Estrella v McDonald
[2012] VSC 62
•29 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2009 7757
| ESTRELLA | Plaintiff |
| v | |
| McDONALD AND ORS | Defendant |
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JUDGE: | LANSDOWNE AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 8, 9, 10, 14 June 2011 | |
DATE OF JUDGMENT: | 29 February 2012 | |
CASE MAY BE CITED AS: | Estrella v McDonald and ors | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 62 | 1st Revision 2 March 2012 |
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TESTATOR’S FAMILY MAINTENANCE-Plaintiff claims as domestic or de facto partner of the deceased-No provision for plaintiff in the will- four children beneficiaries-plaintiff and deceased not living together at the deceased’s death-covert relationship-homosexual relationship-whether it is necessary to establish a de facto relationship under s. 91 of the Administration and Probate Act 1958-significance of Relationships Act 2008-whether or not a domestic partnership or de facto relationship-promises made by deceased to make financial provision for the plaintiff-whether the plaintiff a person for whom the testator had a responsibility to make provision-further provision ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | R B Phillips | Johansson Solicitors |
| For the First and Second Defendants | S F McNab | D J Thwaites |
| For the Third and Fourth Defendants | R H Miller | Michael Kelly & Co |
TABLE OF CONTENTS
INTRODUCTION
POWER TO AWARD PROVISION: THE LAW
Is it necessary to establish a de facto relationship?
Relationships Act 2008
Is it significant the relationship was said to be a homosexual one?
BACKGROUND
The deceased’s marriage and children
The deceased’s wills and the estate
RELATIONSHIP BETWEEN THE PLAINTIFF AND THE DECEASED: EVIDENCE
Early years 1978-1983
First visit to Australia 1983
The plaintiff moves to Australia 1985
Working in Australia away from Melbourne 1996-2000
Melbourne 2000-2002
Overseas work from 2002
2003
2004
2005-2006
2007
2008
The evidence of the deceased’s family as to his relationship with the plaintiff
Business proposals
Assessment of the plaintiff’s evidence in relation to business proposals
Evidence of the deceased’s accountant
Conclusions as to the business proposals
The plaintiff’s witnesses
THE PLAINTIFF’S RELATIONSHIP WITH THE DECEASED: DISCUSSION AND FINDINGS
1985-1996
From 1996
ASSESSMENT OF S 91(4) FACTORS
Section 91(4)(e): any family or other relationship between the deceased and the plaintiff, including the nature of the relationship and, where relevant, the length of the relationship
Section 91(4)(f): any obligations or responsibilities of the deceased to the plaintiff and beneficiaries
Section 91(4)(g): the size and nature of the estate and any charges or liabilities to which it is subject
Section 91(4)(h): financial resources (including earning capacity) and the financial needs of the plaintiff and any beneficiary at the time of the hearing and for the foreseeable future
Section 91(4)(i): any physical, mental or intellectual disability of the plaintiff or any beneficiary
Section 91(4)(j): the plaintiff’s age
Section 91(4) (n): liability of any other person to maintain plaintiff
Section 91(4)(k): any contribution (not for adequate consideration) by the plaintiff to the building up of the estate or the welfare of the deceased or family of the deceased
Section 91(4)(l): any benefits previously given by the deceased person to the plaintiff or any beneficiary
Section 91(4)(m): whether the plaintiff was being maintained by the deceased before his death and, if relevant, the extent to which and the basis upon which the deceased had assumed that responsibility
Section 91(4)(o): the character and conduct of the plaintiff or any other person
Section 91(4)(p): any other matter the Court considers relevant
CONCLUSION: JURISDICTION
CONCLUSION: AMOUNT OF PROVISION
WHICH BENEFICIARIES TO BEAR BURDEN OF FURTHER PROVISION
ORDERS
HER HONOUR:
INTRODUCTION
By originating motion filed 15 July 2009 the plaintiff seeks provision from the estate of Leon Robins, who died 28 September 2008. By his will dated 13 September 2005, the deceased appointed his two daughters, Melanie McDonald and Bronwen Wilson, his executors and trustees and divided his estate into four equal shares. He gave one quarter share to Ms McDonald, one quarter share to Ms Wilson, and appointed them trustees for the remaining two shares to hold on trust for his two sons, Jonathan and Andrew, during their lifetimes, and thereafter to distribute the balance to the six grandchildren that survived him. He made no provision for the plaintiff. By the commencement of the trial there was no dispute that the net value of the estate as at the trial was $2,501,049.
The executors are the first and second defendants. In December 2009 consent orders were made joining the third and fourth defendants, who are the sons Andrew and Jonathan. The third defendant, Andrew Robins, is profoundly mentally disabled and is represented by his litigation guardian, his mother Phyllis Robins, the former wife of the deceased.
The application was heard before me at trial commencing 6 June 2011 following a referral by Justice Habersberger made pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005 on 2 June 2011.
The plaintiff asserts that he was the same sex de facto or domestic partner of the deceased from December 1985 when he moved from the Philippines to the deceased’s death, notwithstanding that for much of the twelve years prior to the deceased’s death i.e. from 1996 the plaintiff worked away from Melbourne and so did not live full time with the deceased. The plaintiff seeks the sum of $900,000, on the basis that he was in the same position as a second spouse. His claim is for a sum sufficient to allow him to purchase a house, capital to provide an income stream and a nest egg.
The defendants do not deny that the plaintiff lived in the deceased’s home between December 1985 and April 1996, nor that he returned from working away and stayed at the deceased’s home on some occasions thereafter, but they say these occasions were few and for short periods of time. They deny any romantic or de facto relationship between the deceased and the plaintiff at any time. They assert that between 1985 and 1996 the plaintiff was a boarder or lodger in the deceased’s home who was not required to pay rent because he carried out domestic services for the deceased. They assert that by the time of the deceased’s death the relationship was at most one of friendship, or convenience. As a consequence they say that the deceased had no responsibility to make provision for the plaintiff and so the jurisdiction of the Court is not enlivened.
The defendants submit that in the event the Court does consider that the deceased had a responsibility to make provision for the plaintiff, such further provision should be made by way of a “small next egg” of approximately $50,000, being in the order of legacies left by the deceased to the plaintiff by earlier wills.
The plaintiff was cross examined over parts of four days, Monday 6 June to Thursday 9 June. He called three witnesses in support, who were interposed. These were Mr Duane Eaks, Ms Carol Inglis and Mr Thomas, known as Gavan, MacManus. All were friends principally of the deceased, although they had met the plaintiff in the deceased’s company, and became more friendly with him after the deceased’s death. Mr Eaks and Ms Inglis are members of a church at which the deceased regularly played the organ. Mr MacManus also shared musical interests of the deceased, and did voluntary work with him. They gave evidence as to what they observed of the relationship between the deceased and the plaintiff.
The deceased’s children, Melanie, Bronwen and Jonathan (known as Jay), and his former wife, Mrs Phyllis Joan Robins (known as Joan Robins), gave evidence for the defendants, together with the deceased’s accountant, Mr Christodoulou. On the first day of the trial, I ruled that certain evidence contained in Jay’s affidavit was inadmissible, on the grounds set out in the ruling. On Friday 10 June 2011 I allowed the plaintiff’s objection to related evidence sought to be adduced of Mrs Robins orally.
This was not a case where the witnesses gave conflicting accounts of the relevant facts, and it is necessary to determine which account is more likely correct. The defendants did not contest much of the plaintiff’s account of the externally observable events. They were not in a position to do so, as the plaintiff concedes that the sexual and domestic relationship he asserts between himself and the deceased was concealed from the deceased’s family. The defendants rely on inferences of fact to be drawn from the evidence, and the conclusion they say should be reached given the statutory criteria for the making of an award of provision.
I consider that all the witnesses gave their evidence honestly, and to the best of their abilities. I have considered in detail what documentary or third party evidence exists, in particular as to whether such evidence corroborates the plaintiff’s account, which would otherwise largely rely on his testimony alone. I have not accepted the plaintiff’s case that at the time of the deceased’s death he was his domestic partner, although I have found that he was in the past, and he and the deceased intended to resume that form of relationship. Notwithstanding that I do not consider the plaintiff’s characterisation of the relationship as at the deceased’s death is established, I have concluded that the plaintiff has established that the deceased had a responsibility to make provision for him, and so jurisdiction to make an award is established. I consider that such award should be in the sum of $300,000, to be borne as to two thirds by Melanie and Bronwen, and as to one third by Andrew and Jay.
POWER TO AWARD PROVISION: THE LAW
The power to afford provision to an applicant, whether or not already a beneficiary under the will, is afforded by Section 91 of the Administration and Probate Act 1958 (‘the Act”). The section provides as follows:
(1)Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
(2)The Court must not make an order under subsection (1) in favour of a person unless—
(a)that person has applied for the order; or
(b)another person has applied for the order on behalf of that person.
(3)The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by—
(a) his or her will (if any); or
(b) the operation of the provisions of Part I, Division 6; or
(c) both the will and the operation of the provisions—
does not make adequate provision for the proper maintenance and support of the person.
(4)The Court in determining—
(a)whether or not the deceased had responsibility to make provision for a person; and
(b)whether or not the distribution of the estate of the deceased person as effected by—
(i)the deceased's will; or
(ii)the operation of the provisions of Part I, Division 6; or
(iii)both the will and the operation of the provisions—
makes adequate provision for the proper maintenance and support of the person; and
(c)the amount of provision (if any) which the Court may order for the person; and
(d)any other matter related to an application for an order under subsection (1)—
must have regard to—
(e)any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f)any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g)the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h)the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i)any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j)the age of the applicant;
(k)any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l)any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m)whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n)the liability of any other person to maintain the applicant;
(o)the character and conduct of the applicant or any other person;
(p)any other matter the Court considers relevant.
Consideration of a claim under s 91 is undertaken in two stages. The first stage grounds the Court’s jurisdiction and requires the plaintiff to establish both that the deceased had a responsibility to make provision for him or her (s 91(1)) and that the will has not made adequate provision for his or her proper maintenance and support (s 91(3)). If the plaintiff so establishes, the Court moves to a discretionary consideration of the proper amount of further provision. In respect of both stages, the Court is required to consider the factors enumerated in s 91(4).[1]
[1]Per the Court of Appeal in Blair v Blair (2004) 10 VR 69 (“Blair”) and Forsyth v Sinclair [2010] VSCA 147 Neave JA at [58]-[66].
