Baldwin v Favre

[2025] NSWSC 345

Supreme Court

New South Wales

Medium Neutral Citation:

Baldwin v Favre [2025] NSWSC 345

Hearing dates:

8, 9 and 10 October 2024

Date of orders:

10 April 2025

Decision date:

10 April 2025

Jurisdiction:

Equity – Probate and Family Provision List – Family Provision

Before:

McHugh JA

Decision:

(1)   Direct the defendant:

(a)   by 5pm on 15 April 2025 to notify each of Louise Anne Gaggin, William “Billy” Stanley Fisher, and Madison Jade Fisher of [308]-[321] of the Court’s reasons; and

(b) by 5pm on 22 April 2025 to inform the Court and the plaintiff whether any of the defendant, Ms Gaggin, Mr Fisher or Ms Fisher wishes to submit that the Court should make an order adjusting the interests of the residuary beneficiaries pursuant to s 66(2) of the Succession Act 2006 (NSW).

(2) In the event that any of the persons identified in order 1(b) so wishes, direct that by 5pm on 29 April 2025 they file and serve submissions not exceeding 3 pages in length on the question whether, and in what terms, the Court should make a s 66(2) order.

(3)   In the event that none of those persons so wishes, direct the parties by 5pm on 29 April 2025 to bring in an agreed form of order (save as to costs) to give effect to the provision I have decided to make.

(4)   Direct the parties by 5pm on 29 April 2025 to file and serve by exchange submissions not exceeding three pages in length on costs.

Catchwords:

SUCCESSION — Family provision — Claim by de facto spouse pursuant to s 59, Succession Act 2006 (NSW) — Whether will made adequate provision for the proper maintenance, education or advancement in life of the plaintiff — Where plaintiff given portable life estate in home shared with deceased — Where plaintiff sought in lieu absolute ownership of other real property in the estate — Where provision inadequate

SUCCESSION — Family provision — Matters in s 60(2) — Other beneficiaries’ competing claims on the estate — Relevance of historical abuse to the nature and extent of obligations owed by the deceased person to beneficiaries — Weight to be given to testator’s judgment

SUCCESSION — Family provision — Whether to exercise power in s 66(2) to make additional orders to adjust the interests of other beneficiaries — Where question not sufficiently addressed in parties’ submissions

Legislation Cited:

Succession Act 2006 (NSW), ss 31, 57, 59, 60, 66

Property (Relationships) Act 1984 (NSW)

Cases Cited:

Bassett v Bassett [2021] NSWCA 320

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Curran v Harvey [2012] NSWSC 276

Elliott v Elliott (Supreme Court (NSW), 18 May 1984, unrep)

Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178; (2016) 15 ASTLR 402

Luciano v Rosenblum (1985) 2 NSWLR 65

Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327

McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566

Page v Page [2016] NSWSC 1218

Sgro v Thompson [2017] NSWCA 326

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Williamson v Williamson [2011] NSWSC 228

Category:

Principal judgment

Parties:

Florencia Baldwin (Plaintiff)
Nerida Jean Favre (Defendant)

Representation:

Counsel:
C Birtles / C Harris (Plaintiff)
M Hall / H Rogers (Defendant)

Solicitors:
Mullane & Lindsay Solicitors (Plaintiff)
Turnbull Hill Lawyers (Defendant)

File Number(s):

2023/328560

Publication restriction:

Orders made with respect to certain evidence pursuant to s 7(b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the ground in s 8(1)(e).

JUDGMENT

1. McHUGH JA: The plaintiff, Florencia Baldwin (also known as Rosabelle), was for over two decades the de facto partner of the late William “Bill” Harvey Fisher (the Deceased), who died on 30 April 2023. She seeks an order for family provision from his estate pursuant to s 59 of the Succession Act 2006 (NSW) (the Act).

2. The defendant, Nerida Jean Favre, is one of the Deceased’s daughters and the executrix and one of four equal residuary beneficiaries under his Will (the Will).

3. The plaintiff brings her claim in circumstances in which (1) the Will provides for the plaintiff to have a “portable” life interest in the house in which they both lived at Pindimar, on the Central Coast in New South Wales (Pindimar), and (2) the Deceased directed that the plaintiff receive a substantial superannuation benefit. The focus of the case is Pindimar; there is no complaint about the superannuation.

4. The plaintiff claims that the Will failed to make adequate provision for her proper maintenance, education or advancement in life by leaving her a life interest in Pindimar, rather than an absolute devise of the Deceased’s apartment at Breakfast Point, in Sydney (Breakfast Point). Expressed in summary terms rather than the precise language of the statute, that claim has two basic elements.

1. First, that the home that the Deceased should have left to the plaintiff is Breakfast Point, rather than Pindimar.

2. Secondly, that the Deceased should have given the plaintiff an absolute devise of that home, rather than a portable life estate in it.

5. I accept the first element, but not the second.

6. I am satisfied that adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the Will, such that the power in s 59 is engaged. I have concluded that the Court should order by way of provision out of the estate that a portable life interest in Breakfast Point be substituted for the portable life interest in Pindimar.

7. Important context for the plaintiff’s application and the defendant’s resistance to it is the fact that the Deceased was far from a model father or partner.

8. There was also a large amount of evidence led relative to the issues of substance. This included 6 affidavits made by the plaintiff and 7 affidavits by the defendant. Much of that evidence was not directly concerned with issues of real significance for the disposition of the summons, but rather with relatively peripheral matters to which the other party then responded. The evidence included a large amount of material directed to undermining or supporting the plaintiff’s truthfulness and reliability. In what follows, I have endeavoured to identify and resolve the disputed issues of significance for the disposition of the summons.

9. I have adopted the following structure.

1. Matters of background: the estate, the Will, the plaintiff’s financial position and the provision she seeks.

2. Uncontroversial matters about the plaintiff and her relationship with the Deceased.

3. Events following the Deceased’s death.

4. Credit.

5. Findings on the following contested topics:

1. the 2004 draft Property (Relationships) Act 1984 (NSW) deed;

2. the circumstances in which the Deceased reported the plaintiff to the police in 2014;

3. matters specific to Breakfast Point: the $2,000 deposit; the sales advice; and the plaintiff’s conversations with the Deceased;

4. the 2013 estate planning instructions.

6. The other beneficiaries’ relationships with the Deceased, their financial position and their needs, the detail of which I address in a Schedule.

7. Applicable principles.

8. Whether the provision made in the Will was adequate.

9. What provision the Court should order.

Matters of background

The estate and the Deceased’s superannuation

10. The assets of the estate, estimated to have a value as at 11 September 2024 of about $4.325 million, were as follows:

1. the house and land at Pindimar on the Central Coast with an estimated value (which is agreed between the parties) of $1,550,000;

2. the apartment at Breakfast Point in Sydney with an estimated value of between $1,785,000 and $1,825,000 (on the plaintiff’s case) or $1,900,000 (on the defendant’s case). For the purposes of resolving the issues in this case the parties have not asked me to decide between those figures and I have not found it necessary to do so;

3. an investment account with an estimated value of $759,176.48 (the HUB24 account); and

4. sundry other assets with a value of approximately $116,000.

11. The Deceased also had a superannuation fund in which the plaintiff has an interest entitling her to a pension benefit. As at 13 September 2024 the balance of the fund was $568,993.50. The plaintiff’s evidence was that the superannuation benefit has been paid to her monthly in the sum of $8,184.80.

12. The defendant’s solicitor gave an estimate (on an indemnity basis) of outstanding costs (including counsel’s fees and disbursements) as follows: the defendant’s costs of an unsuccessful application in the Court of Appeal ($50,000); costs of administration ($20,000); the defendant’s costs of defending the family provision application ($68,500); the defendant’s further legal costs of the three-day hearing before me ($66,000); being a total of about $205,000.

13. The estate has a liability for a costs order made in favour of the plaintiff in the Court of Appeal in an amount that has not been assessed. As at 18 September 2024, the plaintiff had paid $13,532 in legal costs. Her outstanding unpaid legal fees and disbursements (which include her costs of her appeal in the Court of Appeal) were estimated as totalling $144,900, and her estimated costs of the hearing were $50,000. The total of those figures is a little less than $210,000.

14. The sum of the defendant’s outstanding legal costs and the plaintiff’s legal costs is thus in the order of $415,000.

The Will

15. The Deceased made the Will on 23 July 2015. Pursuant to clauses 6.1 to 6.7, the plaintiff is given a portable life interest in Pindimar. The mechanism by which the life interest is to be given effect is that the defendant is to hold the Deceased’s interest in Pindimar on trust. The plaintiff has the right to reside at Pindimar for the rest of her life, subject to payment of home expenses. She also has the right to direct that Pindimar be sold and that the proceeds of sale be applied to purchase an alternative property (to be held on the same terms), be used to obtain an interest in aged care accommodation, and/or be invested, with the income payable to her over the balance of her life.

16. The residue of the Deceased’s estate is to be held on trust equally for four primary residuary beneficiaries: the Deceased’s children Nerida Favre (the defendant), Louise Anne Gaggin and William “Billy” Stanley Fisher, and the Deceased’s granddaughter Madison Jade Fisher, who is the daughter of the Deceased’s son Stuart Fisher who died in 2010. For convenience, and without disrespect, I will refer to the beneficiaries as Nerida (or the defendant), Louise, Billy and Madison.

17. Under the Will, upon the plaintiff’s death, her portable life interest in Pindimar is to pass in equal shares to Nerida, Louise, Billy and Madison.

18. It might be noted that under the Will as it stands, the principal assets constituting the residue of the estate available for immediate realisation will be Breakfast Point (with an estimated value of between $1,785,000 and $1,900,000) and the HUB24 account ($759,176.48); i.e., approximately $2.54-$2.66 million. On the assumption (which remains to be tested) that the estate met the legal costs of both parties (totalling about $415,000 as discussed above), the balance after realisation costs should be somewhere in the order of $2.1 million.

19. For present purposes I will proceed on the basis that in the event that the plaintiff is wholly unsuccessful in her application, each of the four residuary beneficiaries will receive a distribution in the near future of at least $475,000 and probably closer to $525,000. Upon the death of the plaintiff at some unknown time in the future they will each also receive one quarter share in Pindimar (or whatever asset the plaintiff has directed the proceeds of Pindimar be used to acquire).

The plaintiff’s financial position

20. In addition to her monthly superannuation pension payment of $8,184.80, the plaintiff receives a monthly Centrelink benefit of $1,666.40. Her monthly expenses are $2,382. The relative modesty of this figure is due in part to the fact that since the Deceased died, the plaintiff has been living at Pindimar, and more recently at Breakfast Point (in circumstances to which I will return below), without paying any occupation fee.

21. As at 18 September 2024, the plaintiff’s assets consisted of furniture and personal items with an estimated value of $5,000; a 2002 Toyota RAV4 motor vehicle with an estimated value of $1,500; a Westpac Choice bank account with a balance of $25,475.63; and a Westpac Life bank account (which the plaintiff said she forgot to include in the list of assets in her 18 September affidavit) with a balance of $5,022.23 as at 31 August 2024. Although the plaintiff was cross-examined about her initial failure to disclose the Westpac Life account, and although there is certainly room to criticise the lack of attention given in the preparation of evidence to these matters, it was not suggested that the plaintiff had any other substantial assets.

The provision sought

22. The plaintiff seeks the following provision:

1. in lieu of the provision made for her to have a portable life interest in Pindimar under clause 6 of the Will, a devise of Breakfast Point to her absolutely;

2. the sum of $25,000 for the cost of a used 2018 Toyota RAV4.

23. In light of the substantial superannuation benefit that she receives, the plaintiff does not otherwise seek financial provision from the estate.

