at Pericoe Farm with an approximate value of $6,000 (later revised by the defendant to $2,000); and 6. Farm machinery and equipment valued at approximately $15,000 (later revised by the defendant to $10,000 ).
3. Ms Wilson also says in an affidavit dated 13 May 2016 in the family provision proceedings that the deceased also owned some 60 head of cattle, and was owed wages and entitlements by his former employer. The value of these items has been particularised in Manfred Porada's inventory of property and accounts for the funds of $72,300 held in Mr David Griffiths trust account.
4. The estate also has liabilities. In Manfred Porada's affidavit affirmed on 28 May 2016, he says those liabilities total $42,039.16. These relate to a Westpac loan, funeral expenses, land and council rates and other minor outstanding liabilities.
5. The notional estate claim relates to an estimated sum of $411,000 in superannuation held in the deceased's name. The approximate amount of this superannuation entitlement is not in dispute.
6. Thus, subject to the comments above about the value of the motorcycles and the defendant's revised estimates for home contents and farm machinery, the deceased's total actual and notional estate, net of liabilities is approximately $760,511.84 (being $391,551 plus $411,000 less $42,039.16).

"Eligible Person" and "Factors Warranting" Succession Act, ss 57 and 59

1. The applicable legal principles are not in contest. For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an "eligible person" within Succession Act, s 57.

Peter Porada's intestacy and the status of Ms Wilson - Succession Act, s 57

1. The first contest in these proceedings is whether Ms Wilson was a "spouse" of the deceased within Succession Act, Chapter 4 - Intestacy. The provisions of the Succession Act dealing with intestacy define the expression "spouse" of an intestate in Succession Act, s 104:- "104 Spouse A spouse of an intestate is a person: (a) who was married to the intestate immediately before the intestate's death, or (b) who was a party to a domestic partnership with the intestate immediately before the intestate's death."
2. Succession Act, s 105 then defines "domestic partnership" in the following terms:- "105 Domestic partnership A domestic partnership is a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010, or a de facto relationship that: (a) has been in existence for a continuous period of 2 years, or (b) has resulted in the birth of a child."
3. Ms Wilson claims she was in a de facto relationship with the deceased that "has been in existence for a continuous period for at least two years" at his death. Interpretation Act 1987 s 21C governs the Court's assessment of whether or not such a de facto relationship exists.
4. Pursuant to Succession Act, s 106 a spouse is entitled to a "statutory legacy" which is relevantly calculated as a sum of $350,000 together with increases in the consumer price index since the December 2005 quarter: Succession Act, s 106(2).
5. Ms Wilson and the deceased did not have children. Succession Act, Part 4, Division 1 deals with the entitlements of surviving spouses in various situations: including where there is no issue, and where there is issue of the spouse. In those circumstances Succession Act, s 113 defines the respective entitlements as follows:- "113 Spouse's entitlement where any issue are not issue of the spouse If an intestate leaves a spouse and any issue who are not issue of the spouse, the spouse is entitled to: (a) the intestate's personal effects, and (b) a statutory legacy, and (c) one-half of the remainder (if any) of the intestate estate."
6. The statutory legacy at the date of these reasons is $350,000 indexed from December 2005. But there are insufficient assets in the estate to satisfy the statutory legacy, so if Ms Wilson is entitled to the statutory legacy the estate would all go to her.
7. For the purposes of Succession Act, s 57 "de facto relationship" is defined in section 21C of the Interpretation Act 1987, which provides as follows:- "(1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or (b) the person is in a de facto relationship with the other person. Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. Meaning of "related by family" For the purposes of subsection (2), 2 persons are "related by family" if: (a) one is the child (including an adopted child) of the other, or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or (c) they have a parent in common (including an adoptive parent of either or both of them). Subsection (4) applies: (a) even if an adoption has been declared void or is of no effect, and (b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children. Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. "
8. Interpretation Act, s 21C(3) spells out: that no finding in respect of any of the matters in the sub-section is to be regarded as necessary for the existence of a de facto relationship; and further, that a Court determining whether a de facto relationship exists is to have regard to all the circumstances of the relationship and is entitled to have regard to such matters and to attach such weight to any such matter as may seem appropriate to the Court in the circumstances.
9. Ms Wilson does not qualify in the last five years of the deceased's life as his de facto partner. She was not in a de facto relationship with him from 2010. They had a de facto relationship for about six years but the deceased withdrew from it and Ms Wilson had other sexual partners after that. Ms Wilson did have quite strong financial dependence upon the deceased during the de facto relationship until 2010 and I would be prepared to describe their existence as one of a shared household up until that time, but after then the nature of the deceased's visitation to her was as a neighbour and former de facto partner and nothing more.
10. The deceased and Ms Wilson kept their major assets separate. I accept they had a mutual commitment to a shared life at the time of their engagement but the deceased deliberately decided not to go through with a wedding to Ms Wilson. The deceased did assist in the care of Ms Wilson's three children and was a father figure to them particularly during the de facto relationship. But after 2010 it was more out of a sense of residual loyalty to the children that he maintained his relationship with them but he was in no sense caring for them jointly as a parent with Ms Wilson after 2010.
11. I do not accept the deceased was doing household duties generally for Ms Wilson from 2010. And finally, to the people that knew most about the deceased, he confided that the relationship had ended. To the people who knew him less well it might have perhaps wrongly appeared that the relationship continued with a public aspect. But in my view it was fundamentally different and at an end.
12. Accordingly, Ms Wilson does not qualify either for administration of the estate or to the statutory legacy under Succession Act, s 113. The Court will grant administration of the estate to the claimant for administration, Mr Manfred Porada.