In reasoning from the s 91(4) factors to a conclusion that the testator had a responsibility to make provision for the claimant and had failed to make adequate provision for his or her proper maintenance and support, the Court is required to apply a standard or make a value judgment,[2] often expressed as the “moral duty” of the testator. What is considered a testator’s moral duty will depend on prevailing community attitudes.[3]
[2]Blair v Blair (2004) 10 VR 69, per Nettle JA at [41]; Forsyth v Sinclair [2010] VSCA 147, per Neave JA at [83].
[3]Forsyth v Sinclair, per Neave JA ibid.
In this case the will made no provision for the plaintiff. Accordingly, if the Court is satisfied that the testator had a responsibility to make provision for the plaintiff, there is no contested issue as to whether adequate provision has been made and jurisdiction to make an award is established. In undertaking the next stage i.e. determining what further provision to order, the Court is required to exercise its discretion so as to not “transgress unnecessarily upon the (testator’s) freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just (testator)”.[4]
[4]McKenzie v Topp, [2004] VSC 90, per Nettle J. at [63]
The Court determines whether or not the testator made adequate provision for the claimant by consideration of the relevant facts and circumstances as at the testator’s death. The question of what further provision to order is determined having regard to the facts and circumstances at trial.[5]
[5]Prosser v Twiss [1970] VR 225 at 232 per Lush J.
Is it necessary to establish a de facto relationship?
At the heart of this case is determination of the nature of the relationship between the deceased and the plaintiff. It is evident from the words of the section that s 91 does not require the plaintiff to establish a relationship of any particular character. Previous cases have confirmed that the section extends to relationships other than those of blood or marriage.[6] Accordingly, it was not necessary for the plaintiff to attach a label to his relationship to the deceased to ground his case. The plaintiff has, however, in his evidence put his case squarely as one of a particular kind, being a de facto or domestic relationship, and the defendants have responded to the claim as so put. As set out in more detail below, I accept the plaintiff’s evidence that this is how he saw the relationship. Characterisation of the relationship in this way also carries the advantage of a body of previous determinations in relation to further provision for de facto or subsequent spouses as against the children of the first marriage. The quantum of the claim the plaintiff makes if responsibility is established draws on those cases. Attaching a label may also have the advantage of more readily invoking community expectations in relation to a relationship of that kind. As set out earlier, the Court is required to have regard to community expectations in determining if the testator had a responsibility to provide for the plaintiff.
[6]See Forsyth v Sinclair per Neave JA at [85] and following and the cases there cited.
In oral closing submissions, counsel for the plaintiff submitted, by way of what he described as a “fallback” argument, that even if the Court was not satisfied that the plaintiff and deceased were domestic partners at the deceased’s death, nevertheless the relationship between them was such that the deceased had a responsibility to make provision for the plaintiff’s proper maintenance and support so as to enliven the Court’s jurisdiction. He appeared to concede that if this was the view the Court took, then the amount awarded may be less, but did not put a figure on what was sought in that eventuality.[7]
[7]Transcript page 544 line 10-page 545 line 4, and page 571 line 14-page 572 line 7.
The defendants concede that the legislation does not require the relationship to be of any particular kind, but submit that the case was put as one of a de facto relationship, and deny that the plaintiff has proved such a relationship.[8] The defendants say that in determining whether or not the relationship was of that character the Court can draw assistance from the definition of “domestic relationship” in section 35(1) of the Relationships Act 2008, and the list of possible factors to be considered in determining if such a relationship exists as set out in s 35(2). I will return to this submission shortly.
[8]Transcript pages 456-457 line 10.
The law as it applies to a plaintiff who can be described as the domestic partner of the deceased was most recently considered by the Court of Appeal in Forsyth v Sinclair (“Forsyth”).[9] In that case the Court of Appeal dismissed an appeal from a decision affording Ms Sinclair one half of the deceased’s estate on the basis of the intimate sexual and emotional relationship between them. The appellant, the defendant executor and the deceased’s brother, had contended that Ms Sinclair was merely one of the deceased’s friends. Significantly, Ms Sinclair and the deceased did not live together, and, indeed, Ms Sinclair continued throughout their relationship (of about 12 years in length) to live in the same home as her estranged husband, with their children. The trial judge found that notwithstanding this the plaintiff and the deceased were for the years immediately preceding his death on terms of “deep and intimate affection” and, of crucial significance in his determination, “the shaping force in the lives of each over this long period, which only ended with Mr Forsyth’s death, was their love for each other.” He found that they had “shared, on a daily basis over many uninterrupted years… nearly all the most significant moments of their lives.”[10]
[9]{2010] VSCA 147
[10]Per Harper J. Sinclair v Forsyth [2008] VSC 250 at [41].
In the Court of Appeal Justice Neave, with whom Justices Redlich and Habersberger agreed, in the case of Justice Redlich in more guarded terms, rejected the contention of counsel for the appellant that the existence of the responsibility to make provision expressed by s. 91(1) requires the existence of a relationship akin to a family or blood relationship. Justice Neave summarised the question as to whether a testator had a duty to make adequate provision for the proper maintenance and support of an applicant under Part IV as being “ultimately a value judgment”, but noted that the circumstances in which such a duty will be found are “not static, but evolve in accordance with prevailing community views and attitudes.”[11]
[11]Forsyth at [83]-[85].
Having indicated that the responsibility to provide is not limited to particular forms of relationship, however, her Honour adopted with approval the caution expressed by Justice Kaye in Unger v Sanchez[12] to the effect that it would be a rare or exceptional case in which a duty to provide was found in respect of a person who was a neighbour or close friend, even if that person had given invaluable service to the testator. Her Honour noted that the plaintiff/respondent in the instant appeal had not, however, been “simply one of the (deceased’s) close friends” and that although the trial judge had not explicitly found that the plaintiff and the deceased in that case were de facto partners, their relationship could have been so described. In a passage relied upon by the plaintiff in these proceedings, she stated:
It seems to me uncontroversial that, according to current community standards, a de facto partner may have a moral duty to make adequate provision for the proper maintenance and support of the other partner.[13]
[12][2009] VSC 541, [70], subsequently successfully appealed, but not on this point.
[13]Forsyth, [89].
The factors considered by Justice Neave to be of significance in determining that the relationship there in question could have been described as a de facto one were that the parties had an exclusive sexual relationship, they were recognised as partners by their joint friends and her family, (although the deceased had denied any romantic relationship to his own family), their relationship was longstanding (12 years) and they planned to marry. She noted that a de facto relationship may exist even if the couple have separate residences and are not financially dependent on each other. [14]
[14]Ibid, [87]-[88].
The plaintiff in Forsyth had given evidence that in the years before the deceased’s death she had stayed at his house four or five nights a week, and over most of the weekend. They had entertained friends together at her home, socialised with her family, gone to social events with friends and were known by those friends as a couple. She said that they had agreed not to tell his family of their relationship, but called twelve other witnesses who gave corroborative evidence to the effect that she had been in a close and intimate relationship with the deceased, and they had treated each other as partners. This evidence was clearly regarded as of significance to the Court of Appeal in dismissing the appeal. In concluding that the trial judge did not err in accepting the plaintiff’s evidence that she and the deceased had decided to keep their relationship private from his family, Justice Neave noted that “If no one else had been aware of the relationship, (the plaintiff’s) evidence would not have been credible, but this was not the case.”[15]
[15]Ibid at [49}
Given the way her judgment is structured it appears to me that Justice Neave, with whom Justice Habersberger agreed, found comfort in disposing of the appeal by describing the relationship there in question as akin to a de facto one. Notwithstanding this, she went on to state that this characterisation was not essential to the disposition of the appeal. She held that even if the plaintiff and deceased were not accurately described as a couple with a close and committed relationship who did not live together, the trial judge did not wrongly conclude that their commitment to each other and the other matters he was required to consider under s 91(4) gave the Court jurisdiction to make an order.[16] These matters included evidence that the deceased had indicated he intended to provide for the plaintiff if she survived him, although he did not change his will in her favour. In relation to that matter, Her Honour held:
Whilst Part IV of the Act does not give the Court power to make an order simply to give effect to the intention or promise of a deceased person to provide for someone else, such a statement of intention is not an irrelevant consideration…A statement made by the deceased about the provision he or she has made or intends to make for the applicant may be taken into account under s 91(4)(p).[17]
[16]Ibid at [90].
[17]Forsyth, ibid, at [98].
Justice Redlich agreed that the factual findings made by the trial judge were open to him on the evidence, and that these findings were sufficient to confer jurisdiction on the Court to make the order that it did. Justice Redlich noted, however, that he considered the instant case “to be at the margin” of cases where a duty to make provision could be found because the relationship between the plaintiff and the testator lacked a number of features generally found in a de facto relationship. He cited the factors that were absent as being lack of common residence, lack of financial dependence by the plaintiff on the testator, and that the plaintiff had made no financial or other significant contribution to the testator’s circumstances. He stated:
Ordinarily a moral duty to provide maintenance and support would not arise unless one or more of such indicia of responsibility were present. But the absence of such features in a relationship does not preclude the possibility that such a moral obligation may arise.[18]
[18]Forsyth, ibid, at [106].
Justice Redlich identified the following findings as having been sufficient to confer jurisdiction in that case:
· that the plaintiff and deceased had a long standing intimate and caring relationship
· they had deep affection for each other
· they shared on a daily basis nearly all the significant moments of their lives
· the plaintiff gave the testator some level of care and support
· their emotional and spiritual bonds were very strong
· they had made a commitment to living together in the future
· the testator had said that he intended to make provision for the plaintiff in the event she survived him.
I conclude from Forsyth that it is uncontroversial that the duty to make provision can be found in the case of a de facto relationship, and, that further, such a relationship may be found to exist notwithstanding the absence of shared residence, shared finances and disclosure of the relationship to the family of the deceased. Further, promises to make provision are a relevant factor to be considered under s 91(4)(p). I also infer, however, that caution needs to be exercised in relation to finding a duty to provide where a non family relationship cannot be fairly described as a de facto one.