24. In summary, the plaintiff founds her claim on the basis that she believed Breakfast Point “was my property” (affidavit of 18 September 2024 at [57]); that the Deceased had made representations to her to that effect; that she does not wish to live at Pindimar where she is remote from her sons, her community and services; and that her relationship with the defendant is characterised by conflict such that she does not wish to have the defendant hold her accommodation on trust for her.

25. It might be noted that in the event that the plaintiff succeeds in her claim, the principal assets constituting the residue of the estate will be Pindimar ($1,550,000) and the HUB24 account ($759,176.48), i.e., approximately $2.31 million. On the assumption that the estate met the legal costs of both parties (totalling about $415,000 as discussed above), the balance after realisation costs should be somewhere in the order of $1.8 million. For present purposes I will proceed on the basis that in that event, each of the four beneficiaries will receive a distribution of at least $400,000 and probably closer to $450,000.

The plaintiff and her relationship with the Deceased

26. The plaintiff made six affidavits; the defendant seven. Significant parts of the plaintiff’s evidence were challenged. It is however convenient to set out first some general background about the plaintiff and her relationship with the Deceased to provide the context in which those challenges fall to be addressed.

27. The plaintiff was born in the Philippines. She is 64 years old. She attended school in the Philippines until the age of 11 when she commenced work on the family farm. She has no formal educational qualifications. English is her second language.

28. The plaintiff met her first husband, Robert Baldwin, who was a ship’s captain, in Manila. He sponsored the plaintiff to live in Australia, to which she immigrated in June 1989. She married Robert Baldwin on 15 July 1989 and they had two children, Scott Baldwin (born in 1989) and Mike Baldwin (born in 1990), to whom I will refer without disrespect as Scott and Mike. The plaintiff and Robert Baldwin divorced in 1993, with the plaintiff receiving no assets in the divorce.

29. From 1993 to 2000, the plaintiff had various jobs including casual housecleaning, working in coffee shops and at a restaurant. From 2000 to 2002, she worked at the Burwood RSL club as a casual bar attendant. There she met the Deceased in 2002, and they formed a relationship.

30. The Deceased was 22 years the plaintiff’s senior. He was estranged from his wife, Jeanette, who is the mother of Nerida, Louise and Billy. The plaintiff gave evidence, which I do not understand to be controversial, that in 2002 the Deceased was the owner of four properties: two houses in the same street in Putney, one of which was his former matrimonial home which he owned together with Jeanette; an investment property in Eastwood; and Pindimar.

31. In 2002, the plaintiff was living with her sons in a rental property at Wareemba. The Deceased began providing financial support for her. When the plaintiff and the Deceased had been in a relationship for approximately six months, she left her job at the Burwood RSL club and she and her two sons moved into the Deceased’s home in Putney. The plaintiff gave evidence, which I accept, that from 2002 until the Deceased’s death he supported her financially and she was dependent upon him. The plaintiff had some casual employment in the period 2002 to 2011 at KinCare and working at the creche at a gym in Eastwood, but she has not worked outside the home since 2011 and was wholly financially dependent upon the Deceased since that time.

32. The plaintiff gave evidence in her affidavit made 9 October 2023, which I accept, that in this period she was responsible for cooking and cleaning for the household and that she looked after the Deceased when he was ill.

33. The plaintiff also gave evidence in her affidavit, which I do not accept in this unqualified form in light of the cross-examination to which I refer below, that the Deceased “was a loving partner ... . We had a happy family home.”

34. In 2006, the Deceased sold the home at Putney in which he had been living with the plaintiff and her two sons. The contract had an extended settlement. There is a dispute about the circumstances in which the Deceased purchased Breakfast Point in 2008, to which I will return below. For present purposes, it suffices to note that the purchase was completed in August 2008 and the Deceased, the plaintiff and her two sons moved into Breakfast Point, which is a two-bedroom apartment.

35. The plaintiff gave evidence, which I accept, that in 2009 the Deceased told her that he wanted them both to move to live in his house at Pindimar. The plaintiff did not want to go, particularly because her sons would be in Sydney.

36. In about 2009, the Deceased moved to Pindimar. The plaintiff’s sons remained living at Breakfast Point (where they both stayed until 2024, Scott still living there as at the date of the hearing). The plaintiff at first divided her time between spending two weeks at Pindimar with the Deceased and one week at Breakfast Point with her sons. I accept the plaintiff’s evidence that the Deceased paid the rates, body corporate fees, water rates and telephone expenses for Breakfast Point and gave the plaintiff $500-$600 cash for expenses when she went to Breakfast Point.

37. Over time, the plaintiff’s visits to Breakfast Point became less frequent. She gave evidence in her affidavit that the Deceased said to her words to the effect, “I am getting older now. I need your help here. The boys are okay.” I accept that evidence.

38. From 2012, the plaintiff lived permanently with the Deceased at Pindimar. I accept the evidence given in her first affidavit that she cooked and cleaned for the Deceased, that she did not obtain any paid employment once she moved to Pindimar permanently, and that she was required to assist with manual labour working on the property. I also accept the plaintiff’s evidence that she was the Deceased’s driver, nurse and housekeeper, and that she cared for him through various illnesses and hospitalisations which the Deceased suffered in the time they were living at Pindimar.

39. In the years shortly after the plaintiff moved to live permanently at Pindimar, the Deceased made two important financial decisions which are consistent with his having a strong relationship with, and sense of responsibility for, the plaintiff. First, on 14 April 2014, the Deceased executed a binding determination directing the trustee of his superannuation fund to hold the fund for the benefit of the plaintiff. Secondly, on 23 July 2015, the Deceased made the Will, making provision for the portable life estate to which I have referred above.

26. However, the overall picture of their relationship is more complicated than the plaintiff had sought to present in her evidence until it was contradicted and she was challenged on it. As will be seen, the plaintiff was cross-examined on a number of matters which suggest that at times the Deceased did not trust her, and that more generally their relationship was at times volatile and violent. I will address some of this evidence in detail below. But it is convenient to summarise these matters as follows.

1. In 2004 — relatively early in their relationship — the plaintiff and the Deceased entered a binding financial agreement (the final terms of which are not in evidence). Since the Deceased had acquired most of his wealth prior to his relationship with the plaintiff, this appears to have been designed to protect him from claims she might make if they separated.

2. The Deceased does not appear to have wanted the plaintiff to know that in late 2011 he appointed Nerida his enduring guardian and attorney. Nerida gave evidence in her 7 May 2024 affidavit that her father said to her words to the effect, “There is no need for Rosabelle to know about this.” Although the plaintiff responded in her affidavit of 7 June 2024 to other aspects of that affidavit, she did not respond to that evidence.

3. In about 2014, the Deceased reported the plaintiff to the police, alleging that she had stolen money from him.

4. The Deceased had an affair or affairs.

5. On several occasions the police were called because of physical altercations.

6. The Deceased said contemptuous and racist things about the plaintiff, at least when talking to others about her.

41. The defendant drew attention to those matters largely, as I understood it, as vehicles through which to attack the plaintiff’s credit for the purpose of undermining her evidence that the Deceased had made representations to her about Breakfast Point. The defendant also relied on these matters as having a negative bearing on, at least, the assessment of the plaintiff’s relationship with the Deceased: s 60(2)(a). But it seems to me that the greater significance of the volatility and conflict between the plaintiff and the Deceased is that she remained with him despite it. These matters powerfully demonstrate the extent of her dependence upon him.

42. The plaintiff gave evidence that she suffers from a number of health issues which affect her ability to perform activities of daily living, including diabetes, high blood pressure, depression, anxiety and panic attacks. I did not understand those matters to be in dispute. Nor was there any dispute that the plaintiff is taking six medications of which she gave evidence.

Events following the Deceased’s death

43. After the Deceased’s death on 30 April 2023, the plaintiff remained at Pindimar until mid-2024.

44. There was a good deal of evidence directed to conflict in this period between the plaintiff and the defendant, including about a confrontation in July 2023 at Pindimar. The circumstances of that incident are contested, but I have found it unnecessary to resolve the contest. It suffices to say that the relationship between the plaintiff and the defendant has been generally hostile since the Deceased died. That gave rise to an issue at the hearing about whether the provision made for the plaintiff in the Will would be proper if it effectively forced the plaintiff and the defendant to remain in a relationship that might give rise to conflict over an indefinite period.

45. The defendant gave evidence that she has no particular desire to remain trustee of the plaintiff’s portable life interest under the Will once she has fulfilled her immediate role as executrix. She undertook to the Court that, provided that a replacement trustee was a suitable person, she would consent to an independent trustee being appointed. However, she also said that she would consent to remaining trustee, on the understanding that realistically the role would be limited to ensuring that insurance, outgoings and maintenance on any substitute property were paid, attending to any tax return and paying any income to the plaintiff. Notwithstanding the past hostility between the plaintiff and the defendant, I am satisfied that if it were not possible to find a suitable replacement trustee, the defendant would discharge her duties in accordance with the requirements of the trust established by the Will.

46. The plaintiff gave evidence, which I accept, that she was frightened by two intruders walking along the upstairs veranda next to her bedroom at Pindimar around midnight on 22 July 2023. She said that the two people fled when she turned on the lights but that she was too scared to go back to sleep. She also gave evidence that in October 2023, the water supply to the house at Pindimar stopped working because the water delivery line had been manually cut off. The plaintiff said that this scared her.

47. On 23 November 2023, the plaintiff’s solicitors wrote to the then solicitor for the defendant, stating that Pindimar was not suitable for her needs. The plaintiff gave notice that she would seek an order that Breakfast Point be transferred to her, and sought the defendant’s agreement that Breakfast Point be substituted for Pindimar under clause 6 of the Will.

48. The defendant’s solicitor responded on 8 February 2024, inviting a proposal that the plaintiff or her sons in effect contribute any difference in value between Pindimar and Breakfast Point. That letter also advised that the plaintiff’s sons’ continued occupation at Breakfast Point was a trespass.

49. This appears to have prompted the plaintiff to file a notice of motion seeking orders for interim provision in relation to Breakfast Point. On 17 June 2024, Kunc J refused that application, but granted an interlocutory injunction the effect of which would have been to permit the plaintiff and her sons to occupy Breakfast Point. Those orders were stayed pending an application for leave to appeal to the Court of Appeal.

50. On 18 July 2024, the plaintiff by her solicitors gave notice to the defendant pursuant to clause 6.4 of the Will that she no longer wished to reside at Pindimar and consented to its sale. Although as at 20 September 2024 the defendant had appointed an agent for the sale of Pindimar, it was necessary to undertake work to bring the sewage system up to council standards before the sale could proceed.

51. On 30 July 2024, the plaintiff by her solicitors gave notice that she had vacated Pindimar. That letter did not disclose that when the plaintiff vacated Pindimar on 25 July 2024, she moved into Breakfast Point. Since that time, the plaintiff has been living at Breakfast Point with her son Scott, her son Mike having moved out to live with his partner in Caringbah.

52. On 3 September 2024, the application for leave to appeal from Kunc J’s decision was refused with costs, on the basis that there was little utility in granting leave to appeal when the Court was in a position to hear the matter in October 2024.

53. In the circumstances I have outlined above, I give little weight to the fact that the plaintiff has been in occupation at Breakfast Point since 25 July 2024. But it is a matter of some significance that she exercised her rights under clause 6.4 to direct the defendant to sell Pindimar, consistently with her position that Pindimar was not a suitable home for her.

The witnesses: credibility and reliability

54. Before making findings about the significant issues in dispute, it is necessary to say something about the witnesses’ credibility and reliability.

55. Save for the plaintiff, whose evidence I will have to address in some detail below, I had no reservations about the credibility or general reliability of any of the witnesses.

56. Ms Glennise Bottomley, a friend of the plaintiff from Pindimar, gave evidence, although only very briefly, in a clear, forthright and precise manner that certainly had the ring of truth to it. Her evidence was not as to matters of significance for the disposition of the summons.