Dependence on the Deceased - Succession Act, s 57(e)

1. In my view Ms Wilson would not be an eligible person under Succession Act, s 57(1)(b). Not only can she not prove a de facto relationship for two years; she cannot prove a de facto relationship for any period leading up to the deceased's death. Ms Wilson has failed to establish her claim to be a spouse of the deceased. She is not entitled to the statutory legacy under Succession Act, s 113.
2. In those circumstances Ms Wilson submits that she would be an "eligible person" under Succession Act, s 57(e) and (f).
3. Ms Wilson says that she was a person who was at a particular time "wholly or partly dependent upon the deceased person". She submits that she was partly dependent on the deceased prior to his death. She also claims to fulfil the cumulative requirement in Succession Act, s 57(e)(ii) of being then (at the time of her dependence), or at other times "a member of a household of which the deceased person was a member."
4. Ms Wilson was in my view dependent on the deceased between 2004 and 2009. The Court's findings show this. Many parts of their temporary shared life showed her financial dependence on him: he had full employment and she did not. She had the care of children. He contributed generously to her financial upkeep in this period. And all that time, in my view, Ms Wilson lived in a household with the deceased. In my view, Ms Wilson qualifies as an eligible person under Succession Act, s 57(e) on the basis of an approximately six year long relationship. But this relationship, and any sense they lived together in a household, were over well before he died.

Close Personal Relationship - Succession Act, s 57(f)