Relationships Act 2008
The defendants seek to rely on the factors enumerated in the Relationships Act 2008 (“Relationships Act”) as giving guidance as to when a de facto relationship, there described as a domestic relationship, may be found to exist for the purposes of Part IV. Counsel for the plaintiff did not demur from this course, and indeed may be taken to have agreed with it because he relied on the decision of Justice Pagone in Re the Estate of Sigg (deceased)[19] (“Sigg”). That decision concerned whether or not the applicant was the domestic partner of the deceased for the purposes of qualifying under an intestacy. In that case, Justice Pagone adopted views earlier expressed by Justice Cummins in Dow v Hoskins[20] that “the determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex”. Justice Pagone added:
I agree with those observations and would add that it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities. That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove. That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the provisions of s 51 should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing between legally married couples. [21]
[19][2009] VSC 47
[20][2003] VSC 206
[21] Sigg, [7].
In Sigg, Justice Pagone noted in relation to the applicant’s case that “there are some aspects of the relationship recounted by her that might put her, at best, in the position of his (the deceased’s) closest friend at the time of his death with whom she enjoyed physical relations. The relevant provisions do not purport to confer upon a deceased’s closest friend the rights and expectations of a domestic partner.”[22] The relationship there subsisted over twenty years, but the parties did not live together physically. Nevertheless, Justice Pagone determined that the relationship was a domestic relationship on the basis that the evidence of the applicant was supported by independent third parties who testified that they regarded the applicant and deceased as a couple.
[22]Ibid, [9].
Sigg concerned an application for recognition as the “partner of an intestate” for the purposes of distribution to her on intestacy under s 51 of the Act, not Part IV. “Partner” as defined in section s3 of the Act is the person’s spouse or “domestic partner”, and “domestic partner” is defined in terms which directly import sections of the Relationships Act. Thus for intestacy, the criteria established by the Relationships Act as to the determination of domestic relationships are directly relevant. There is no such direct importation of these criteria into Part IV, which does not require a relationship to be of any particular type, but I accept that they give assistance. I would add that Sigg was an unopposed application, and so caution needs to be taken in my view in relying on it as authority for the proposition that a relationship may be a domestic one notwithstanding that the parties did not live together for a period of up to twenty years.
The Relationships Act recognises different types of relationships for different purposes. For the purpose of court ordered financial support, which is the most analogous to an application under Part IV, s 39 of the Relationships Act recognises two forms of domestic relationship- a registered domestic relationship or a “relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender)”. In determining whether a domestic relationship, which is not a registered domestic relationship, exists s 39(2) of that Act requires all the circumstances of the relationship to be taken into account, including such of the matters specified in s 35(2) as are relevant. Section 35(2) sets out a list of factors as follows:
(a)the degree of mutual commitment to a shared life;
(b)the duration of the relationship;
(c)the nature and extent of common residence;
(d)whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f)the ownership, use and acquisition of property;
(g)the care and support of children;
(h)the reputation and public aspects of the relationship.
I will bear all these factors in mind, which are reflected in the Court of Appeal determination in Forsyth, in my determination as to the nature of the relationship.
Counsel have also referred me to a number of previous cases where the central issue has been whether or not the applicant for provision was in a domestic relationship with the deceased. The factors identified in those cases are essentially the same as those identified in Forsyth and the Relationships Act. With necessary caution to allow for different legislative schemes in different states, I have taken those cases into account, even if not specifically referred to in these reasons.
Is it significant the relationship was said to be a homosexual one?
The parties have suggested that this may be the first case in which a plaintiff seeks further provision as a same sex domestic partner. Certainly I was not referred to any previous similar case in Victoria. The same law applies, however, whether the relationship was heterosexual or homosexual. There is no restriction in s 91 of the Act to heterosexual relationships, no such restriction in the case of a “domestic relationship” in the Relationships Act and no distinction made on the basis of sexual orientation in either. The law is to be applied having regard to community standards, but no counsel suggested that this would today require a different approach in the case of a homosexual, as opposed to a heterosexual relationship. Indeed, the defendants assumed community acceptance of homosexual relationships by their submission that the plaintiff’s account of the relationship should not be accepted because neither he nor the deceased disclosed a homosexual relationship to their families.
However, I do not consider the fact that the asserted relationship was a homosexual one to be irrelevant, and, indeed, it may have considerable factual significance. First, a homosexual couple does not have the option of publicly confirming the relationship by marriage. In Sigg, Justice Pagone noted that caution needed to be taken in finding a domestic relationship where the heterosexual partners had had that option.
Next, while the legislation today makes no distinction between homosexual and heterosexual relationships, and there is more widespread community acceptance of homosexual relationships than in previous times, these are comparatively recent developments. As an illustration, the law was only amended to allow homosexual de facto partners as well as heterosexual to make application for adjustment of property interests, the very law which the defendants say gives guidance as to when a de facto relationship exists, in 2001.[23] In particular, if indeed the relationship was a sexual and romantic one, embarrassment on the part of the deceased and the plaintiff as to its homosexual nature or consciousness that the relationship may not be accepted by their families or the community may provide explanation for their failure to openly acknowledge the relationship, the actions they took to conceal its true nature, and, in the case of the deceased, his denials that it was a sexual relationship.[24] I discuss the nature of the relationship and this issue further below.
[23]Statute Law Amendment (Relationships) Act 2001, amending Part IX of the Property Law Act 1958, now enacted in the Relationships Act 2008.
[24]See, for example, the observation by counsel for the third and fourth defendants at transcript page 515 lines 16-21 that if the plaintiff had been female “There would have been a much more overt arrangement and there would have been a coming out by saying “look we are in a sexual relationship”.
BACKGROUND
The deceased’s marriage and children
The deceased was born on 26 March 1926 and so was aged 82 years at his death. He was previously married to Phyllis Joan Robins (called by the defendants’ counsel “Joan” in these proceedings) and there were four children of that marriage. The first defendant, Melanie, was born 2 September 1958 and accordingly is now aged 53 years. She is married with two children, April, born 20 October 1978 and Jamie, born 1 April 1988. The second defendant, Bronwen, was born 22 April 1960 and so is now aged 51 years. She is married but now separated and has two children, Alisha, born 6 February 1992 and Jordan, born 16 October 1998. The third defendant, Andrew, was born 17 November 1961 and so is now aged 50 years. He is profoundly mentally disabled. Prior to his death the deceased and Mrs Robins were the joint administrators of the estate of Andrew Robins. On 3 November 2008 the Victorian Civil and Administrative Tribunal appointed Mrs Robins as Andrew’s sole administrator. The fourth defendant, Jonathan, (also known as Jay) was born 16 September 1972 and so is now aged 39 years. He has two children, Leroy, born 24 July 2002 and Oden, born 16 May 2005.
I will call the defendants, the deceased’s children, by their first names in this judgment, without intending any disrespect. On occasion when the evidence describes the plaintiff by his first name it is usually as “Bhoy”, which was the deceased’s name for him.
The deceased’s wills and the estate
The deceased’s final will was dated 13 September 2005. The evidence discloses three earlier wills, dated 3 November 1989, 21 January 1994, and 9 June 1999. The deceased left legacies to the plaintiff in two of these four wills- the 1989 will (a legacy of $30,000) and the 1999 will (a legacy of $50,000). He made no provision for the plaintiff in the last will, or in the 1994 will. I discuss whether any conclusions can be drawn from this pattern when I discuss the statutory criteria in detail later in this judgment.
There is no dispute that the deceased’s net estate is $2,501,049. As at the trial, some of the estate had been called in, including the deceased’s former home at 9 Joynt St which was sold on 30 May 2009 for $651,000. The estate assets include the deceased’s shares in Glen Linton Pty Ltd, which was solely owned by him at his death. The shares are valued at $891,291 in the company accounts. A principal asset of that company is the property at 32 Joynt St, in which Melanie and her family have lived for many years. That property has not been sold and is valued at $800,000 in the company accounts.
The defendants’ closing submissions were to the effect that each of Melanie and Bronwen would receive under the will the sum of $587,762 and the trust for Jay and Andrew would have a capital of $1,175,524, subject in each case to further costs and expenses of the estate. These figures were not the subject of challenge by counsel for the plaintiff in his closing submissions, and so I will take the cautious approach of considering them to be correct, but I am unclear as to how they are arrived at. One quarter of the net estate of $2,501,049 is $625,262.25, not $587,762. It may be that some account has been taken of legal costs in the defendants’ analysis.
RELATIONSHIP BETWEEN THE PLAINTIFF AND THE DECEASED: EVIDENCE
The objective facts of much of the plaintiff’s evidence was not contested by the defendants. What was in contest was his evidence that his relationship with the deceased, their father, was a romantic and domestic one. As the plaintiff concedes that such a relationship was concealed from the deceased’s family, the defendants were not in a position to directly adduce evidence of what occurred between the plaintiff and deceased behind closed doors. They rely on other evidence and the inferences to be drawn from the objective facts as to the nature of the relationship between the plaintiff and the deceased. In what follows, I draw principally on the plaintiff’s evidence and make findings in accordance with that evidence unless otherwise indicated.
Early years 1978-1983
The plaintiff was born in the Philippines on 27 December 1960, the fourth of a family of nine children. He is now aged 51 years. His evidence is that he met the deceased in the Philippines in August 1978, when he was 17 years old. The deceased was 52 years old at this time. The plaintiff says that the deceased approached him in a museum, they became friendly and commenced a sexual relationship about a week later. The plaintiff says this was his first homosexual relationship, and he kept it secret from his family, with whom he lived, because he was embarrassed. He agreed in cross examination that homosexuality was disapproved of in Filipino culture and by his family. He says that the deceased visited him in the Philippines in each of the following 5 years for about three weeks at a time. During these visits, their sexual and emotional relationship continued and “we lived together as a couple in all senses of the word”.[25]
First visit to Australia 1983
[25]Affidavit sworn 6 October 2009, paragraph 62.
The plaintiff’s evidence is that he came to Australia for the first time in April 1983 on a tourist visa for three months. The deceased paid for the airfare. The plaintiff says that he and the deceased lived together at Joynt St, went camping with the deceased’s children, visited the deceased’s brother in country Victoria and the deceased’s mother in a nursing home. The plaintiff says that he and the deceased lived together in a “genuine domestic relationship” at this time, sharing a bed, a sexual relationship, meals, chores and activities. The deceased also visited him with Jay in the Philippines in late 1983 for Christmas.