57. The plaintiff’s son Mike was an impressive witness. He was careful, thoughtful, direct and prepared to make concessions fairly required. His answers were generally responsive and to the point.

58. Madison was also an impressive witness. She paid close attention to the questions and answered responsively.

59. The defendant Nerida was a forthright witness who presented as rightly proud of her independence and self-reliance. She was occasionally emotional in answering (for which I make no criticism of her or her evidence). Although she tended to want to give reasons explaining the matters about which she was being questioned, I did not find her to be evasive.

60. Billy seemed slightly overawed by the courtroom environment. He was a straightforward witness who appeared to answer directly to the best of his ability. He did have some trouble at times following the distinctions drawn in the questions, for example the difference between the exact words and the gist of what was said, but not in a way that ultimately caused me to have any concerns about his evidence.

61. Louise presented as somewhat anxious. But again I found her direct and I had the impression that she was answering the questions to the best of her ability.

The plaintiff’s evidence

62. As already noted, the plaintiff made six affidavits in the proceeding. Her truthfulness and reliability were the subject of a sustained attack in cross-examination, almost the whole of which was directed in one way or another to her credit. It was put to her repeatedly that her evidence was invented, and at times that it was a deliberate lie. Both parties provided written submissions addressing whether the Court should accept her evidence. Given that much of the detail of the credit attack was bound up with cross-examination about the substantive matters relevant to disposition of the summons, I will deal with the former as required in the course of addressing the latter. It is, however, appropriate at this stage to make some general observations about the plaintiff’s manner of giving evidence. Although I have read the parties’ submissions closely, I do not consider it necessary or appropriate to resolve the many disputes over matters of peripheral significance about which submissions were made, such as whether at the time the Deceased died the plaintiff was (as she said) holding his hand, or was instead in the hospital car park.

63. English is not the plaintiff’s first language. Although she has lived in Australia for many years, and plainly has a strong functional level of English, she was at something of a disadvantage when being cross-examined. That was clear when it came to drawing distinctions or where the question had more than one element. Her affidavits were drafted in sophisticated language, but it became apparent in the course of her cross-examination that at times she did not understand the whole question — although she would, at least at first, not say so. She had particular trouble when the cross-examiner spoke at speed.

64. At times the plaintiff became emotional (for which I make no criticism of her or her evidence), and it was necessary to take a short adjournment so that she could recompose herself. It was submitted for the plaintiff that the nature of the attack on her evidence was debilitating, and that given her poor levels of education, that English is her second language, and the fact that she has suffered panic attacks as a consequence of her interactions with the Deceased’s family and the litigation, it is understandable that she had difficulty focusing on direct answers to questions. While there is some merit in that submission, it overstates the position.

65. Even allowing for the stresses of the litigation and of giving evidence, and for the inevitable difficulties that matters of language, and possibly differences in cultural background, can cause in cross-examination, the plaintiff was not on the whole an impressive witness. She did not always appear to be paying full attention to the question, instead being distracted by her affidavits or whatever document she was being cross-examined on. She did not always engage directly with the question, but instead gave answers that stated her general position on a topic. At other times the plaintiff’s answers were simply non-responsive, or appeared to be selective in the part of the question to which she responded. On some of the occasions on which she said she did not understand questions, I had the impression that she was unsure what answer was best for her case.

66. Her evidence was at times self-serving. For example, the unqualified picture that she painted in her first affidavit of a “happy family home” was seriously incomplete, in light of evidence that emerged that from 2002 to 2008 the plaintiff had a violent home life with the Deceased; that the police were contacted on at least three occasions; that in December 2007 the Deceased claimed that the plaintiff had pulled a knife on him, and the police were called; that in August 2007 the Deceased assaulted the plaintiff because of a dispute over a woman’s underwear; that in 2004 the Deceased had also assaulted the plaintiff; and that the “turbulent times” did not stop after 2008, including because the Deceased had affairs with other women (Tcpt, 8 October 2024, 41.26 ff). An incident of particular significance as to the nature of the couple’s relationship was the one in 2014 (addressed in detail below), in which the Deceased made a complaint to the police that the plaintiff had stolen money from him. I do not accept the submission, made with respect to the plaintiff’s unqualified evidence describing a happy home life, that it was “a plausible worldview even if domestic violence is inconsistent with that according to community standards”.

67. Given the passage of time, some of the plaintiff’s evidence — particularly of conversations — was plainly reconstructed in important respects, and she had trouble remembering matters on some subjects until she refreshed her recollection from an affidavit. That is not to say that such evidence was necessarily deliberately untruthful. A witness can reconstruct events in a way that is most favourable to the witness while genuinely believing that that reconstructed account is true. Here, the plaintiff generally gave her evidence, particularly on matters on which she was challenged, with apparent conviction.

68. But the passage of time and the natural human tendency to reconstruct while eliding the distinctions between what one heard, what one understood, and what one felt one deserved, make it difficult to place weight on the apparent sincerity of the plaintiff’s evidence. The objective circumstances provide a stronger foundation from which to draw inferences about what occurred many years ago. For example, I do not accept the accuracy of the plaintiff’s evidence of what the Deceased said to her on various occasions about Breakfast Point where it is inconsistent with inferences to be drawn from other evidence about the attitude and conduct of the Deceased at the time in the circumstances of their relationship.

69. The plaintiff also gave evidence that her memory had been affected, particularly in the two or three months leading up to the hearing (i.e., not at the time she had filed most of her affidavit evidence), by the medicines she was taking. She was asked:

“Q. Has that happened to you while you have been preparing your affidavits for this court case?

A. On, on 2023, it’s not much, it’s not much problem in my head. Only lately this 24 because of them. I taking inside this medicine, panic attack medicine, but other one, they have three inside. That - so I - all that medicine affect my head. This - and that’s why this 2024 is look like something is getting more worse.

…

Q. I put to you that in 2024, as you have been preparing your affidavits in this case, you have had severe memory difficulties. What do you say to that?

A. But this lately, about maybe two months ago, three months ago it’s getting very like that.”

(Tcpt, 9 October 2024, 103.46-104.33)

70. Later, the following exchange took place:

“Q. I’m going to put a series of things to you, and you let me know if you agree or disagree, okay?

A. Okay, all right.

Q. If you do not understand what I’m saying--

A. Yes.

Q. --you let me know, okay? Bill never told you that Breakfast Point was yours forever. Do you agree or disagree?

A. Can you repeat it again?

Q. Of course.

A. My brain is too slow to work it out.

Q. I can repeat it again, that is absolutely--

A. Slowly, please, slowly.

Q. Slowly, no difficulty. Bill never told you that the Breakfast Point property was yours forever?

A. No.

Q. When you say ‘no’, are you agreeing that he never said that, or are you disagreeing that he never said that?

A. I disagree that you said that, but this one I agree. [The plaintiff pointed at her affidavit.]

Q. I’m afraid I don’t understand your answer.

A. Sorry.

Q. Let me put the question again, and I’ll try and make it better.

A. Can we have Philippines language here? I mean I’m saying, but I don’t know, my brain is not, is not working today.

Q. Ms Baldwin--

A. Because my medicine I take this morning.”

(Tcpt, 9 October 2024, 117.12-45)

71. Although I raised the question of an interpreter with the plaintiff’s counsel, no application was made to use one. While I accept that the plaintiff sometimes had difficulty in understanding questions because of matters of language, and in remembering details, in this exchange she did not appear to be making a genuine attempt to engage with the questions. She attributed her difficulties to her medications, of which she had given evidence at [130] of her 9 October 2023 affidavit, but no evidence was led from a medically qualified source as to their likely effect on memory or cognition.

72. The plaintiff often reflexively began her answers with the word “Yes”, even when she did not necessarily agree with the proposition being put to her. An example was her evidence at Tcpt, 8 October 2024, 43.26-36:

“Q. You deliberately omitted from your affidavits the fact that Bill had had affairs. Do you agree?

A. Yes, but it’s only just some- just a short time because I was very angry.

Q. The reason you didn’t mention it in any of your affidavits is because you thought it would hurt your case if you talked about that, correct?

A. Yes, I didn’t think about that but I told you he’s a very nice and kind person. Only because of the woman - when I’m in overseas the woman came to my place. Of course I’m one month gone and other woman. He said to me - that’s what he said to me when I come home from overseas and he said to me that, ‘I’m sorry. The woman came home’.”

73. Despite the “Yes” in the answer to the first question, it was clear to me that the plaintiff was not agreeing with the proposition that she had deliberately omitted something from her affidavit. She did not respond to that part of the question at all. She was instead agreeing that the Deceased had had an affair, which the plaintiff then sought to play down (“just a short time”). On this occasion, I did not have the impression that the plaintiff was being evasive, but rather that she was focusing on what she perceived to be the main issue (i.e., the affair, as opposed to how her affidavits had been prepared).

74. As to the second question in that passage, it was again clear that despite the “Yes”, the plaintiff was not agreeing with the proposition that the reason she had not mentioned the affair in her affidavits was because she thought it would hurt her case. To the contrary, she said, “I didn’t think about that”. So much was a responsive answer. But again, the plaintiff then sought to play down the significance of the affair (“but I told you he is a very nice and kind person”), and in effect to blame the other woman.

75. The plaintiff’s tendency to begin her answers with the word “Yes” without necessarily meaning to convey agreement means that one must approach what may appear in transcript to be a concession with a degree of caution. An example is the exchange immediately following the one set out above at Tcpt, 8 October 2024, 43.38-44:

“Q. You would agree that you’ve been very careful in what you’ve included in all six of your affidavits, correct?

A. Yes.

Q. You’ve also been very thoughtful about what you haven’t put in those affidavits, correct?

A. Yes.”

76. Notwithstanding the second unqualified “Yes” answer, I had the impression that the plaintiff had not understood that she was being asked whether she had been consciously selective in excluding matters from her affidavits.

77. Even the cross-examiner acknowledged at times that a “Yes” answer she had obtained had no value. The following exchange occurred in relation to a draft 2004 deed (I will shortly return in some detail to the evidence about the draft deed):

“Q. Before this affidavit, you had never mentioned the deed in any of your earlier affidavits, correct?

A. Yes, I think, yeah.

Q. That was a deliberate omission from your earlier affidavits, do you agree?

A. Yes.

Q. So just listen. Can you stop looking at the affidavit and just listen very carefully?

A. Yes, yes.

Q. I’m going to put the question one more time.

A. Okay.”

(Tcpt, 8 October 2024, 64.10-22)

78. That is not to say that none of the plaintiff’s answers should be understood as making concessions or agreeing with the proposition put. Far from it. But each answer has to be understood in its context, and with an awareness of the possibility that the plaintiff might not always have understood or have been concentrating on what she was asked.

79. The overall picture of the plaintiff’s evidence is thus complex. There are several reasons for approaching the accuracy of her evidence, particularly about conversations many years ago, with care. But it is not possible to make any blanket finding as to her truthfulness or reliability that can automatically be applied to every answer.

80. I will now turn to the evidence about the disputed issues of significance.

The 2004 draft Property (Relationships) Act 1984 (NSW) deed

81. Very late in the preparation of evidence, the defendant exhibited to her affidavit of 17 September 2024 three documents which she described as “ones recently found.”

82. The first was an unexecuted copy, stamped DRAFT, of a deed bearing the date 2004 between the Deceased and the plaintiff, which was directed to the financial consequences of any future separation. The draft deed recited:

1. at (a), “Bill and Florencia have been living in a de facto relationship for approximately 5 months” — I note that as at 2004 the couple had in fact been cohabiting for approximately two years;

2. at (d), “The parties have no present plans to become married but wish to live in a de facto relationship”;

3. at (d)-(g) that the Deceased owned the two houses at Putney, the property at Pindimar and a boat repair business;

4. at (h), “Certain questions have arisen between the parties concerning their future welfare and property and the rights of their children to inherit property from their parents”; and

5. at (j)-(l), that the parties had considered the independent advice given to them by separate legal representatives concerning various matters, including the effect of the deed on their rights under the “Property (Relationships) Act 1994” (apparently a reference to the 1984 Act of the same name) and the “Family Provision Act 1982”, and that the deed was intended to operate in substitution for their rights under those Acts.