1. Ms Wilson alternatively claims she and the deceased were living in a Succession Act, s 57(f) "close personal relationship" other than a de facto relationship. The elements of what qualifies as a "close personal relationship" are not defined in the Succession Act.
2. In the absence of a statutory definition of the concept of "close personal relationship" case law has developed, interpreting predecessor legislation. In Dridi v Fillmore [2001] NSWSC 319 at [102]-[104] Macready AsJ considered the elements that need to present in order for two people to be considered to be in a "close personal relationship" as then defined under a similarly structured but slightly differently worded Property (Relationships) Act 1984, s 5(1), which then used language "a close personal relationship between two adult persons…living together, one of whom provides the other with domestic support and personal care". In Dridi v Fillmore, Macready AsJ said:- "I have earlier referred to aspects of what the Act describes as a "close personal relationship". It has to be between two adult persons who are "living together". Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care". So far as the first requirement is concerned we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together. In the present case this is not important, as it seems that the parties ate together when they were both at home. The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg shopping for both parties, washing clothes etc."
3. There are differences in language between the statutory definition of "close personal relationship" in Property (Relationships) Act, s 5(1) and Succession Act, s 57(f). But because of the Court's findings below they are not of central significance in this case.
4. A common point in all the challenges to Ms Wilson's alternative claims is her and the deceased's living and residential arrangements. The point arises in deciding: not only, whether in her claimed de facto relationship they had "common residence" (Interpretation Act, s 21C(3)(b)); but whether in her claim of partial dependence she "was a member of a household of which the deceased person was a member" (Succession Act, s 57 (e)(ii)); and whether Ms Wilson was "a person with whom [the deceased] was living in a close personal relationship" (Succession Act, s 57(f)).
5. In my view, Ms Wilson and the deceased were, in the alternative to the Court's principal findings, not living in a "close personal relationship" within Succession Act, s 57(f). Many of the elements of a "close" and a "personal" relationship were present here, between the deceased and Ms Wilson but they were in no sense living in such a relationship, as s 57(f) requires, at the time of his death. By then they had reverted to being mere friends.

Do Succession Act, s 59(1)(b) Factors Exist here?

1. The Court has not found Ms Wilson's to be an "eligible person" on the basis that she was in a de facto relationship with him at the time of his death or that she was living in a close personal relationship with him: (Succession Act, s 57(1)(b) and (f)). But her claim to be an "eligible person" is made out on the basis that she had been a dependent member of his household: Succession Act, s 57(1)(e).
2. The requirements of Succession Act, s 59(1)(b) are therefore engaged. So, it is necessary for the Court to determine whether, having regard to all the circumstances of the case (whether past or present) "there are factors which warrant the making of the application". And if there are no such factors, then the Court must refuse to proceed in respect of these bases of eligibility.
3. The question of eligibility here is solely dependent upon Ms Wilson qualifying under Succession Act, s 57(e). This is a case in my view where there are factors which would warrant the making of the application sufficient to satisfy Succession Act, s 59(1)(b).
4. Succession Act, s 59(1)(b) only applies to certain classes of applicants who are not generally regarded as natural objects of testamentary recognition of a deceased person. This suggests that the "factors" referred to are factors which when added to facts which render the applicant an "eligible person" also give the applicant the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased person: see Re Fulop (deceased) (1987) 8 NSWLR 679 at 681 per McLelland J and Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 at 252E. Where persons affected by Succession Act, s 59(1)(b) have the circumstances of their relationship with the deceased set out, it can sometimes immediately be seen that they are persons who would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 at 252E.
5. Here those Succession Act, s 59(1)(b) "factors" exist to warrant giving Ms Wilson the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased.
6. It would be hard to accept that ex de facto partners would generally have the benefit of an inference in their favour of factors warranting. But here the deceased chose to maintain a civil relationship with his ex de facto partner for the sake of the children whose company he clearly enjoyed. Despite the aggravation and anxiety she caused him, he still chose to allow Ms Wilson a place in his life. He clearly consented to her organising social functions with him and having some degree of a life together. She was more than just an ex-partner to him and in my view for this reason there are factors warranting.

Adequate Provision

1. Finally the issue is whether an order for provision should be made in the plaintiff's favour. The test of whether an order for provision should be made out of an estate in any case is set out in Succession Act, s 59(1)(c):- "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
2. There are many judicial statements summarising the operation of this legislation which is often said to include a two-step provision. For example, in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:- "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
3. Whether the two-step test operates with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a clear one on the question of whether or not adequate provision has been made for the plaintiff once he has been shown to be an eligible person.
4. Other authorities explain in greater detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ (as his Honour then was) in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
5. The application of these principles involves examination of a number of specific issues in this case. Preliminary to those issues the Court examines the financial and personal position of the plaintiff.