The defendants in broad terms agree that these visits occurred, but dispute some of the details. For example, Bronwen says that she lived in New South Wales from 1980 to 1987, and so did not go camping with the plaintiff and her father in 1983, although she did go camping once with the plaintiff, her father and her brother Jay in 1988 or 1989. Jonathon agrees that his father took him to the Philippines when he was a child, where he met the plaintiff who introduced him to his family and some other children, but says this was in 1982. He also agrees that the three of them went on camping trips and outings, sometimes with Andrew and once with Bronwen.
The plaintiff moves to Australia 1985
The plaintiff came to Australia in December 1985 on a six months visitor’s visa, and immediately before its expiry in June 1986 applied in Australia for resident status on humanitarian grounds, being his domestic and sexual relationship with the deceased. It was put to him in cross examination that he had not ticked the box on the form relating to a de facto relationship with an Australian citizen, and he said this was because it was his understanding at the time that the only way he could apply for resident status on the basis of a homosexual relationship was on humanitarian grounds.[26] The deceased supported the plaintiff’s application and, indeed, internal immigration minutes exhibited to the plaintiff’s affidavit refer to attempts by the deceased to secure the entry of the plaintiff since 1983.[27] The plaintiff and the deceased were interviewed separately for this application, and the immigration documents exhibited to the plaintiff’s primary affidavit[28] record that they both confirmed the relationship, and described it as fulfilling and intended to last indefinitely. They both said that their sexual relationship was not known in the general community or gay community, although the deceased said that his family accepted the plaintiff’s presence in his home, and his former wife and possibly his elder daughter were aware of the true nature of the relationship.
[26]Transcript page 115, lines 11-23.
[27]JE-15 and JE-18 to the plaintiff’s affidavit sworn 6 October 2009.
[28]JE-17 and 18
The Department of Immigration officials accepted their account and the plaintiff was granted a temporary entry permit in January 1987, which was extended on a number of occasions to December 1989. In January 1990 his application for permanent residence was approved and in 1992 the plaintiff became an Australian citizen.
As is the case with most of the evidence about the relationship between the deceased and the plaintiff, the parties agree on the broad external events of this time, but disagree as to the nature of the personal relationship between the deceased and the plaintiff. The defendants say that the plaintiff was introduced to them in 1983 as a friend of their father’s, who had looked after their father when he was ill in the Philippines, and someone their father wanted to help to a better life in Australia. Bronwen deposes that her father had a history of community work, in particular helping migrants to assimilate in Australia, and so assistance to the plaintiff was not an isolated event.[29]
[29]Affidavit sworn 7 December 2009, paragraph 10.
Melanie and Mrs Robins were aware that the deceased was sponsoring the plaintiff’s application for permanent residence, as they were each asked by him to give a reference for the plaintiff. Each declined. Mrs Robins deposes that she was not contacted by the Immigration Department to confirm the statements made by the deceased that she was aware of the sexual relationship and is adamant that she was not so aware. Indeed, the children and Mrs Robins all saw the deceased regularly (in Bronwen’s case after 1987) and say they did not know of any sexual relationship between the deceased and the plaintiff. They viewed the plaintiff as a friend who, in Bronwen’s words, “became a lodger in his house in exchange for keeping the house and garden in order”[30], in Melanie’s words “a friend of our father’s who stayed with him from time to time”[31] without anything to indicate an emotional attachment between them, and in Jay’s words “they were just mates”.[32] Mrs Robins says that when the plaintiff commenced living with the deceased at Joynt St after he came to Australia permanently in 1985 to her observation he was there “as a boarder”, was paying board and expected to help with housekeeping and gardening as part of his board[33]. They all deny any knowledge of the deceased’s homosexual sexual orientation until many years later and stress the age difference between the deceased and the plaintiff.
[30]Ibid.
[31]Affidavit sworn 3 December 2009, paragraph 24.
[32]Affidavit sworn 18 December 2009, paragraph 13.
[33]Affidavit sworn 18 December 2009, prepared by Mr Thwaites, paragraph 16.
The plaintiff agrees that the sexual and domestic relationship he describes was not made explicit to the deceased’s family and that the deceased told his family that he, the plaintiff, was a friend. He agreed in cross-examination that he never told the deceased’s family that he, the plaintiff, was homosexual and the deceased did not tell them that he, the deceased, was homosexual and that he, the plaintiff, never told his own family about the homosexual nature of the relationship.[34] He said that the deceased did not “act gay”. The plaintiff says he thought the family may have realised the real nature of the relationship because whenever they came to 9 Joynt St he and the deceased were together, and on occasion when Mrs Robins, Melanie or Bronwen came to 9 Joynt St very early, the deceased would not be able to answer the door immediately because he and the plaintiff were together in bed.[35] The plaintiff said that the relationship was “open to a lot of people”, being people they socialised with including those in the New Wave Church.[36]
[34]Transcript page 109, lines 4-7 and page 116 line 16-page 117 line 4.
[35]Transcript page 120 line 23-page 121 line 20.
[36]Transcript page 109, lines 17-27.
He agreed in cross-examination that he had his own bedroom at Joynt St, and had had from his first visit in 1983[37] but says it was for show and that he and the deceased in fact shared the master bed. The plaintiff in his primary affidavit had referred to having a “faux” bedroom, but says this was “set up” when his cousin Andrew came to Melbourne to study, and lived at Joynt St. He says “I pretended (this) was my bedroom so that our relationship would not be obvious to Andrew”[38], but in fact his same sex relationship with the deceased continued. The plaintiff in his oral evidence referred to a cousin Nilvin who lived with he and the deceased at Joynt St between 1991 and 1995.[39] I infer this is the same person, although the affidavit does not indicate such a lengthy stay.
[37]Transcript page 111, lines 10-17.
[38]Affidavit sworn 6 October 2009, paragraph 95.
[39]Transcript page 295, lines 17-23.
The plaintiff gave evidence that a cousin Andrew, and then his mother Venus visited Melbourne in 1995. It is unclear if this is the same cousin, who had previously been living at Joynt St. The plaintiff rented a property for them in Fairfield, and then at 4/13 Ellesmere Parade Rosanna. The occupancy of Ellesmere Parade was between July 1995 and June 1996. The defendants sought to suggest that the plaintiff lived there too, and this is indicated an end to the plaintiff’s relationship with the deceased prior to April 1996. I accept the plaintiff’s evidence that he slept there on some nights during the week, until he went to Mount Buffalo in April, but Leon stayed with him on those occasions. A friend of his occupied the flat after his aunt returned to the Philippines.
The plaintiff says that he transferred everything he had owned in the Philippines to Joynt St in 1986. In cross-examination he agreed this was clothes, souvenirs and personal items, not furniture or electrical items. He says that he and the deceased “went out, and did things, as a couple. We treated each other’s household property as mutual.”[40] Under cross‑examination he gave evidence that he was financially dependent on the deceased from December 1985 until he received a temporary entry permit which enabled him to work. In cross examination this was said to be a two year period to 1988, but Exhibit JE 19 to his affidavit of 6 October 2009 establishes that the permit was issued in January 1987. During this period the plaintiff said in cross-examination that he did the cooking, cleaning, gardening and driving for Joynt St and agreed that he received free accommodation but denied that the deceased treated him like a servant, and said he undertook those tasks as the deceased’s partner, as in a husband and wife relationship.[41]
[40]Ibid, paragraphs 91 and 92.
[41]Transcript page 119, lines 12-20 and page 143 lines 8-18.
The plaintiff commenced full time work after January 1987 at the Regent Hotel as a room attendant and later as housekeeper/supervisor. He moved to the Adelphi Hotel as a housekeeper in December 1992 to April 1996. He continued living with the deceased at Joynt St.
He says that when working at living at Joynt St during this period he contributed all the money he earned to joint expenses such as maintaining the home, paying the bills, buying groceries.[42] There is not a great deal of evidence in chief from the plaintiff as to the detail of the life he shared with the deceased at Joynt St in terms of their daily life and activities, to flesh out his assertions as to the nature of the relationship, but nor was he asked about this in cross examination. The evidence establishes that other than the initial period before he received a work permit, the plaintiff was not financially dependent on the deceased and they did not share funds. The defendants have established that there were a number of loans made by the deceased to the plaintiff, which he appeared initially not to recall, but I accept the plaintiff’s evidence that all these loans were repaid. The defendants have also put into evidence[43] an undated form of will apparently executed by the plaintiff by which he appoints the deceased his executor and which provides for the balance of his estate after repayment of a loan from Glen Linton Pty Ltd to purchase a car to be given to his brother. The plaintiff’s evidence is that the deceased typed up this form of will early on in their relationship[44], and I infer that it was likely drawn up and executed at the time of a loan from the deceased (or his company Glen Linton Pty Ltd) to the plaintiff to enable him to buy a car. The plaintiff’s evidence is that the loan was repaid and I accept that evidence.
Working in Australia away from Melbourne 1996-2000
[42]Affidavit sworn 6 October 2009, paragraph 96.
[43]Exhibit 4.
[44]Transcript page 278, line 23.
In April 1996 the plaintiff applied for and obtained a position at the Mount Buffalo Chalet, about two hours drive from Melbourne, which position he retained until September 1999. He said in cross examination, although not in his affidavit, that had he lost his job at the Adelphi and applied for another hotel job in Melbourne but could not obtain one. At that time the plaintiff was 35 years old and the deceased 70, and they had been living together for over 10 years. It was put to the plaintiff in cross examination that he wanted to leave the deceased and work away because “the passion had faded”, but the plaintiff denied this.[45] He agreed that the deceased could have supported him, had he stayed in Melbourne, but said that “for me it’s not worth living if I don’t work”.[46]
[45]Transcript page 146 lines 6-7
[46]Transcript page 148 lines 14-15. See also transcript page 162, lines 30-31.
The position at the Mount Buffalo Chalet was also a more senior role and the plaintiff was better paid (his salary rose from $29,000 p.a. to $32,000 p.a.) and he agreed these matters were significant to him. The plaintiff was also frank in his evidence, in re-examination, that the deceased asked him at this time if he would undertake some retraining and change careers with a view to staying in Melbourne. The plaintiff did not wish to do so as he was enjoying earning.[47]
[47]Transcript page 288, lines 1-6.