83. The operative provisions of the draft deed included the following.

1. Clause 2: “In the event that the parties shall separate permanently then Bill will be entitled to the exclusion of Florencia to retain all assets which he presently owns subject to all liabilities which will remain his responsibility.”

2. Clause 3: “In the event that the parties shall separate permanently then Florencia will be entitled to the exclusion of Bill to all property which she owns subject to any liabilities attaching thereto which will remain her responsibility.”

3. Clause 4: “In the event that the parties shall separate permanently then all property acquired by the parties since the date of cohabitation commenced shall be sold and the proceeds thereof divided between the parties equally unless otherwise agreed between the parties.”

4. Clause 5: “In the event that the parties shall separate permanently then both parties shall indemnify the other concerning their liabilities.”

5. Clause 6: “In the event that the parties shall separate then neither shall be required to pay maintenance to the other.”

6. Clause 7: “The parties agree that it is their present intention to continue living together in a de facto relationship indefinitely.”

7. Clause 8: “So far as practicable Bill will pay all living expenses including food and other essentials and for any holidays that they may take together until the parties cease to cohabit as de facto partners.”

8. Clause 9: “Bill will be entitled to all income earned from his business and to all income derived from assets and financial resources held in his name. Florencia will be entitled to all income earned from assets and financial resources held in her name.”

9. Clause 10 gave mutual releases for purposes of the Property (Relationships) Act, and clause 11 provided that if any part of the agreement was not approved by the Supreme Court of New South Wales pursuant to s 31 of the Family Provision Act 1982 (NSW), the rest of the agreement was intended to remain valid and enforceable.

84. The second of the three documents annexed to the defendant’s affidavit of 17 September 2024 was a copy of a letter from David Pain & Co Solicitors to the Deceased dated 14 April 2004, the body of which was as follows.

“Dear Mr Fisher,

RE: PROPERTY RELATIONSHIPS ACT AGREEMENT

We are enclosing a further draft of the agreement for your consideration and the consideration of Mrs Baldwin. We have deleted clause 7 and the substitute clause proved to be a little difficult to draft so we have just put it down that you intend to live together indefinitely. That does not mean that you will or that you have to, what it means is that it is your present intention to do so. Things can change as we know. If they do and Mrs Baldwin leaves the house then the house would revert to you. However if she wished to stay there might be some complications and you may have to pay her out. That is, she would have a life interest in the house which you could buy from her. These life interests can be valued having regard to the age of the person and the value of the property. An actuary does a valuation and values the life interest. We think that’s what she means by the amendment she put on the draft copy.

We would be pleased to discuss it with you and we would be pleased if you would also discuss it with Mrs Baldwin.

Yours faithfully,

DAVID PAIN & CO.

ALAN PALMER”

85. Given the correspondence between clause 7 of the draft deed which is in evidence and the description of the “substitute clause” in this letter, it is probable that the draft deed in evidence either was the “further draft of the agreement” enclosed with this letter, or at least post-dated the letter. However, the somewhat obscure reference in the letter to the plaintiff having a life interest in the house (which is not express in the draft deed in evidence) tends to favour the latter hypothesis. It also indicates that the Deceased, and possibly the plaintiff, were aware of the concept of a life interest in this context as early as 2004. On either basis, the draft deed in evidence should be taken to represent the solicitor’s understanding of his instructions as at, or after, 14 April 2004, being the date of the letter. Those instructions appear to have been given by the Deceased (to whom the letter was addressed), but incorporating input from the plaintiff: “We think that’s what she means by the amendment she put on the draft copy”, and see the reference to the “further draft of the agreement for your consideration and the consideration of Mrs Baldwin”. The content of the “deleted clause 7” from an earlier draft is unknown.

86. The third of the documents annexed to the defendant’s 17 September 2024 affidavit was a copy of a letter and invoice from Thurlow Fisher Lawyers & Consultants addressed to the plaintiff dated 29 June 2004, i.e., more than two months later, the body of which was as follows.

“Dear Florencia,

RE:   YOUR MATTER

I refer to my attendance with you on 23 June 2004.

I confirm the advice provided was in accordance with the enclosed draft deed clause J1-5.

I enclose my account for your attention.

Yours faithfully,

THURLOW FISHER

Per: [signature]

Encl.”

87. The words “clause J1-5” appear to correspond to recital J of the draft deed in evidence, which recorded five topics of legal advice numbered (i)-(v). I note that at this stage, the lawyer Mr Fisher was still referring to an “enclosed draft deed”. It may be that this document was the draft deed in evidence, or (if the draft in evidence is the one that was attached to the letter from David Pain & Co) a later draft; it is also possible that they were the same document.

88. In response to the defendant’s affidavit of 17 September 2024, the plaintiff then said in her affidavit of 25 September 2024 that she had reviewed the three documents, and that she did not hold draft or signed copies of any deed made for purposes of the Property (Relationships) Act in or about 2004. She said that in 2004 a Mr Fisher, who was a lawyer, lived in the same street as the Deceased and the plaintiff in Putney. She deposed that once while she was cooking the Deceased said to her that Mr Fisher was going to come over and give her some papers to sign; I note that this appears to have been the “attendance with you on 23 June 2004” to which Mr Fisher referred in his letter.

89. I accept the plaintiff’s account of the matters to which I have referred in the preceding paragraph which she gave in her affidavit of 25 September 2024. I am not persuaded by the defendant’s submission that the plaintiff deliberately omitted reference to the deed from her earlier affidavits. It is equally possible that the plaintiff had overlooked a document executed 20 years ago, and, given the evidence against interest to which I refer below, I would not infer deliberate withholding.

90. However, for reasons I will explain, I do not accept the following evidence given by the plaintiff in her 25 September 2024 affidavit to the extent that it conveys that she was unaware of the contents of the document in 2004 or that the Deceased dealt with her on that basis. But I accept her evidence, which I consider to be against interest, that she signed a document that Mr Fisher brought to her.

91. The plaintiff said that when she asked the Deceased what the papers were for, he said, “Just sign it and we can talk about it later”. She said that when Mr Fisher arrived he asked her whether the Deceased had spoken to her about the papers, to which she replied, “Bill told me to sign it and he will talk to me about it later”. She said that although she did not read the document, and although the lawyer Mr Fisher did not read the document out loud to her, nevertheless “I signed a document that day.” She said that she did not receive any account issued by Thurlow Fisher or any letter from Thurlow Fisher. She said that later that evening when she asked the Deceased about the papers, he said words to the effect, “It is about my property with Jeanette [i.e., the Deceased’s wife from whom he was then separated but apparently not yet divorced]. Don’t worry, after I finish with Jeanette, I will have something for you. Let me just finish this problem first, and then we can get on with our lives”.

92. No executed copy of the deed is in evidence; nor was there any evidence from either of the lawyers, Mr Fisher or Mr Palmer. I consider the plaintiff’s evidence that she signed “a document” brought to her by the lawyer Mr Fisher in 2004 to be honest evidence against interest, which the other evidence did not put her in a position of being compelled to concede. Based on that evidence, I find that in 2004 the plaintiff and the Deceased executed a deed of some kind for purposes of the Property (Relationships) Act (and possibly the Family Provision Act) which addressed the financial consequences of a future separation. But in light of the fact that both of the solicitors’ letters in evidence referred to drafts of the deed, and since there is no basis on which to conclude that the draft in evidence represented the final position, I am unable to make a finding about the specific content of the agreement that was entered.

93. The reasons why I do not accept the other aspects of the plaintiff’s evidence in her 25 September 2024 affidavit referred to above are as follows. First, the letter from Mr Palmer of David Pain & Co referred to “the amendment she [i.e., the plaintiff] put on the draft copy” — a matter which the plaintiff did not address in her affidavit.

94. Secondly, the defendant tendered at the hearing a copy of an undated handwritten letter to the Deceased signed by the plaintiff, which became exhibit D3. When asked whether it was in her handwriting, the plaintiff answered, “Similar, but I didn’t think that I did this” (Tcpt, 8 October 2024, 73.13 ff). She said that she did not remember writing the document, but when asked whether she was denying that it was her signature, she answered, “I, I’m not sure, but I try to figure out because it’s a long, long time ago” (Tcpt, 8 October 2024, 73.30). When it was put to her that she had written the document when she was discussing the terms of the deed with the Deceased, the plaintiff answered, “Sign the document with Bill? Probably, yes” (Tcpt, 8 October 2024, 74.6). I am satisfied on the balance of probabilities that the plaintiff wrote exhibit D3 in 2004 in connection with the deed that she ultimately executed, as was not ultimately disputed in submissions.

95. The letter, the whole of which was as follows, is inconsistent with the plaintiff’s account in her affidavit of 25 September 2024 that she was unaware of the contents of the document she had signed.

“This is my final discussion.

Dont see your old girlfriend any more.

Remove that No. 7 on the paper.

Put any assurance for me, on the — paper that one day, I dont want people kick me out from here.

And then after two years we get married. We live together untill the rest of our life.

Now the agreement, if I shoot [illegible – perhaps “thru”] by myself, I dont have to claim any thing from you.

But if I stay even 100 years from to you, then I can have something!

Rosabelle B.”

96. I am satisfied on the balance of probabilities that this letter was referring to a draft of the 2004 deed, and in particular to the plaintiff’s objection to clause 7. It may be that the words “Remove that No. 7 on the paper” were referring to an earlier draft of the deed which is not in evidence, from which Mr Palmer had “deleted clause 7”. Given the plaintiff’s position in her handwritten letter that “after two years we get married”, it may instead be that she was objecting to clause 7 of the draft which is in evidence, which stated that the parties intended to continue to live in a de facto relationship indefinitely (recital (d) recording that the parties had no present plans to become married). For present purposes I do not think it matters.

97. The important points are as follows. First, I do not accept the plaintiff’s account in her 25 September 2004 affidavit of her conversations with either the Deceased or the lawyer Mr Fisher about the deed. I am not persuaded that that evidence, on which the plaintiff was cross-examined forcefully and at length, was dishonest, or that the plaintiff was pretending that she did not understand the cross-examiner’s questions because she did not know how to answer them in a way that would help her case. But the plaintiff’s evidence was reconstructed in a highly self-serving manner. This is a rare example in which there is contemporaneous documentary material against which to measure the accuracy of the plaintiff’s recollection of conversations with the Deceased. It casts significant doubt on the reliability of such evidence where her own interest is engaged.

98. Secondly, the entry into the deed shows that, at least as at 2004, the Deceased was highly concerned to protect his existing assets from the plaintiff, in the event that they separated. While this episode predated the acquisition of Breakfast Point by about four years, given the evidence of the volatility of the couple’s relationship and the probabilities in light of the Deceased’s character and conduct as disclosed in the evidence (particularly his attitude to the other house in Putney in which Jeanette lived), it is improbable that he would have wanted to expose himself at any stage to the risk that the plaintiff would have rights against any property bought with his money if they separated.

99. In the absence of evidence of the executed deed, it is difficult to make much of specific clauses in the draft. Although clause 4 in the draft deed provided that if the parties separated, property acquired after the date of cohabitation (which would include, for example, Breakfast Point) would be sold and the proceeds divided equally, the words at the end of the clause are important: “unless otherwise agreed between the parties.” Since the Deceased had the economic power in the relationship, and since the effect of the draft deed would have been to leave the plaintiff with no leverage if they separated before any such property was acquired, the words at the end of clause 4 (if that clause was included in the executed deed) would have given the Deceased considerable protection.