Ms Wilson's Financial Circumstances

1. Ms Wilson currently receives a disability pension of approximately $1,878.50 per month. I accept Ms Wilson's evidence that her only income is from Centrelink.
2. Ms Wilson owns a property worth approximately $85,000 over which a mortgage of approximately $32,600 is held. She also owns her own vehicle with an estimated value of $8,000. Ms Wilson's evidence is that her net monthly income is $120. She has no superannuation. Counsel for the plaintiff submitted that Ms Wilson struggles to make repayments on the mortgage over her property and is in a state of arrears.

Assessing Ms Wilson's Family Provision Claim

1. As a result of the operation of Succession Act, s 113 the provision made in favour of Ms Wilson by the deceased is inadequate for her proper maintenance, education and advancement in life. She has identified her needs.
2. What provision ought to be made in her favour? The Court is required to take into account the matters set out in Succession Act, s 60. Without specifying particular paragraphs of Succession Act, s 60, the Court's factual findings in these reasons deal with those considerations. But some considerations are of particular prominence in this case.
3. This is plainly not a matter that Ms Wilson should be treated like a widow in the standard identified in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69 and given security of accommodation and a fund to meet unforeseen contingencies. Something like the whole of the deceased's superannuation fund might do this.
4. In my view the proper measure of provision for this plaintiff is enough to relieve her of the uncertainty of paying off her mortgage and to provide a small additional sum to defray her unexpected financial expenses for a limited period of time until her children become fully independent. In my view a figure which will do that will be a legacy in the sum of $75,000.
5. This sum is fixed partly to take into account the fact that Ms Wilson did benefit financially in a substantial way throughout her relationship with the deceased and he was quite generous towards her.

Conclusion and Orders

1. In the result therefore the Court has found that Ms Wilson was not a de facto partner of the deceased at the time of his death or within two years prior to his death and is not entitled to any part of his estate or administration of his estate. But Ms Wilson does qualify as an eligible person under Succession Act, s 57(e) and the Court will make provision for her out of the deceased's estate in the sum of $75,000. The parties are directed to bring in short minutes of order to give effect to these reasons.

Amendments 04 July 2017 - [101] second line, delete "them" and replace with "Ms Wilson and the deceased" [108] second line, delete "Tracey" and replace with "Ms Wilson" [112], second last line, delete "even" and replace with "again" [125] first line, delete "Tracy" and replace with "Ms Wilson" [127] second last line, add comma after "soul mates" [145] second line, change "Peter's" to "Porada's" [146] second last line, comma after "trailer" [154] third line, delete "Peter" and replace with "Hans" [157] third line, add "Porada" after "Peter" [191] third line, delete "is" replace with as being" 192 "trust of solicitor" changed to "trust by the solicitor" [196] fourth line, "760,551.84" changed to "$760,511.84" [203] second line, delete "(see below)" [208] third line, "To people" changed to "To the people" [213] last line, "together" added after "lived" [217] sixth line, delete (1) from s 57(1)(e)(ii) and 57(1)(f) [218], fifth line, add after relationship ", as s 57(f) requires," [219] last line, delete "and (f)" [221] second line, delete (1) from s 57(1)(e) [223] first line, s 57(1)(b) to 59(1)(b) [224] second line, delete "a" and replace with "an inference in their favour of" and delete "inference", and fifth line add "she caused him" after "anxiety" [229] delete "and the other principal beneficiaries of the estate" [230] second line, "add "I accept" and delete "is" [231] delete "to and add "over" [237] third last line, "add (e) after "57"

04 July 2017 - [63] second line, add comma after witnesses [135] first line, delete Tracy and replace with Ms Wilson [167] second last line, delete Ned's and replace with Mr Harris' DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2017