The plaintiff asserts that he would return to Joynt St “every two weeks or so” for the weekend and that the deceased visited him at Mount Buffalo or came to collect him on a number of occasions during the three years. It was put to him that in fact he did not visit Melbourne as regularly as this, particularly during the ski season when weekends are busy, but he reiterated his evidence that he did. His evidence as to returns to Melbourne is corroborated in part by Mr MacManus who, by chance as he did not then know the plaintiff although he was already friendly with the deceased, picked him up hitchhiking down from Mount Buffalo. I accept the plaintiff’s evidence that he returned regularly to Joynt St while working at Mount Buffalo.
In September 1999 the plaintiff successfully applied for an executive housekeeper position at the Carlton Hotel in Darwin. His salary rose from $32,000 p.a. at Mount Buffalo to $45,000 p.a. at the Carlton Hotel, a considerable increase. He said, however, that he “couldn’t deal with being so far away from Leon”[48] and it was expensive to fly back and forth, so in 2000 applied for and obtained a job at the Rydges Hotel in Melbourne at the same salary.
[48]Affidavit sworn 6 October 2009, paragraph 103.
Melbourne 2000-2002
The plaintiff worked at Rydges for eight months, and then took up a contract job at the Mercure Hotel. When that contract ended in 2002 he says he was unable to find a another job “anywhere in Melbourne or in Australia”, even when he started applying for more lowly positions to stay in Melbourne.[49] He was unemployed at this time for a period of three to four months and financially dependent on the deceased.[50] He was also unemployed, on his evidence for about eight months, in 2004, but otherwise was not financially dependent on the deceased from 1987 when he was able to work.[51] The plaintiff and the deceased had a shared bank account from 1986 when the plaintiff was not working into which the deceased had deposited some funds, and into which the plaintiff deposited some of his salary once he commenced work, but the plaintiff says that from 1996 he and the deceased had separate accounts. The plaintiff agreed that he was never a signatory to any of the deceased’s own accounts.[52]
[49]Transcript page 153, lines 2-10.
[50]Transcript page 162 lines 22-23
[51]Transcript page 152 lines 11-12.
[52]Transcript page 160 lines 2-9.
Overseas work from 2002
The plaintiff’s evidence is that after the Mercure contract ended and he was unable to get a job in Melbourne he applied for and obtained a job in the Maldives. He only stayed three to four months because of the expense of returning to Melbourne, which he did twice during that period. In early 2003 he returned to Melbourne and shortly thereafter applied for a position with a cruise ship line, Carnival Lines, based in Miami, Florida. In 2004 his evidence is that at the deceased’s request he resigned and returned to Melbourne, and was out of work for eight months. He said because “it feels very bad not to have work” he started looking for a job in Melbourne, but was only able to get a job on the cruise ships.[53] Thereafter he worked in contract positions as a housekeeper for Disney Cruise Lines, until the deceased’s death in September 2008. When a contract ended, he returned to Melbourne and Joynt St for a period, and also spent time with his family in the Philippines.
[53]Transcript page 164, lines 13-20.
The plaintiff’s case is that he was away from Melbourne only because he could only obtain work overseas, and it was important to him to work, but his absence did not signify an end to his committed relationship with the deceased-they continued to be domestic partners. For example, he says that when he was in Melbourne he would pay sometimes when he and Leon went out, or for groceries, and sometimes Leon would: “We did not keep count and we did not keep tabs like friends would…We did not ‘split’ expenses as mere housemates would”.[54] He says everything he owned he left at Joynt St while working overseas.[55] He did acknowledge in re-examination that Leon had asked him to stay “at home” (the plaintiff always referred to Joynt St as “home” in his evidence). Consistently with this case, counsel for the plaintiff in his closing submissions emphasises the continuing emotional connection between the plaintiff and the deceased from 1996, rather than the actual periods of time the plaintiff physically lived with the deceased from that time.
[54]Affidavit sworn 6 October 2009, paragraph 110.
[55]Ibid, paragraph 119.
For the defendant’s case, the plaintiff was cross examined at length in relation to his returns to Australia from working on cruise ships. His evidence early in his cross examination was that he would return to Joynt St every three or four months, and stay three weeks at Joynt St. He would then visit his family in the Philippines, before returning to Joynt St to fly back to the United States on the return flight provided by his employer. He said “I divide my time equally between Leon and my family” (emphasis added). [56] Later in his cross examination, which was very extensive and continued over four days, he said he spent “most of my vacation time with Leon” and that after 90 days of work, he spent the first 30 days with Leon and then “some time” with his family before returning to Melbourne to fly back to work (emphasis added).[57] At most then, given the length of his employment contracts, and his pattern of spending time with his family in the Philippines as well, the plaintiff was able to return to Melbourne two or three times only each year from November 2004, during which times he generally stayed between three and four weeks at Joynt St. In other words, on this evidence of the plaintiff his pattern was to physically live with the deceased at Joynt St between two and three months of the year only in the years before the deceased’s death.
[56]Transcript page 172, lines 16-17.
[57]Transcript page 235, lines 6-10.
In closing submissions, counsel for the first and second defendants (whose submissions counsel for the third and fourth defendants adopted) conceded that when the plaintiff returned to Joynt St in between employment contracts he stayed for up to a month at a time with Leon, but stressed that he then proceeded to stay with his family for an equivalent time. The defendants’ case is that at least from 1996, when the plaintiff took up work at Mount Buffalo and ceased living full time in the deceased’s home, any de facto relationship between them was at an end.
The plaintiff did not in chief adduce detailed evidence of the number and timing of occasions on which he returned to Australia and Joynt St after 2003. The defendants did not seek in cross-examination to test or support the plaintiff’s evidence as to his general pattern by detailed comparison with what objective evidence exists. The plaintiff in re-examination only gave detailed evidence as to his returns in 2007 and 2008, and the defendants took no objection nor did they seek to further cross-examine him.
Having regard to Forsyth and the factors to be considered by the Relationships Act in determining if persons are in a domestic relationship, the amount of time the plaintiff spent physically living with Leon is clearly relevant to, though not determinative of, the nature of the relationship. One difficulty is that there is no single piece of objective evidence, such as passport stamps showing entries and exits from Australia, to establish when the plaintiff returned. The plaintiff’s current and earlier passports are in evidence but it is apparent (and the defendants did not otherwise contend in their closing submissions) that the passports do not record every entry into Australia. There is, for example, no entry recording the plaintiff’s return to Australia after the deceased’s death, although it is conceded he did return. Indeed, in the period 2002-2008 I could locate only two records of arrival in Australia, being on 22 October 2003 and on 11 December 2004.
The passport does, however, contain a number of arrival stamps into the Maldives, the Philippines and the United States, particularly from 2005, and so a pattern of travel against which the plaintiff’s oral evidence can be tested. Counsel for the plaintiff used the passport entries as the foundation for his questions to the plaintiff in re-examination about returns to Australia in 2007 and 2008. The dates and contents of emails sent by the deceased to the plaintiff and others put in evidence by both parties could also provide some corroborative evidence. The plaintiff confirmed in re-examination that the deceased sent him emails only when he, the plaintiff, was overseas and the deceased was at Joynt St. The parties did not themselves use the emails in this way, to corroborate the plaintiff’s evidence as to his returns to Australia. They relied on the content of the emails principally to establish the nature of the relationship between the plaintiff and the deceased. Nevertheless, the emails are in evidence, and given that the plaintiff gave evidence in re-examination as to the significance of email dates in general, and specific evidence based on passport entries for 2007 and 2008, I have considered both the emails and the passport entries in relation to inferences that could be drawn as to the plaintiff’s periods in Australia.
There are some inconsistencies between what is suggested by the dates of the emails with the plaintiff’s evidence, in particular in relation to early 2007, but these are not major. In broad terms, I find that the emails and passport entries corroborate the plaintiff’s evidence, although the pattern of travel suggested by the passport entries is equal time in the Philippines as in Australia in between work contracts, rather than less. There were some variations from year to year as set out below. A schedule of the passport entries from 2002 is Annexure A to these reasons, and a schedule of emails from the deceased to the plaintiff is Annexure B.
2003
The plaintiff in his primary affidavit deposes that his first job with Carnival Lines was for nine months, after which he returned to Joynt St in September 2003. His passport records an arrival into Australia on 22 October 2003, apparently after a period of just under three weeks in the Philippines, which he entered on 2 October 2003. He took a two month vacation and “lived at home at 9 Joynt St”, continuing to live with the deceased in a “domestic relationship and do all the things that couples do”. He says that each of them would pay for things, and they did not keep tabs.[58] He then accepted a job, for which he was “head hunted” with a cruise line operating out of Perth, but stayed only about three weeks.[59] He does not give specific evidence of the date, but it would appear to be the end of 2003 by this time. His passport records an entry into the United States of America on 14 November 2003 which is consistent with this evidence.
[58]Affidavit sworn 6 October 2009, paragraph 123.
[59]Transcript page 169 lines 26-31
2004
Exhibited to the plaintiff’s primary affidavit is a Western Union record that he had sent money to the deceased, apparently from Miami in early January 2004.[60] The plaintiff says he returned to Melbourne in April 2004, because he had heard the deceased had fallen out of a tree while pruning.[61] The defendants say this accident occurred much earlier.[62] The plaintiff’s evidence is that he then, at the deceased’s request, remained in Melbourne unemployed for eight months, but took a job with Disney Cruises operating out of Florida in November 2004 as “money was very tight”.[63] He said in his affidavit and affirmed in cross examination that the deceased did not want him to go.[64]
[60]JE-31, which bears the date “01/02/04”, which in US dating convention would be the second of January.
[61]Affidavit sworn 6 October 2009, paragraph 125.
[62]Evidence of Mrs Robins, transcript page 426 line 7.
[63]Affidavit sworn 6 October 2009, paragraph 126.
[64]Transcript page 171, lines 20-26.
The sole passport entry for 2004 is arrival in Australia on 11 December 2004, which is not directly accounted for in the plaintiff’s oral evidence. The passport records entry to the United States of America on 13 December 2004, which is consistent with his evidence that he accepted another overseas contract in November.
The defendants have put into evidence multiple emails between the deceased and a Mr Amper. The emails were all sent in 2004. The first of the emails in evidence is dated 24 February 2004, and the last 4 October 2004.[65] They record that the deceased and Mr Amper first met through the internet and later met in person in the Philippines.[66] The emails suggest a romantic relationship, and record that the deceased gave money to Mr Amper on a number of occasions, and facilitated his entry to Australia on a student visa to study nursing at the Australian Catholic University in Melbourne.