100. The plaintiff rightly points out that the 2004 draft deed is addressed in terms only to the position in the event of separation, and not to the position where the plaintiff remained with the Deceased until his death. But it is improbable that in the meantime the Deceased would have intended to confer on the plaintiff any present property interest in assets bought with his money, of which she would have the benefit if they later separated. It is also improbable that he would have said anything to the plaintiff that would have given her a basis to assert a present property interest if they separated.

101. Thirdly, exhibit D3 shows that the plaintiff was acutely concerned about the vulnerability of her own position. She was financially dependent on the Deceased and had little economic bargaining power. She wanted an “assurance” that “one day” (i.e., in light of recital (h), after the Deceased’s death) “people” (the Deceased’s children) would not be able to “kick me out from here” (apparently, the home at Putney in which the couple were then living with the plaintiff’s sons). The letter was also part of a negotiation. It acknowledged a transactional element to the relationship whereby, if the plaintiff left the Deceased (and thereby failed to uphold her end of the bargain) she would not be able “to claim anything from” the Deceased. On the other hand, if she stayed with the Deceased “until the rest of our life”, then she would receive “something”, i.e., an interest in property of some kind that would protect her from being kicked out of her home. I will return to the transactional element below. But the fact that the plaintiff was expressly contemplating receiving property from the Deceased from as early as 2004 is important context in which to assess the reliability of her reconstructed evidence about conversations with the Deceased on that subject.

102. In connection with what the “something” was or might be, the plaintiff gave this evidence in cross-examination:

“Q. You understand today what a life interest in a property is, correct?

A. Correct. Correct.

Q. You understand today that if you have a life interest in a property, it means while you are alive no-one can kick you out. That’s your understanding?

A. While you are alive no-one can kick me out, you said?

Q. Do you agree? That’s your understanding today?

A. Yes.

Q. You had that understanding in late 2002, correct?

A. Yeah, probably.

Q. You understood what a life interest was in 2004, correct?

A. 2004, yes.”

(Tcpt, 8 October 2024, 54.12-26)

(Later the plaintiff’s evidence about her understanding in 2004 became less emphatic: Tcpt, 8 October 2024, 89.16-28; 89.49-90.3.)

103. Specifically as to the “something”, the plaintiff was cross-examined on exhibit D3 as follows:

“Q. You see at the bottom of this note it says, ‘But if I stay even 100 years to you, then I can have something.’ Do you see that there?

A. Yes.

Q. The something you were referring to, when you wrote this note, was a life interest in the Putney property?

A. Not in, not in Putney. We have to buy somewhere else, if I want to stay for, to Bill because Bill doesn’t want me to go.”

(Tcpt, 8 October 2024. 75.31-38)

104. I do not accept the defendant’s submission that the “something” was necessarily a life interest in the house at Putney. The plaintiff rejected the proposition, and the very word “something” indicates a degree of flexibility. It is in any event not clear that the proposition would necessarily assist the defendant, given that when the house at Putney was sold Breakfast Point was the property which immediately replaced it.

105. I do not accept the submission made on behalf of the plaintiff (Plaintiff’s Submissions on Credit of Plaintiff’s Witnesses at [33]) that her evidence about her beliefs and expectations that she was or would become an owner of the Breakfast Point property is “corroborated” by, among other things, her evidence that the word “something” in exhibit D3 meant, “We have to buy somewhere else” (Tcpt, 8 October 2024, 75.36-38). It is difficult to see how one part of a witness’s evidence can corroborate another. In any event, so far as it went, the answer at Tcpt, 8 October 2024, 75.37, “Not in, not in Putney” was rejecting the proposition that the “something” was an interest in the Putney property, not necessarily that the interest might take the form of a life estate.

The Deceased reported the plaintiff to the police in 2014

106. Before turning to the plaintiff’s evidence about representations made by the Deceased, it is convenient to deal with an incident that occurred in 2014, of which the defendant sought to make much early in the cross-examination of the plaintiff. With some hesitation, I will address the evidence of this incident in detail. It includes an example of what appears in transcript to have been a concession which I did not understand to be such when I saw and heard the cross-examination. The evidence is of some significance, not only because of the use the defendant sought to make of it as to credit, but also because it illuminates aspects of the couple’s relationship which have a bearing on the probabilities with respect to the representations the plaintiff says the Deceased made to her about ownership of Breakfast Point.

107. The issue arose out of the defendant’s evidence in [111]-[114] of her affidavit made 7 May 2024. The defendant said that in or around late 2013, the Deceased was admitted to Maitland Hospital for about 10 days, after which he had said that money was missing from his bank account. The defendant said in her affidavit, “Dad later told me that he had reported the missing funds to the police.”

108. The plaintiff responded to that evidence at [50]-[54] of her affidavit made 7 June 2024 as follows:

“In response to paragraph 112 of Nerida’s May affidavit whilst the Deceased was in hospital in December 2013, he gave me his bankcard and said words to the effect of:

‘You can go to the ATM and get some money for petrol and groceries.’

Once the Deceased returned to the Pindimar property, he gave me his bankcard again and said words to the effect of:

‘Go and withdraw $1,000 cash so that you can buy the things we need.’

The Deceased gave consent to me to use his bankcard to withdraw funds whilst he was in hospital and whilst he was not mobile at home. The Deceased provided me with his PIN number.

When I withdrew the $1,000 cash, I saw that the Deceased had a balance of nearly $500,000 in his bank account. Prior to that time, I was not aware of the balance of the Deceased’s bank account. I said to the Deceased words to the effect of:

‘You have plenty of money – why do I have to beg you all the time for money for anything? Why are you so tight? I can’t even buy anything for myself like new underwear, new shoes, lipstick or something else for me.’

In response to paragraph 113 of Nerida’s May affidavit, whilst the Deceased was not mobile, I withdrew $4,000 from the Deceased’s account and deposited it into my own bank account so that I had access to funds to pay for household items, petrol and some spending money for me. I informed the Deceased that I had made that withdrawal. The Deceased was upset. He said to me words to the effect of:

‘You have taken my money.’

I said:

‘I am your wife, I need money.’”

109. At [55], the plaintiff gave evidence that she then went to Breakfast Point. She said the Deceased followed her there and tried to persuade her to return to Pindimar. The plaintiff said that the Deceased told her words to the effect, “My money is your money too. Come back and look after me. It is all ok.” The plaintiff said that based on the Deceased’s statements, she returned to the Pindimar property and continued to look after him.

110. The plaintiff was cross-examined at length on this episode. She agreed that in 2014 the Deceased had reported her to the police for having stolen over $10,000 from him (Tcpt, 8 October 2024, 44.6), although she also said “He didn’t tell me that. He, he gave me his cards” (Tcpt, 8 October 2024, 44.35). One aspect of the questioning was designed to lock the plaintiff into having made only two withdrawals, in the sums of $1,000 and $4,000:

“Q. Your version is there were two instances, one where you took $1,000, and another where you took $4,000?

A. Yes.

Q. That’s your recollection?

A. Yes.

Q. You’re telling his Honour that you can remember that distinctly?

A. Yes.”

(Tcpt, 8 October 2024, 46.45)

111. The plaintiff was then asked:

“Q. Do you accept that based on what you’ve written in paragraph 54, you took the $4,000 without Bill’s prior knowledge or permission?

A. Bill is give me his card because he’s in the hospital and he needs food, medicine and many things at home, while he can’t go to the bank and that’s why he give me his bank card and PIN number to get some money. He asking me to go to the bank and get the money out.

Q. I’ll ask you again, do you agree that based on what you said in paragraph 54, you took the $4,000 without Bill’s prior knowledge or permission?

A. Yes, but it’s not once; many times.

Q. Would you accept that you stole the $4,000, based on your version of events in paragraph 54?

A. Yes, but it’s not for stealing.

Q. I’ve just asked you if you would accept that you stole that money, and you just said ‘Yes, but it was not stealing.’ Could you elaborate that answer to his Honour?

A. I didn’t steal. I, because I saw Bill’s, because Bill’s gave me that bank card when he’s in the hospital and asked me to go to the bank and get some money for everyday living, especially for the petrol to come back and forth to the hospital, and food, and medicines, and that’s why I agree to get the money in the bank because he gave me his bank card. And then this 4,000 is not only just one go, because it’s not allowed that, to get the money for 4,000 in one, in the, in the machine. I go there different date.”

(Tcpt, 8 October 2024, 47.5-31)

112. The plaintiff’s answers, “Yes, but it’s not for stealing” and “I didn’t steal”, plainly rejected any suggestion that she had not believed she was entitled to take the money.

113. Having denied that she had stolen the money, the plaintiff was then cross-examined about the period over which she withdrew it (“I can’t remember. There’s nothing, there’s no date in here” (Tcpt, 8 October 2024, 48.17)); and again to lock her into the figure of $4,000, with which she agreed:

“Q. And you’re very confident that it was a total of $4,000?

A. Yes, yes, and that money I use it for at home, not to myself only because we, we have to, we have to buy things.”

(Tcpt, 8 October 2024, 49.39-41)

114. A police record (which later became exhibit D2) relating to this episode was put before her, and she was asked:

“Q. Can you just take the time to read what is on page 5 to yourself? Have you read that there?

A. Yes, I read this one.

Q. The truth is, between December 2013 and June 2014 you stole $12,000 from Bill, correct?

A. Well, that’s what is recorded in here.

Q. Do you accept that it is true?

A. If it’s recorded in here it means it’s true.

Q. So, Ms Baldwin, I just want to ask the question again, and I’ll emphasise I’m not asking you if Bill reported it, I’m asking you if you agree whether something is true or not. So I’ll put it again; the truth is, between December 2013 and June 2014 you stole $12,000 from Bill?

A. Yes. I admitted, because, because I saw Bill have many money under his bank, and he’d never give me any money, not even money to buy a lipstick or underwear or something. That’s why when I saw his money, balance money in the bank is many, and I, and I thought, it’s okay to, to get some money. And then I told that to Bill, that I took some money to his bank account, and that’s why he forgive me and then we lived, after that we lived together again.

Q. Your version of events in paragraphs 50 to 55 of your affidavit is a lie, do you agree?

A. Number what?

Q. Your version of events from paragraphs 50 to 55 is a lie. Do you agree?

A. Well, that’s what I said, I remember. That’s what I remember, that’s why I put the affidavit in there.

Q. It is not true that Bill consented to you taking $1,000 in December 2013?

A. Yeah, that’s what I said. I took $4,000 and - well, Bill knows that. We have an argument, we, I told him that before to him, that’s why we come back to each other again. He doesn’t mind anymore. Just to, just he want me to come back again to him, because I’m the only one he can, I can look after him until the rest of his life.”

(Tcpt, 8 October 2024 50.34 to 51.15)

115. I had understood the cross‑examination prior to this point to be directed to showing that the figure of $4,000 was too low, and that the manner in which the plaintiff had withdrawn the money was in a series of transactions over an extended period. The plaintiff appeared to have had the same understanding. I had the distinct impression at the time that in giving these answers the plaintiff was agreeing only that she had taken the $12,000 from the account (“If it’s recorded in here it means it’s true”), rather than the $4,000 figure in her affidavit. She was not agreeing that she was not entitled to do so: “and I thought, it’s okay to, to get some money”. I did not understand her answers as admitting that she had stolen any money, or as departing from the account she had given in her affidavit about the Deceased’s consent. Indeed, a few questions later, when it was put to the plaintiff that she had made up the evidence in [55] of her affidavit to the effect that Bill said the words, “My money is your money too”, the plaintiff disagreed: “Yes, that’s what he said” (Tcpt, 8 October 2024, 52.18).

116. To the extent that this episode was relied on to demonstrate the plaintiff’s lack of truthfulness (in particular, by showing that the plaintiff had dishonestly stolen the Deceased’s money), I reject both the premise and the conclusion. I did not understand the effect of the plaintiff’s answers to be that she was admitting to stealing; to the contrary, I accept that she believed she was entitled to take the money at the time. In the absence of an admission, the evidence does not establish that she stole any money. If anything, the plaintiff’s readiness to agree when shown a document that the figure was $12,000 not $4,000 enhanced her credibility, in the sense of truthfulness.