[65]MM-11 to the affidavit of Melanie Jane McDonald sworn 3 December 2009.
[66]Email from the deceased to Mr Amper dated 22 March 2004, part of MM-11 ibid.
The emails refer on occasion to a “friend” who must, from the description, be the plaintiff. The plaintiff agreed the references were to him. Some of the emails were evidently sent while the plaintiff was living at Joynt St, in particular emails from the deceased to Mr Amper of 14, 20 and 25 June 2004. The email of 14 June corroborates the plaintiff’s account that he spent time looking for work in 2004 in the words “I still have the friend staying here with me. So far he has not found a job…He’s trying to get a job on a cruise ship.” There is no earlier reference in the emails to suggest how long the plaintiff had been residing there on that occasion. The email of 20 June records the deceased’s annoyance that an email to him from Mr Amper had been opened, and the email of 25 June chides Mr Amper for asking “naughty” (i.e. sexually explicit) questions as “I have little privacy now”. The deceased’s email of 10 July 2004 to Mr Amper states “My friend has gone”. The plaintiff may have then returned to Joynt St for medical reasons, because the deceased’s email to Mr Amper of 1 August 2004 states that “the guy who I was telling you about who came here years ago” rang to say he was returning briefly for medical treatment for an eye, and then will return to his job in Perth.
The email of 16 September 2004 is one that the defendants specifically took me to, for the purpose of relying on the account the deceased gave Mr Amper of his relationship with the plaintiff. In this email the deceased said that the plaintiff was not gay, and they did not sleep together. I consider caution should be exercised in relying on what the deceased said to a young man he was wooing about his relationship with the deceased. In this email, the deceased tells Mr Amper that his friend may possibly still be at Joynt St when Mr Amper arrives as his work had fallen through. The last emails in evidence refer to Mr Amper arriving to study in Melbourne in October 2004.[67] The plaintiff’s evidence is that he was still living at Joynt St when Mr Amper arrived. He returned from Sydney where he had gone for a job interview on the day of Mr Amper arrived and “that night Leon told me that he has a student living in the first bedroom.” [68]
[67]Email dated 4 October 2004 from the deceased to Mr Amper.
[68]Transcript page 299, lines 4-7.
No questions were put to the plaintiff in cross examination about his movements on the basis of these emails. In general terms the emails confirm that for a period of some months in the middle part of 2004 (or two periods broken by a short absence) up until at least October the plaintiff was living at Joynt St unemployed and looking for work, and I so find.
2005-2006
There is no specific oral evidence from the plaintiff about his returns to Australia in 2005 or 2006. His passport shows two entries a year into the Philippines for each of 2005, 2006 and 2007, for three to four weeks on each occasion, with a brief interval after the exits in 2005 and 2006 prior to arrival in the United States. As stated above, there are no entry or exit stamps for Australia, but the pattern shown in relation to the Philippines and the Unites States is consistent with the plaintiff’s evidence as to the pattern of travel.[69] The dates for the Philippines do suggest, however, that on most occasions in those years he spent a month at a time there, which, if he spent his first 30 days in Australia, suggests an equal division of time, not more time at Joynt St.
[69]Affidavit sworn 6 October 2009, paragraph 127.
The plaintiff has also put in evidence[70] a large number of emails from the deceased, in this case to him and for a later period. The first in evidence is dated 23 December 2005 and the last 25 September 2008. There are over 40 in all. There are no emails from the plaintiff to the deceased in evidence, although a number of the emails from the deceased refer to emails from the plaintiff. The plaintiff said he had given all the emails he had to his solicitors, including his emails to the deceased, and so it is unclear why none of these emails, from the plaintiff to the deceased, are in evidence. In fairness, email may not have been the plaintiff’s main form of communication with the deceased. The plaintiff says that he would ring the deceased, rather than email, when he was away, and Mr Eaks, Ms Inglis and Mr MacManus testify that the deceased told them the plaintiff rang him every day. There is also no evidence as to whether or not the emails in evidence are the whole of those from the deceased to the plaintiff, or a selection. Bearing in mind those limitations, however, the emails do assist in determining to some degree when the plaintiff was overseas. I will also consider their contents later in this judgment in relation to the nature of the relationship.
[70]JE-32 to JE-36 to his first affidavit sworn 6 October 2009; JE-1 and JE-3 to his affidavit of 13 April 2010 in reply to the first defendant, and Exhibit P.
The first three, dated 23 December 2005, 24 February 2006 and 8 March 2006, all state or imply the plaintiff is at sea. The next email is dated 9 June and makes reference to “when you were here”. This would be consistent with a visit in the first half of the year and a visit to the Philippines either before or after, as evidenced by passport stamps showing arrival in the Philippines on 1 April 2006, departure on 5 May 2006 and arrival in the United States on 12 May 2006.
The deceased’s 80th birthday was 26 March 2006. The first entry into the Philippines for 2006 is 1 April 2006, and so, if the plaintiff travelled there from Joynt St, he would have been in Melbourne for the deceased’s 80th birthday on 26 March 2006. He says he was not,[71] and the passport entry was not put to him, so there may be another explanation.
[71]Transcript page 226.
The next passport entries for the Philippines and the United States for 2006 are entry to the Philippines on 30 September 2006, departure from the Philippines on 31 October 2006 and entry to the United States on 10 November 2006. This is consistent with a second visit to Australia in September of that year and the plaintiff’s evidence that in between contracts he would first come to Melbourne, then go to the Philippines and return to Melbourne before flying back to join the cruise ship. Such a visit is also implied by the final four emails for that year in evidence, which are dated 3 October 2006 (which asks if the plaintiff had tidied something away), 6 October (which records that the deceased has found it), 23 and 27 December 2006. The contents of the email of 6 October 2006[72] in particular are consistent with the plaintiff having recently visited, and now being in the Philippines visiting his own family. The plaintiff in re-examination confirmed he was in the Philippines at this time.[73] The email of 27 December expresses belated birthday wishes and thanks for a telephone call the previous day. I find that on the probabilities the plaintiff stayed at Joynt St twice in 2006, the first at some point between 8 March and 1 April, and the second in September, with a brief return to Melbourne before leaving for his next contract in November 2006.
[72]Part of Exhibit P
[73]Transcript page 292, line 13.
2007
In response to a query from me, in re-examination the plaintiff was questioned in detail about what inferences could be drawn from the emails sent to him by the deceased and the dates of his returns to Joynt St in 2007 and 2008. He confirmed that the deceased sent him emails only when he, the plaintiff, was overseas and the deceased was at home. On analysis of his evidence in cross-examination, in re-examination and the inferences to be drawn from his passport and the dates of various emails I find the following in relation to 2007 and 2008.
The plaintiff arrived in Los Angeles on 10 November 2006 which he said in re-examination was for a ninety day contract, i.e. to mid February 2007. He said in re-examination he then returned to Melbourne at Joynt St and remained for longer than usual between mid February and his entry to the Philippines on 21 May because he had a shoulder injury.[74] This is at odds, however, with what might be inferred from the dates of the emails, bearing in mind his evidence that the deceased only emailed him when he was overseas. Emails in January say that the deceased is missing the plaintiff, ask the plaintiff when he is returning, and state that the deceased is expecting him in February.[75] In March and April the deceased asks the plaintiff when he will be returning “home”, in increasingly anxious terms.[76] The email of 2 April, for example, reads “Bhoy, where the hell are you?? I’m getting worried about you. You were supposed to be home by now. Please contact me Love LWG”. These emails suggest that the plaintiff did not return to Joynt St until after 2 April 2007. The plaintiff said in cross-examination that he thought he was in Australia in April 2007, because a friend from Mauritius visited in April 2007.[77] The next emails in evidence are five months later in September 2007, then a gap between 30 September and 14 December 2007. The passport records entry into the Philippines on 21 May 2007 and into the United States on 6 June 2007.
[74]Transcript page 322, lines 15-19.
[75]Emails of 15 January, 17 January and 26 January 2007 from the deceased to the plaintiff, part of JE-3 to the plaintiff’s affidavit sworn 13 April 2010.
[76]Emails of 14 March, 26 March, and 2 April 2007, ibid.
[77]Transcript page 175, lines 23-25.
I consider that the documentary record of the email dates is more likely to be correct than the plaintiff’s recollection in re-examination and find that the plaintiff returned for the first occasion in 2007 after 2 April 2007, and travelled to the Philippines on 21 May 2007.
The plaintiff said in re-examination that he returned to Joynt St for the second occasion that year, again after a ninety day contract, in October 2007. This is consistent with the gap in emails after 30 September. Also consistent with a second visit (given his evidence as to his usual pattern of travel) are his passport entries which show a second visit to the Philippines for that year between 27 November 2007 and 28 December 2007, and entry to the United States on 4 January 2008. On his evidence as to his usual pattern of travel, this is consistent with a brief visit to Australia in between 28 December and 4 January, in accordance with his evidence in re-examination.
On the basis of all this evidence, I find that the plaintiff returned to Australia twice in 2007, at some time in the period 2 April to 21 May 2007, and at some time in the period 1 October and 27 November 2007. I am unable on the evidence to conclude if either visit was for longer than the usual period the plaintiff swears to, i.e. three to four weeks.
2008
On the plaintiff’s evidence, he visited Joynt St three times in 2008. His evidence is that he was in Melbourne in March 2008, when he and the deceased visited the Amber Lounge with a view to purchase as a business for them both[78]. This is consistent with the passport entry showing the first entry to the Philippines for that year on 31 March 2008. He said in re-examination that his contract on this occasion was for two and a half months only, from 4 January 2008.[79] I conclude that he was at Joynt St for about two weeks between mid March 2008 and 31 March 2008.
[78]Transcript page 261.
[79]Transcript page 324, lines 23-27.
He also testified in cross-examination that he returned to Joynt St in April or May and then between 2 and 24 September.[80] In re-examination, when prompted by the passport entries, he said that he spent about a month in the Philippines (from 31 March) and then returned to Joynt St for another month, before returning to the Philippines.[81] The passport entries for the Philippines and the United States for that year show a second entry to the Philippines on 27 May 2008 until 16 June 2008 and thence entry to the United States on 20 June 2008, and a third entry to the Philippines on 24 September, departure on 29 September 2008 but no entry to the United States until 14 November 2008. This is consistent with the plaintiff returning to Australia after learning of the deceased’s death and only later returning to work in the United States, after re‑securing his employment.
[80]Transcript page 175, line 27 to page 176 line 12. In later evidence at page 189 he suggested the visit prior to September was in June or July, but the passport entries suggest May.
[81]Transcript page 325, lines 24-26.
I discuss below the significance of the deceased’s conduct in making promises to the plaintiff that he would buy a business for him to manage, if the plaintiff returned home. Counsel for the plaintiff has also invited consideration of the deceased’s conduct in having a sexual relationship with another man, or men, as a factor that may add to a moral duty to make provision for the plaintiff. In my view this conduct is relevant principally to the determination of the nature of the relationship between the deceased and the plaintiff, and would not add to any duty to provide if that relationship itself did not create a duty.
Section 91(4)(p): any other matter the Court considers relevant
The first matter I consider under this heading is the pattern of the deceased’s last and earlier wills. The defendants rely on the fact that, notwithstanding his professed desire to make provision for the plaintiff, the deceased did not change his will. This is not a case of a very old will, made before the commencement of the relationship on which the applicant relies (as, for example, in Forsyth). The deceased was clearly assiduous in updating what provision should be made for others by his will, as he drew up four wills in the space of 19 years, at about the same intervals of about five years between each will.
All of the four wills appoint his two daughters as executors and trustees and the primary provision in all four is for his four children. The wills differ as to the respective amounts for his children, and as to whether there are legacies to others. In his 1989 and 1999 wills, the deceased devised a legacy to the plaintiff (in his 1999 will described as “my friend of some twenty years”), and also in his 1999 will he devised $20,000 to his former wife “to make her life easier until such time as her mother dies”. The gift was conditional on Mrs Robins’ mother not predeceasing the deceased, as he stated that he believed that Mrs Robins’ mother would amply provide for Mrs Robins. The 2005 will, the subject of the grant of probate, removed all legacies and made equal provision by share for the children, although Jay and Andrew’s shares were to be held in trust.
The last will was made after the plaintiff had worked overseas for some years, and, in particular, after he took up another overseas contract in December 2004 and thereafter returned for short periods only. I do not consider, however, that I can safely draw any conclusion as to the deceased’s intentions in removing the legacy to him. No reason is stated in the will, and a legacy was also removed in the 1994 will, then reinstated, and in a higher amount, in the 1999 will. There is no obvious change in the nature of their relationship, or any other fact, disclosed in the evidence to explain these changes. In particular, in 1994 the plaintiff was still living full time with the deceased, and in June 1999 when the 1999 will was drawn he was working away from Joynt St, and had been since 1996. Counsel for the third and fourth defendants sought to link the plaintiff’s omission from the 1994 will with the lease he took out for Ellesmere Parade in 1995. I do not think any such link is established. I accept the plaintiff’s evidence that the lease was for his aunt and cousin, and that while he stayed there on occasion, he did so with the deceased.
I consider the clearer and more persuasive indications of the deceased’s intentions as to financial provision for the plaintiff are to be found in what he told him, and what he did in investigating various businesses. I repeat my detailed conclusions in relation to the business proposals earlier in this judgment. This is not just a case of a general promise to the plaintiff to make financial provision, not acted upon by the testator or corroborated. The promises were specific, repeated on a number of occasions over at least the last year of the deceased’s life, made not just to the plaintiff but also corroborated by what the deceased told others (his accountant, Mr MacManus), and the deceased took substantial steps to implement them. Mr Christodoulou’s evidence corroborates the plaintiff’s that the deceased took real steps to investigate the various bars or businesses in question, both by investing his time and paying others for expert assistance.
Counsel for the plaintiff has drawn my attention to the commentary in the service which discusses a number of New South Wales authorities as to the relevance of promises made and expectations raised by testators. In Vukic v Grbin[148] Brereton J. did not limit the relevance of such promises to cases where a claimant has relied on them to his detriment. He stated:
Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant…This is particularly so where a claimant has relied to his or her detriment on any such promise or expectation. (emphasis added)
[148][2006] NSWSC 41, at [38]
I do not consider it necessary for the plaintiff to show that he suffered any financial detriment by acting on the promises made to him and returning. Further, if part of the deceased’s intention in making the promises to the plaintiff that he did about a business was to manipulate him into returning home, then in my view this does not diminish the significance in the plaintiff’s case of these promises, and in fact adds to it. First, it shows that the deceased trusted the plaintiff and wanted to be looked after by him in his declining years, rather than a family member. Secondly, it would be unconscionable for a testator to manipulate a loved one in this way, without making financial provision for him or her. If the deceased in truth did not plan to carry out his promises in my view this would add to any moral obligation to make provision for the plaintiff after his death.
The deceased told the plaintiff, as evidenced by his second email to him on 29 September 2007 (quoted earlier in this judgment) that he wanted to set him up “in a suitable situation which will not depend on my family’s good will.” Mr Christodoulou’s evidence is that the deceased in his life totally controlled his own finances, and so financial provision for the plaintiff was not dependent on the family’s good will. One possible explanation for the absence of financial provision in his will for the plaintiff is that the deceased may have considered that this would not be the situation on his death. While of course he could have made specific provision by legacy for the plaintiff in his will, his intention throughout all his four wills was that his daughters be his executors and trustees, and so responsible for the calling in and administration of his estate.
This is a possibility, rather than a reason established on the evidence and I make no finding to this effect. I do consider, however, that the deceased’s intention to make financial provision for the plaintiff independent of his family is an additional reason for drawing no conclusion adverse to the plaintiff from his omission in the 2005 will.
I have also taken into account the undated form of will apparently executed by the plaintiff, which does not make any gift to the deceased. I do not consider this establishes any detriment to the plaintiff’s case. His evidence is that the deceased drew up this document for him, and I infer that the deceased’s intention was to protect the interest of his company in repayment of the loan to the plaintiff to purchase a car.
CONCLUSION: JURISDICTION
I find that the deceased had a responsibility to make provision for the plaintiff by his will having regard to the following aspects of their relationship:
· Its duration, from 1978 (when they first met and commenced a sexual relationship, strengthened by visits to the Philippines by the deceased and to Australia by the plaintiff in 1983) to the deceased’s death in 2008;
· That they were domestic partners for more than ten years of that time, between 1985 and 1996, and, possibly, until December 2004;
· That a relationship of affection, sexual intimacy, care and emotional support continued between them after December 2004 through email and telephone contact while the plaintiff was overseas and in person on his regular returns to Australia;
· Their mutual intention just prior to the deceased’s death to resume a relationship as domestic partners;
· The disparity in ages between them, and, in particular, that the plaintiff was so young when they first met;
· The deceased’s intention to buy a business in which the plaintiff could work and over time acquire equity, as expressed by words and actions to both the plaintiff and others;
· That the relationship between them was, on the evidence, the most significant personal relationship of their lives, other than with their respective families.
In addition I have had particular regard to the fact that the estate is sufficiently large to make appropriate provision for the plaintiff without depleting the intended provision for the deceased’s children unduly, taking into account their respective financial and life situations.
The will made no provision for the plaintiff. He has a modest income and modest assets only, and although he may well be able to work until the usual retirement age he does not have adequate superannuation or other funds to support him at that time, and no permanent home in Australia. I consider that the will did not make adequate provision for him.
Accordingly, I find that the Court has jurisdiction to make an award of provision.
CONCLUSION: AMOUNT OF PROVISION
In determining the amount of provision to be ordered, the Court is required to have regard to the same statutory criteria as in relation to the determination of jurisdiction. In evaluating those criteria, the test is not what the testator would have done, but what a hypothetical just and wise testator should have done, having regard to current community standards. Further, in determining the amount to be awarded the Court is required to be conservative and cautious, so as not to trammel unnecessarily on the freedom of testation.[149]
[149]McKenzie v Topp, per Nettle J. at [63]
The plaintiff sought $900,000 on the basis that this would be sufficient to purchase a home, capital to acquire an income stream and a nest egg. This submission was on the basis that the Court found that the deceased and the plaintiff were domestic partners at the deceased’s death. I have not so found. The fallback case of the plaintiff, should I not find that he was the domestic partner of the deceased, did not identify any particular sum as appropriate, although counsel appeared to concede it would be less, and no measure was suggested by the plaintiff for determining the appropriate amount. There is also no evidence adduced by the plaintiff as to any particular needs or wishes, for example, as to where he wishes to live in Australia and what the cost of housing there is, or any particular proposal to secure an income or better his retirement prospects.
The defendants propose that, in the event that the Court considers an award should be made, it be in the order of the previous legacies i.e. about $50,000. Both the plaintiff and the defendants devoted most of their attention in their respective cases to the question of jurisdiction, and the nature of the relationship between the plaintiff and the deceased, rather than to the amount of any award, if jurisdiction was established.
Having regard to the statutory criteria, I consider that the defendants’ proposal is too low. It pays insufficient regard to the nature of the relationship between the deceased and the plaintiff as found by me. It also focuses too greatly, in my view, on what the deceased himself did in the past, although this is a relevant factor to be considered.
I have considered three other possible approaches to the determination of the appropriate amount, having regard to the statutory criteria, including other relevant matters. The first is to give greatest weight to the expressed intention of the plaintiff and deceased to resume their cohabitation as domestic partners, and regard the periods during which they did not live together as a hiatus. This would suggest that an appropriate amount should be awarded to allow the plaintiff to secure housing at least. There is no evidence as to what that amount might be. The home at 9 Joynt St sold in 2009 for $651,000 but there is no evidence or submissions as to whether or not this type of accommodation would be an appropriate measure. I do not consider in any event that this is the appropriate way to proceed, because the plaintiff and deceased had resumed cohabitation at earlier times, after the plaintiff first worked away, in 2000-2002 and in 2004, and the plaintiff then accepted overseas work again. I think in these circumstances the resumption of cohabitation could only be conclusively determined in retrospect, and so provision to the extent of the full cost of a home may not be appropriate.
The second approach I have considered is equal division as between all five people to whom the deceased owed a moral responsibility to make provision, given their relationships with him, their financial positions and promises made to them. This is his four children and the plaintiff. This approach would result in approximately $500,000 to each of the five before legal costs, and less after. Looking at the matter this way may have been implied in the closing submissions of counsel for the plaintiff. This approach would, however, equate the relationships in a way that I think current community attitudes would not consider appropriate, given that the relationship with the plaintiff was concealed, to the plaintiff’s knowledge, from both their families and never acknowledged explicitly even to friends. I accept that the community, and indeed the Act itself in the case of an intestacy, considers that partners, whether homosexual or heterosexual, rank on death ahead of adult children, but the plaintiff was not the deceased’s partner at his death, and to give him even equal standing would be to rank as equal to the relationship between parent and child a relationship that neither party felt able in life to publicly acknowledge.