117. But the exchanges set out above do show that the plaintiff’s evidence was not reliable, as to the timing (she could not remember), or the number of withdrawals, or the total figure (as to which she had been both adamant — “Yes, yes” — and mistaken).

118. To the extent that this episode was relied on as bearing critically upon the plaintiff’s “character and conduct” within the meaning of s 60(2)(m) of the Act, I reject the proposition for the same reasons referred to above in relation to credit.

119. The much greater significance of the evidence about this episode is that the plaintiff’s relationship with the Deceased was one in which (1) after more than ten years together, and after she had nursed him through his illness, he was capable of going to the police to accuse her of stealing his money; and (2) despite that, they remained together for the better part of another decade.

120. The second point underlines the extent of the plaintiff’s dependence upon the Deceased.

121. The first point is a circumstance in some tension with the plaintiff’s evidence (discussed below) that the Deceased made specific representations to her about her present or future ownership of Breakfast Point. The Deceased’s 2014 conduct suggests an instinctively uncompromising attitude when it came to sharing what was his. It is improbable that the same man who got the plaintiff to enter the 2004 deed, and who in 2014 went to the police over $12,000, made those specific representations in 2008.

122. That is part of the context in which, for the reasons developed below, I am not satisfied that the Deceased made the statements or promises to the plaintiff of which she gives evidence, to the effect that she had or would have in the future part or outright ownership of Breakfast Point.

123. One other aspect of the plaintiff’s evidence about the 2014 incident should be noted.

124. On the plaintiff’s evidence, the Deceased told her, “My money is your money too.” The next sentence in her affidavit indicates that she understood his motive for saying that was to persuade the plaintiff to return to Pindimar to care for him: “Come back and look after me. It is all ok.” She acknowledged as much in a non-responsive answer towards the end of this passage of cross-examination: “Because he want me to come back to him. That’s why he, he make, he make those words just to make me come back to him” (Tcpt, 8 October 2024, 52.29). And, as the plaintiff said at [56] of her 7 June 2024 affidavit, “Based on the statements made by the Deceased to me I returned to the Pindimar property and continued to look after him.”

125. On that evidence, in 2014 the plaintiff continued to understand her relationship with the Deceased as having the same transactional element that had manifested in 2004. But that transactional understanding could have arisen without the Deceased making any express representations to her. The same understanding could arise by implication out of the Deceased’s conduct over many years, leading the plaintiff to expect that she would get “something” in return for remaining with the Deceased and looking after him, including through his illnesses, until his death. I consider it likely that, consistently with his personality and the couple’s circumstances, the Deceased was happy for the plaintiff to believe, as indeed he intended, that if they remained together until he died, he would look after her in his will. In light of the events of 2004 and his knowledge of the plaintiff’s financial position, I infer that the Deceased understood that the “something” which the plaintiff expected to receive was an interest in property of some kind that would protect her from being “kicked out” of her home.

126. Specifically as to the incident about the cash withdrawals in 2014, I consider it more likely than not that the Deceased said something to the plaintiff to persuade her to return to Pindimar. That may well have included an assurance that matters of money would not lead him to complain to the police about her again. I am not satisfied on the balance of probabilities that the Deceased went as far as saying to the plaintiff words to the effect, “My money is your money too.” But I do not think that makes any difference for present purposes. Even if he had said something to that effect, the plaintiff clearly did not understand him literally, i.e., that she would thereafter be a joint owner of all his money, or, for that matter, of all his other property. But unless any such statement is to be understood literally, it lacks sufficiently precise content to assist in resolving the questions on which disposition of the summons turns.

Evidence specific to Breakfast Point: the plaintiff’s conversations with the Deceased; the $2,000 deposit; and the sales advice

127. The plaintiff gave evidence in her affidavits of a number of conversations with the Deceased in which she says he made representations about her present or future ownership of Breakfast Point, which she says gave rise to an understanding or expectation on her part. As will be seen, the plaintiff’s evidence about these matters was to some extent inconsistent as to the nature and extent of her ownership (although an unsophisticated layperson may not have understood them to be so).

128. The plaintiff’s answers in cross-examination were also not always consistent. Nevertheless, she generally answered with conviction when she was being contradicted. Her responses were consistent with a genuine belief in her entitlement to some form of ownership of Breakfast Point. However, for the reasons given above, I do not consider the sincerity with which the plaintiff gave her evidence to provide great assistance in determining whether it is reliable.

The conversation in the first affidavit, the $2,000 deposit and the sales advice

129. In her first affidavit (made on 9 October 2023), the plaintiff deposed to only one conversation on the topic of ownership of Breakfast Point, at the time of purchase in 2008.

130. She gave evidence that in the period between 2002 and August 2008, the Deceased, the plaintiff and her two sons lived together as a family at the home in Putney. In 2006, the Deceased sold that property with an extended settlement. The plaintiff gave evidence that the Deceased said to her words to the effect, “I want to retire and move away from here”, to which she replied, “My boys are settled in school here so we need to stay in Sydney close to their schools.” The plaintiff says she commenced looking for a new home to live in, and in July 2008 she saw an advertisement for the Breakfast Point property. She said that she and the Deceased decided to buy the property. She gave the following evidence in her first affidavit at [50]-[53]:

“On 10 July 2008, a $2,000.00 part deposit was paid. This was paid by me in cash. I had saved money working for Kincare and at the Body Shape Gym creche. I gave the deceased $2,000.00 to pay the deposit. A Sales Advice was completed in our names. …

The contract price was $770,000.00. The deceased paid the balance of the purchase price. The deceased said words to the effect of:

‘This is your place. It is for you and the boys.’

On 18 August 2008, the purchase of the property … was completed. I believed that the property was in joint names. I only became aware in May 2023 when I was shown the title search that the property was purchased in the deceased’s name only. …

In August 2008 the deceased, Scott, Mike and I moved into the Breakfast Point property. …”

131. Before turning to the plaintiff’s evidence of what the Deceased said (“This is your place. It is for you and the boys.”) and what she believed (“that the property was in joint names”), it is convenient to address the sales advice and the $2,000 deposit.

132. The plaintiff annexed to her first affidavit photographs of two versions of the sales advice dated 10 July 2008. The first version is a printed form with handwritten details; the second is a typed-up version. Under the heading “Purchaser Details” each version names the Deceased and the plaintiff, although the plaintiff is named as “Rosabelle Baldwin Fisher” (and in the handwritten version as “Mrs”).

133. Each version of the sales advice also records an initial “Part Deposit” of $2,000. The handwritten version identifies the “Deposit on Exchange” as $75,000, on a “Contract Price” of $750,000. The corresponding figures on the typed-up version are $77,000 and $770,000. Although the plaintiff was cross-examined at some length about the fact that the initial part deposit was paid by cheque, not cash, and about the fuller account of the purchase that she gave at [12]-[22] of her second affidavit, I did not find that evidence ultimately to be inconsistent with the account given at [49]-[52] of the plaintiff’s first affidavit, particularly given that the receipt she annexed to her affidavit itself identified that the initial payment of $2,000 had been made by cheque. I accept the plaintiff’s evidence that she paid $2,000 for the initial deposit, which is also corroborated by her son Mike’s evidence under cross-examination that he knew at the time that his mother had contributed “a little deposit, just to chip in I guess”.

319. One way in which to deal with the residuary beneficiaries’ interests would be to treat Madison’s share in the residue as available to fund the provision to be made in favour of the plaintiff. That is, to exercise the Court’s s 66(2) power to adjust the provision made for Madison downwards by reducing her share in the distribution to be made upon the sale of Pindimar by $350,000, being (at the high end of the valuation range) the difference in value between Pindimar and Breakfast Point. The effect would be that, with respect to Nerida, Louise and Billy, the provision currently made by the Will would be substantially maintained. But doing that at Madison’s expense would be contrary to the express submission made on behalf of the defendant. It would also be contrary to the testator’s intention of equality. I would not make such an adjustment without giving Madison and the three siblings an opportunity to be heard on the question whether the order was “just and equitable” within the meaning of s 66(2).

320. An alternative approach would be to treat an amount equal to Madison’s share as available to fund the provision to be made in favour of the plaintiff, while maintaining the equal shares of all four residuary beneficiaries in whatever is the residue following the order. That is, to make no s 66(2) order. That approach would accord with the defendant’s submission and would respect what I understand to be the wishes of the residuary beneficiaries. It would also, at least as to equality, respect the testator’s intention. Subject to what I say in the next paragraph, that is the approach I propose to take in making final orders. By not making any s 66(2) adjustment, the effect of the orders I propose will be that the four residuary beneficiaries will share equally the burden of the provision I propose to make in favour of the plaintiff (the substitution of a life interest in Breakfast Point for the life interest in Pindimar).

321. The orders I propose to make depend on my understanding that not making a s 66(2) adjustment accords with the wishes of not only the defendant Nerida, but also of the other residuary beneficiaries — in particular, Louise and Billy. Accordingly, I will make directions:

1. for the defendant to notify each of Louise, Billy and Madison of what is said at [308]-[321] (i.e., that I propose to order the substitution of a portable life interest in Breakfast Point for the plaintiff’s portable life interest in Pindimar, without making any adjustment to the interests of the residuary beneficiaries pursuant to s 66(2) of the Act), and

2. giving any of the residuary beneficiaries who wishes to submit that I should make a s 66(2) order an opportunity to do so.

The provision that ought to be made

323. It follows from the conclusions above that the power in s 59 is engaged on the plaintiff’s application. It also follows that I consider that the provision out of the estate of the Deceased that ought to be made for the maintenance, education or advancement in life of the plaintiff is a portable life interest in Breakfast Point, in substitution for the provision made with respect to the portable life interest in Pindimar, but otherwise on the same terms.

324. I reject the plaintiff’s claim insofar as it seeks provision by way of an absolute devise of Breakfast Point.

325. I also reject the plaintiff’s claim insofar as it seeks provision by way of the sum of $25,000 to purchase a motor vehicle.

Conclusion and orders

326. The provision I would order is described above. I will direct the parties to bring in an agreed form of order to give effect to those conclusions within 14 days.

327. Subject to the s 66(2) issue and to costs, the summons should otherwise be dismissed.

328. The plaintiff has had a significant measure of success on her application, but she did not achieve the full provision that she sought. The parties indicated that they would wish to be heard as to costs, and I will direct the parties to exchange short submissions in writing.

329. The orders of the Court will be:

1. Direct the defendant:

1. by 5pm on 15 April 2025 to notify each of Louise Anne Gaggin, William “Billy” Stanley Fisher, and Madison Jade Fisher of [308]-[321] of the Court’s reasons; and

2. by 5pm on 22 April 2025 to inform the Court and the plaintiff whether any of the defendant, Ms Gaggin, Mr Fisher or Ms Fisher wishes to submit that the Court should make an order adjusting the interests of the residuary beneficiaries pursuant to s 66(2) of the Succession Act 2006 (NSW).

2. In the event that any of the persons identified in order 1(b) so wishes, direct that by 5pm on 29 April 2025 they file and serve submissions not exceeding 3 pages in length on the question whether, and in what terms, the Court should make a s 66(2) order.

3. In the event that none of those persons so wishes, direct the parties by 5pm on 29 April 2025 to bring in an agreed form of order (save as to costs) to give effect to the provision I have decided to make.

4. Direct the parties by 5pm on 29 April 2025 to file and serve by exchange submissions not exceeding three pages in length on costs.

SCHEDULE

The Deceased’s relationship with the other beneficiaries and their current financial circumstances and needs

330. As noted above, save in respect of the evidence that I made an order suppressing, I have addressed the detailed evidence about these matters separately for each of Nerida, Louise, Billy and Madison in this Schedule. Unless otherwise stated, I accept that evidence.

331. The unchallenged evidence of Nerida, Louise and Billy, which was in some respects corroborated by the plaintiff in cross-examination, establishes that the Deceased was a controlling, volatile, sometimes charming, sometimes violent bully who abused each of the siblings in different ways that have had lasting effects on them. The evidence, which I accept, disclosed serious child abuse, including sexual assaults on some but not all of his children.

The defendant, Nerida

332. Nerida is aged 62 years. She gave evidence that the Deceased used physical violence to discipline her and her siblings as children. She said that on an average non-school day she spent 5 to 6 hours doing chores for her father. She also gave evidence that the Deceased was a thoroughgoing racist.

333. She said that the Deceased never apologised to her or acknowledged what he had done to her as a child despite her attempting to engage him on the subject. Nevertheless, save for the months before his death, she said she always maintained a relationship with her father and stayed in contact with him. Nerida said that, at around the Christmas before the Deceased died, she had a conversation with her father in which he said words to the effect, “I want to know where your Mum is. I want to shoot her and cut her throat.” That led to an argument the result of which was that Nerida did not communicate with her father until he called and left a voicemail apologising weeks later.

334. Nerida gave evidence that she has been employed as a florist for more than 25 years. She lives alone. As at September 2024, her weekly income after tax was $720.84 and her estimated weekly expenditure in May 2024 was $472.

335. As at September 2024, she owned the house in which she lives, valued at $1,200,000; she had cash and other liquid assets of approximately $160,000; and she had superannuation of a little over $110,000. She had lent various sums to her daughter and to her son’s former partner, which she did not expect to recover. Her only liability was less than $500 on a credit card.

336. She gave evidence that her health was poor. She has high blood pressure and an injury to her left shoulder. She says that she experienced significant abuse by her father but has not sought psychological help as she is anxious about the can of worms that that would open. Although she said she has never been officially diagnosed with any mental health conditions, her doctor has raised with her the possibility of attending a psychologist. She says that she has not done so as she is unable to meet the cost of the amount of psychological assistance she believes she would require.

337. Nerida’s affidavit evidence of her need for provision from her father’s estate (which, as to the figures, I have treated as evidence of her genuine belief, rather than as necessarily establishing the exact figures referred to) may be summarised as follows.

1. Her life expectancy by reference to the Australian Bureau of Statistics tables is a further 26 years.

2. She requires $115,000 to pay for various necessary renovations to her home.

3. She requires remedial massage with acupuncture once a fortnight for the rest of her working life, being a sum of between $10,000 and $15,000 over the next six years.

4. She requires private health insurance at a cost of a minimum of $200 per month for the rest of her life.

5. She plans to travel overseas for the first time in her life in 2025.

6. She wants to buy a new car to replace her existing one which is 10 years old.

7. She would like to work less hard, and to have money to take her grandchildren on a holiday.

8. She estimates that she needs at least $200,000 to pay for weekly psychologist appointments at the rate of $300 per consultation for the rest of her life.

9. She needs much more superannuation to reach the ASFA level of $595,000 to achieve comfortable retirement at the age of 67.

10. She says that, in the future, when the plaintiff no longer requires the benefit she receives from the estate (i.e., the portable life estate), she will receive a top-up from the Deceased’s estate.

338. Nerida was cross-examined about her financial position. Following the sale of the family home in Putney in or about April 2020, Nerida (like her siblings) received a gift of $310,000 from her mother. Nerida’s evidence was that she used $98,000 of this sum to pay off her mortgage. As at the date of the hearing the balance of the gift was $153,000, which was the source of the cash she had in the bank. In cross-examination, Nerida said that she does not expect any additional money from her mother.

339. Nerida was cross-examined as to whether, since receiving the money from her mother, she has been in a position to pay for home renovations, private health insurance and/or psychological treatment. With respect to the home renovations, her response was that she has decided to keep the money because she does not have health insurance and wants to have it “just in case” she requires it for health reasons. When she was asked about her decision not to obtain health insurance, Nerida said she has not yet “had a reason … to be in that situation” but, given her age, she would likely require insurance within the next 12 months (Tcpt, 10 October 2024, 223.46; 224.8). Similarly, when asked as to whether she was in a position to pay for psychological treatment, Nerida explained that she wants to keep the money for “unforeseen things” until she sorts out her finances (Tcpt, 10 October 2024, 224.18-20).

340. Nerida was cross-examined to the effect that she had been in a position to pay for a psychologist since receiving the money from her mother but had not done so. In answer to the proposition that she had $150,000 in the bank, she said, “That’s not just for the psychologist, that’s for - it’s there for unforeseen things and at the time I have just left it there until I can sort things – [sort] financial matters out. I’ve been under a lot of stress this last 18 months to even go there at the moment” (Tcpt, 10 October 2024, 224.18). She was also cross-examined about her evidence that she had not found visiting a psychologist in 2015 and 2016 helpful. The effect of her answers was that the particular one she had seen in the past had not met her needs, and that whether a psychologist would be of assistance to her in the future would depend on the practitioner. When it was put to her that she had no way of knowing whether, if she commenced seeing a psychologist, she would wish to continue attending once a week or once a month or at all, she said she would continue on to the next one. Nerida thus showed a genuine, if somewhat apprehensive, desire to receive psychological assistance, which had not been sought because of her strong concern to preserve her limited existing resources.

341. Nerida was cross-examined on what her financial circumstances would be in the event that she received $450,000 from the Deceased’s estate. She did not dispute that that sum, when combined with her current savings and superannuation, would be sufficient to cover her need for home renovations, remedial massage, private health insurance, leaving a cash balance of approximately $444,000. I note that that the cross-examiner made no allowance for Nerida to receive any psychological treatment in those calculations. I also note that the figure of $444,000 (which was calculated on the basis that Nerida’s existing superannuation balance was available to meet the needs referred to above) is below the level of superannuation Nerida said she required for a comfortable retirement.

342. Nerida was also cross-examined on whether she would obtain any practical benefit from sharing in (along with the other beneficiaries) a remainder interest in a property held on trust for the plaintiff. When it was put to her, Nerida accepted that there is “real doubt” as to whether she will survive the plaintiff (Tcpt, 10 October 2024, 226.26-28). However, she denied that a remainder interest would be of no practical benefit, stating that the fact that the interest would be forwarded on to her siblings would itself be a practical benefit.

Louise

343. Louise is 64 years old. She is the eldest child of her parents.

344. Louise gave evidence that she was scared of her father and of his verbal and physical behaviour. He would give her the strap; he would ridicule her; and she found him unpredictable. Her father gave her multiple chores from an early age.

345. The Deceased ridiculed Louise’s future husband, David. They married when she was 20 years old and she moved out of home. When she was about 22, she asked the Deceased to lend her some money to buy a fireplace. He refused. She borrowed the money from her paternal grandfather. When her father found out, he called her a bitch and struck her with an open palm to the side of her head.

346. She gave evidence of another incident in about 2007 in which she was visiting her mother, who had separated from the Deceased. Her father showed up unannounced. Louise and her father got into an argument which resulted in the Deceased’s punching Louise in the shoulder and the back of her head as she attempted to leave in her car. He yelled at her, “I’m going to kill you, you fat ugly bitch!” Louise said that she reported the incident at the Toukley Police Station and thereafter lived in fear of her father.

347. In 2008, Louise had what she described as a mental breakdown. She had to resign from her nursing job at Central Coast Area Health. She sought help from a psychologist. She was diagnosed with depression and anxiety, with an element of psychosis. Her psychologist told her that her poor mental health was to do with her family dynamics.

348. From 2008 to 2010 she continued working at home, but she has not worked since 2010 due to Post Traumatic Stress Disorder.

349. The Deceased would telephone her from time to time until he died. He would be charming at the start of the call and then work himself into a rage about Louise’s siblings, the plaintiff and what he described as the plaintiff’s “parasite boys”.

350. In April 2020, Louise’s mother sold the remaining property at Putney that had become hers as part of a family law property settlement. When her father found out that the property had been sold, he said to Louise, “I am going to kill the bitch. That was not the agreement.” Louise’s husband David took her mother to make a complaint at the Wyong Police Station. After that, her mother lived with Louise and David for three or four months. Louise was scared for her mother’s life.

351. Louise’s current fortnightly income consists of a Centrelink Disability Support Pension of $841.40, and a superannuation pension of $169.62. David’s current fortnightly income consists of a Centrelink JobSeeker payment of $709.60 and a pension from his superannuation of $416.64.

352. Their joint fortnightly expenses are a little over $2,036, which exceeds their combined fortnightly income. They have been redrawing on their home loan.

353. Using values as at September 2024, Louise’s assets which she owns jointly with David, including the family home at Wyee, were valued at about $1,068,732. They have a mortgage of $62,315. David has no assets in his sole name, but Louise owns a Toyota Fortuna valued at $48,000. She has superannuation of $111,762.83 and David has superannuation of $132,193.28. Louise has no liabilities in her sole name; David has a personal loan of $7,050.

354. Louise’s physical and mental health is poor. She suffers from chronic abdominal pain. She has osteoarthritis in her hips and spine and has had surgery on her hips. She has also had two melanomas removed.

355. She was first diagnosed with depression and anxiety in around 2000, for which she has been treated since that time. She was diagnosed with complex PTSD in around 2008, for which she has been treated since that time.

356. David’s health is poor. He has had a total right reverse shoulder replacement. As at September 2024, he was incapacitated for work due to his shoulder injury.

357. Louise’s affidavit evidence of her need for provision from her father’s estate (which I have treated on the same basis as Nerida’s) may be summarised as follows.

1. Her life expectancy by reference to the Australian Bureau of Statistics tables is a further 24 years.

2. She requires $62,316 to pay off her mortgage, and $7,050 to pay off David’s debt.

3. She requires at least $30,000 for repairs to the roof of her house which is leaking.

4. She requires $20,000 to make necessary accessibility modifications to her house.

5. She requires $2,267.50 to cover the out of pocket expenses for David’s shoulder surgery, expected to take place in December 2024.

6. She is embarrassed by how frugally she and David have to live. If she had more money, she could take a holiday once a year and would not have to scrounge for basic food. She and David, who currently cannot afford to go to dinner at a cafe or restaurant, would go on outings.

7. She attributes her complex mental health diagnoses to the abuse that she suffered by the Deceased. In consequence, she requires regular psychological treatment. She currently attends fortnightly appointments which she is unable to afford. She would like to attend weekly psychologist appointments with a local psychologist and psychiatric appointments as required. The standard rate is $300 per consultation. She therefore says she requires provision of several hundred thousand dollars for weekly psychologist appointments for the rest of her life.

8. She understands that she requires weekly treatments from a physiotherapist and from a chiropractor for the rest of her life, which she estimates as costing a total of $120,000-$200,000.

9. She expects to require $50,000 to pay for ongoing medical issues including a double hip replacement that she expects she will require.

10. She requires the sum of $550,000 to top up her superannuation to the ASFA level for a comfortable retirement for a couple, being $690,000.

11. She expects that in the future, when the plaintiff no longer requires her funds from the estate, Louise would receive a top up which would cover costs in the future.

358. It was suggested to Louise in cross-examination that her family’s dynamics had contributed to her poor mental health. She was also asked about factors that may have contributed to her inability to work. With respect to her employment as a nurse, Louise agreed that her reasons for resigning in 2008 were that she was assaulted and felt mistreated by her employer. She also agreed that she had been mistreated by her sister and that this affected her mental health.

358. In cross-examination, Louise accepted that it would be sufficient for her to see a chiropractor once a month but maintained that it would be necessary for her to visit a physiotherapist weekly.

359. Louise was also cross-examined about what her financial circumstances would be if she received $450,000 from the Deceased’s estate. She agreed that this sum would allow her to repay her mortgage. Earlier in cross-examination Louise had also agreed that once her mortgage is paid off, her living expenses will reduce to approximately $1,500 per fortnight. Louise later accepted that the remaining sum of $390,000 after the repayment of her mortgage would be sufficient to cover hip replacement surgery, modifications to her home and repairs to the roof and to repay David’s personal debt. She also agreed that once those requirements were satisfied, she would have approximately $280,000 to cover her and David’s other needs. Those needs include ongoing psychological care and a retirement income.

360. Louise agreed that because of her age there is real doubt as to whether she will see any real benefit from an entitlement to a remainder interest in a property held on trust for the plaintiff’s lifetime.

361. Louise and David have three children, all now well into adulthood.

Billy

363. Billy is aged 60. Like Nerida, he said that the Deceased was extremely racist, particularly towards Asian people, and that he brought Billy and his siblings up to be racist.

364. He gave evidence that he grew up in an authoritarian, argumentative, aggressive household in which he was constantly afraid of his father. He gave detailed evidence about his father’s violence towards him. He would hide from his father, for which he would be physically punished with a leather belt, the Deceased’s fist, or “anything [the Deceased] could get his hands on.” On his part, the relationship was submissive. He does not recall ever fighting or hitting back out of fear of repercussions.

365. Billy gave evidence that his father’s treatment caused him to have suicidal thoughts which continue to this day. He describes himself as extremely depressed, anxious, non-trusting and suicidal in his late teens. In his early 20s he was homeless for about six months. In his mid-20s he lived with his paternal grandfather for a period, hiding from the Deceased when he visited. On one occasion, the Deceased discovered that Billy was present and punched him in the back of his head.

366. Billy was homeless again in his mid-30s, sleeping on the street. While living with Louise in 2000 he attempted suicide after experiencing flashbacks and thinking about the abuse he had suffered from his father. In around 2008, the Deceased beat Billy so severely that he described his face as unrecognisable, for which the Deceased was convicted of aggravated assault.

367. In about 2008, Billy was diagnosed with chronic depression, Post Traumatic Stress Disorder, anxiety and bi-polar disorder. He tried to avoid contact with his father, but the Deceased continued to contact him to abuse him over the telephone until he died; Billy would not talk back to him. Billy gives evidence that the last time he engaged in conversation with his father would have been at the time of the assault in 2008. He attributes the medication and mental health support that he requires to “a lifetime of emotional, physical and mental abuse from my father”.

368. Billy lives with his friend Shirley Kennedy at Winston Hills in New South Wales.

369. As at September 2024, Billy’s fortnightly income consists of a Centrelink JobSeeker payment of $958.67.

370. His fortnightly expenditure is $1,141.

371. His main asset is a property at Green Point, which he owns as joint tenant with Ms Kennedy, worth $600,000 (Green Point Property). He also owns a Toyota Hilux valued at $25,000, and has a little over $2,000 in bank accounts.

372. He and Ms Kennedy have a joint liability of $47,119.81 under a mortgage over the Green Point Property. He has no liabilities in his sole name.

373. He has superannuation of about $35,000.

374. Billy’s mental health is poor. He continues to suffer from chronic depression and anxiety and (he understands) Post Traumatic Stress Disorder. He experiences daily symptoms of anxiety, confusion, nauseousness, chest pain, isolation, low self-esteem, and suicidal thoughts. He suffers from bi-polar disorder which makes him unmotivated and unsure. He also suffers from myocarditis (which causes fatigue), arthritis and hyperthyroidism.

375. Billy’s affidavit evidence of his need for provision from his father’s estate (which I have treated on the same basis as Nerida’s and Louise’s) may be summarised as follows.

1. His life expectancy by reference to the Australian Bureau of Statistics tables is a further 25 years.

2. He requires the sum of $47,119.81 to pay off his mortgage.

3. He requires $300,000 to buy Ms Kennedy out of her portion of the Green Point Property.

4. He requires $115,000 to make various repairs to the house at Green Point.

5. He understands that, due to the abuse he received from his father, he requires regular psychological treatment which he cannot afford. Under his updated mental health plan, he will be able to get 10 free sessions with a psychologist per year. He calculates the sum required to pay for weekly psychologist appointments beyond those 10 for the rest of his life as at least $200,000, calculated on the basis that each consultation is $300.

6. Billy says that he is finding life overwhelming and that his mental health has got much worse, particularly with everything going on with his father’s estate. He says he often leaves the shops without the groceries he needed to buy. He calculates that he requires $24,591.84 to pay for one hour of weekday assistance per week until he reaches retirement age, when he may have access to different support tools.

7. He says that he requires the sum of $75,000 to maintain his physical health, although this was not elaborated upon, and as a buffer for any future treatment he may need.

8. His understanding is that he is currently unable to work due to his poor health. He requires $550,000 to top up his superannuation in order to have a comfortable retirement from the age of 67.

9. He says he leads quiet and isolated life. He would like to buy a new motorcycle for $30,000 so that he could socialise with others on group rides as he formerly did.

10. He would like to have more money in order to be able to buy his three-year-old grandson treats and to take him on outings.

11. He says that when the plaintiff no longer needs her part of the estate, given his limited superannuation he will need the additional funds.

376. Billy was cross-examined about his mental health as well as his psychiatric and physical health conditions. He denied that recreational drug use in the 1990s had contributed to these issues. He did not accept that his medical conditions affected his relationship with or feelings about the Deceased.

377. Billy was cross-examined at some length about his interest in the Green Point Property and his relationship with Ms Kennedy. This included the following:

“Q. So just to summarise, is it the case that, firstly, you were the only person that put money towards the purchase of the property?

A. That’s correct.

Q. And secondly, you were the only person who’s made repayments of the loan that was taken out to fund the purchase?

A. That’s correct.

Q. So Shirley hasn’t put in any money at all?

A. None whatsoever.”

(Tcpt, 10 October 2024, 237.49-238.8)

378. Billy denied that he had purchased the property in joint names with Ms Kennedy and paid the mortgage because he wished to advance funds for her benefit. He said that Ms Kennedy became a joint owner of the property for the purpose of assisting him in obtaining a loan because he could not get one on his own, that she is someone that he has known for a long time and was a trustworthy partner to do that.

379. He said their relationship is not a romantic or sexual one, and that he has never assisted Ms Kennedy with the care and support of her daughters.

380. It was put to Billy that he would take into account his contributions to the purchase price and mortgage repayments when calculating the amount required to buy out Ms Kennedy’s interest in the property. Although Billy did not seem to follow the calculations that were put to him in cross-examination, when it was put that he would need no more than $130,000 to buy out Ms Kennedy’s interest he stated,

“When we’ve talked about how it is now, that’s how I’ve been sort of thinking it, yes.”

(Tcpt, 10 October 2024, 241.29-30).

381. When questioned on his view of Ms Kennedy’s understanding of the situation, Billy agreed that the two of them have had discussions about the topic, but he denied that that they have reached an agreement.

382. Billy’s evidence that he requires provision for on-going psychiatric and psychological treatment was also the subject of cross-examination. Billy did not agree that he would not see a psychiatrist more than once a month, stating that it “could be once a week” (Tcpt, 10 October 2024. 244.21). He also did not accept that he cannot know if he will want to attend weekly sessions or that it is unlikely that he will attend weekly sessions consistently.

383. In his affidavit evidence, Billy referred to the National Disability Insurance Scheme (NDIS) support calculators to quantify the provision that he would need in order to obtain the assistance he requires to help him with household tasks. In cross-examination, Billy explained that he is not aware of the type of assistance that the NDIS can provide and has not discussed it with his doctor. Billy agreed, when it was put to him, that it would be a good idea to apply to the NDIS for funding for a support person to assist him with everyday tasks.

384. Billy was also cross-examined about what his financial circumstances would be in the event that he received $450,000 from the Deceased’s estate. He agreed that $270,000 would “[h]ypothetically” be enough to buy out Ms Kennedy’s interest in the Green Point Property, pay off his share of the mortgage and undertake renovations on the property (Tcpt, 10 October 2024, 242.14-17). He also accepted that the remaining $180,000 could be used as additional spending money, for psychologist appointments or to buy a new motorbike. He was not cross-examined on the other items in his evidence on his need for provision.

385. Billy disagreed that his entitlement to a share in the remainder interest in a property held on trust for the plaintiff’s lifetime is of no real practical benefit to him.

Madison

386. Madison is aged 27. There is no suggestion in her evidence that she suffered any ill-treatment at the hands of the Deceased.

387. As at the date of the hearing, she was working as an Administrative Assistant in Mental Health Services, nine days per fortnight. Madison and her partner James, who is 29, rent their house near Wagga Wagga. Madison is pregnant with their first child.

388. As at September 2024, Madison’s fortnightly gross income is $2,340.65. The sum of $631.78 of her salary is packaged, and goes towards her rent and some groceries. Her net income after deductions and salary sacrificing is $1,514.87 per fortnight.

389. James’ fortnightly net income varies according to his shifts. After a deduction for salary packaging, James’s payslips in evidence show his net pay after tax as varying between $2,324 and $2,155 per fortnight.

390. Their estimated fortnightly expenditure is $3,266.

391. As at 30 June 2024, Madison and James had superannuation of $25,176 and $31,485, respectively.

392. They own motor vehicles valued at $9,000 and $2,500, respectively. They each have small sums in the bank. They have one substantial joint asset which is a savings accelerator account containing $191,075. They are saving for a house deposit.

393. They have no liabilities.

394. Madison’s affidavit evidence of her need for provision from her grandfather’s estate (which I treat on the same basis as the sibling beneficiaries) may be summarised as follows.

1. She requires $10,000 as a buffer for any unexpected medical costs associated with pregnancy and post-natal care.

2. She wishes to purchase a suitable 3-4 bedroom house for her growing family. She and James plan to move to Queensland within the next three years. Examples of houses which have sold recently that would be suitable are in the price range $840,000 to $880,000.

3. She says that the immediate funds distributed from the estate would go towards the birth of their child and the purchase of the new home. Over time, when the plaintiff no longer required the funds from the estate, the balance of any monies distributed to her would go towards paying off debts and mortgages.

4. She and James do not have private health insurance, but would like to obtain it. The expected cost is approximately $2,826.98 per year.

5. She requires $53,300 to buy a safe replacement vehicle for James’s current car.

6. She requires about $5,000 to cover the cost of wisdom tooth removal surgery for James, and $2,000 to cover the cost of new orthotics for herself.

7. She says that she and James have prioritised saving over things like travel.

8. She wishes to take 12 months parental leave when the baby is born. When on parental leave, her income from various entitlements will be reduced to a maximum of $21,725.20 before tax, a substantial reduction from her current gross income of $60,856.90.

395. Madison was cross-examined about her and James’ fortnightly expenditure and their capacity to save. She agreed that their regular fortnightly expenses paid after salary sacrifice are about $2,100. She also accepted that together, her and James’ combined income amounts to approximately $3,800 per fortnight. Although Madison did not accept that she and James should thus be in a position to save approximately $1,700 of their combined income each fortnight, she agreed that they were able to save $10,000 (including interest) between July and September 2024.

396. Madison further agreed that, putting aside her evidence that she needs provision to purchase a home, her and James’ savings of $190,000 are sufficient to cover her requirements for money for unexpected medical costs, private health insurance, a new car, the removal of James’ wisdom teeth, new orthotics and the difference between Madison’s maternity leave and her usual income.

397. Madison also agreed that, in the event that she received $450,000 from the Deceased’s estate, she would need to take out a home loan of $400,000 to $450,000 to purchase a suitable property for her family. When it was put to her that she could fund repayments for a loan of that amount from the income that she and James currently earn, she responded, “Yes, we would try and make it work” (Tcpt, 10 October 2024, 166.43-45).

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