The third approach I have considered would be to give particular emphasis to the promises made by the deceased to the plaintiff, about the purchase of a business to afford him financial security. The plaintiff’s evidence about the last three business proposals, the De Biers bar, the Tattslotto outlet, and the brothel, is that the figures identified by the deceased were respectively $370,000, $250,000-$300,000 and $370,000-$400,000. The figure for the De Biers bar is corroborated by one of the deceased’s emails, and the plaintiff’s evidence is that they subsequently agreed on the purchase of the brothel.
The plaintiff’s evidence is that the deceased told him that he and Leon would jointly own “a business that will own the business”[150] i.e. that the business would be jointly owned from the start. The email of 4 July 2008 confirms that this is the way the deceased described it to him. The better view on the whole of the evidence, and I so find, is that the deceased intended that the plaintiff would acquire equity only over time, and would contribute by managing the business. I consider that it is unlikely that the deceased would have intended that the plaintiff acquire over time more than a 50% share, and he may have only ever intended less. The deceased’s intentions in this regard are of course not in themselves determinative as to the amount the Court considers appropriate, as all the statutory factors must be considered, including what he told the plaintiff.
[150]Transcript page 266, lines 13-15.
An award of the full amount of the capital investment the deceased had promised to make for the plaintiff would be in the order of $400,000, but such award would not reflect the deceased’s intentions, that the business had not yet in fact been acquired, and that the plaintiff will now not be required to acquire a capital sum over time. An award of half this amount, being the maximum of what the deceased may have intended over time, would not be sufficient in my view having regard to the relationship between the plaintiff and deceased.
I am also conscious that the award should not have undue impact on the amount to be distributed to the children. Their financial positions and promises made to them in life by the deceased are also important considerations. Melanie in some ways could be regarded as being in a similar position to the plaintiff in relation to such promises. She was encouraged by the deceased to believe that the money she was contributing to 32 Joynt St, both by way of rental over many years and by way of improvements, was not wasted because the house would ultimately be hers. Its current value and the fact that it is owned by the company could make this problematic if the amount she is to receive is substantially reduced. Similarly, the plaintiff was encouraged by the deceased to believe he had a home in Australia at 9 Joynt St, and that financial provision would be made for him by the acquisition of a business. The deceased also made promises to Bronwen, and evinced a desire to assist Jay.
Having regard to the factors which favour a substantial award to the plaintiff (the duration of the relationship, its closeness, the shared intention to resume cohabitation, the promises made to him, his lack of financial security) and those which require limitation of such an award (the competing moral claims of a parent/child relationship, the financial needs of the children, the promises made to them, the testator’s wishes as expressed in the will and caution as to whether a continuing resumption of cohabitation would have occurred) I consider the appropriate award to be $300,000.
In relation to the relationship, in my view, the amount I propose adequately reflects both the importance of the relationship to the deceased, but that it had been of limited support to him since the plaintiff began working overseas. It is not so burdensome given the size of the estate that it will unduly reduce the amounts available for the beneficiaries, which I consider will still be sufficient to give significant effect to the deceased’s intentions that Melanie acquire 32 Joynt St, that Bronwen be able to retain the Zoo and that there be a financial security net for Andrew and Jay. This sum will in all probability not be sufficient in itself to enable the plaintiff to buy a home in Australia, but it should enable him to make a substantial contribution towards such purchase, if that is what he chooses to do. There is no evidence as to where he wishes to live, and what the cost of accommodation there is. There is no evidence to suggest that the plaintiff will be unable to continue working until the usual retirement age, another 14 years, and so he may be able to service a loan to acquire a home. Alternatively, this sum can some give greater security for his retirement.
WHICH BENEFICIARIES TO BEAR BURDEN OF FURTHER PROVISION
Counsel for the third and fourth defendants, Andrew and Jay, submits that if any award is made the burden should be borne by Melanie and Bronwen solely, given the greater financial needs of the brothers. Counsel for Melanie and Bronwen does not demur entirely, but submits that some burden should be borne by the brothers. Section 97(2) of the Act provides:
(2)Unless the Court otherwise orders the burden of any such provision shall as between the person beneficially entitled to the estate of the deceased be borne by those persons in proportion to the values of their respective estates and interests in such estate:
Provided that the estates and interests of persons successively entitled to any property which is settled by such will shall not for the purposes of this subsection be separately valued but the proportion of the provision made under this Part to be borne by such property shall be raised out of or charged against the corpus of such property.
No submissions were put as to whether “the values of their respective estates and interests” requires or permits the unconditional gifts to Melanie and Bronwen to be valued differently to the life interests given to Andrew and Jay, although the share of the estate in each case is a quarter. Whether or not this is required by the section, it seems to me material that the brothers’ interests are life interests only, and so they will not have the freedom to deal with a large sum of capital that the sisters will, and, depending on what their trustees determine, may receive income only. They are also both in far more limited financial circumstances than their sisters. While this may not be a day to day problem for Andrew, given his accommodation and care seem at present to be secure, it is very significant in my view.
I consider that the appropriate order is that Melanie and Bronwen each bear one third of the award to be made to the plaintiff, rather than one quarter, and that Andrew and Jay each bear one sixth of the award. My intention is that two thirds, rather than one half, of the award be borne by the more financially secure sisters.
ORDERS
I will ask the legal representatives for the plaintiff to draw orders to give effect to these reasons, and will hear the parties in relation to costs if that is required.
| ANNEXURE A | ||||||||
| Schedule of passport entries 2002-2008 in plaintiff's Australian passport issued 8.8.2002 (drawn from Exhibit L) | ||||||||
| 2002 | In to Australia | Out of Australia | In to Phillipines | Out of Phillipines | In to Maldives | Out of Maldives | In to USA | Out of USA |
| 5/10/2002 | ||||||||
| 5/12/2002 | ||||||||
| 13/12/2002 | ||||||||
| 2003 | In to Australia | Out of Australia | In to Phillipines | Out of Phillipines | In to Maldives | Out of Maldives | In to USA | Out of USA |
| 4/01/2003 | ||||||||
| 5/01/2003 | ||||||||
| 7/01/2003 | ||||||||
| 2/10/2003 | ||||||||
| 21/10/2003 | ||||||||
| 22/10/2003 | ||||||||
| 14/11/2003 | ||||||||
| 2004 | In to Australia | Out of Australia | In to Phillipines | Out of Phillipines | In to Maldives | Out of Maldives | In to USA | Out of USA |
| 11/12/2004 | ||||||||
| 13/12/2004 | ||||||||
| 2005 | In to Australia | Out of Australia | In to Phillipines | Out of Phillipines | In to Maldives | Out of Maldives | In to USA | Out of USA |
| 3/04/2005 | ||||||||
| 23/04/2005 | ||||||||
| 6/05/2005 | ||||||||
| 2/10/2005 | ||||||||
| 5/11/2005 | ||||||||
| 18/11/2005 | ||||||||
| 2006 | In to Australia | Out of Australia | In to Phillipines | Out of Phillipines | In to Maldives | Out of Maldives | In to USA | Out of USA |
| 1/04/2006 | ||||||||
| 5/05/2006 | ||||||||
| 12/05/2006 | ||||||||
| 30/09/2006 | ||||||||
| 31/10/2006 | ||||||||
| 10/11/2006 | ||||||||
| 2007 | In to Australia | Out of Australia | In to Phillipines | Out of Phillipines | In to Maldives | Out of Maldives | In to USA | Out of USA |
| 21/05/2007 | ||||||||
| 6/06/2007 | ||||||||
| 27/11/2007 | ||||||||
| 28/12/2007 | ||||||||
| 2008 | In to Australia | Out of Australia | In to Phillipines | Out of Phillipines | In to Maldives | Out of Maldives | In to USA | Out of USA |
| 4/01/2008 | ||||||||
| 31/03/2008 | ||||||||
| 27/05/2008 | ||||||||
| 16/06/2008 | ||||||||
| 20/06/2008 | ||||||||
| 24/09/2008 | ||||||||
| 29/09/2008 | ||||||||
| 14/11/2008 |
---
| ANNEXURE B | ||||||
| Consolidated schedule of emails between deceased and plaintiff from: | ||||||
| JE-1 Plaintiff's affidavit of 13.4.2010 in reply to Mrs Robins; | ||||||
| JE-3 Plaintiff's affidavit of 13.4.2010; | ||||||
| JE-32-37 Plaintiff's affidavit of 6.10.2009; and | ||||||
| Exhibit P | ||||||
| 2005 | Date | From | To | Subject line | Source in evidence | |
| 23/12/2005 | Deceased | Plaintiff | christmas greetings | JE-3 | ||
| 2006 | Date | From | To | Subject line | Source in evidence | |
| 24/02/2006 | Deceased | Plaintiff | hello | JE-37 (duplicated in JE-3 | ||
| 8/03/2006 | Deceased | Plaintiff | missing in action | JE-3 | ||
| 9/06/2006 | Deceased | Plaintiff | greetings | JE-3 | ||
| 3/10/2006 | Deceased | Plaintiff | lost bag | JE-3 | ||
| 6/10/2006 | Deceased | Plaintiff | alls well | EX-P | ||
| 23/12/2006 | Deceased | Plaintiff | hello | JE-3 | ||
| 27/12/2006 | Deceased | Plaintiff | my bad memory | JE-3 | ||
| 2007 | Date | From | To | Subject line | Source in evidence | |
| 15/01/2007 | Deceased | Plaintiff | hello | EX-P | ||
| 15/01/2007 | Deceased | Plaintiff | hello again/ | JE-3 | ||
| 17/01/2007 | Deceased | Plaintiff | clarification | JE-3 | ||
| 26/01/2007 | Deceased | Plaintiff | organising | JE-3 | ||
| 14/03/2007 | Deceased | Plaintiff | connection | JE-3 | ||
| 26/03/2007 | Deceased | Plaintiff | where are you | JE-3 | ||
| 2/04/2007 | Deceased | Plaintiff | contact | JE-3 | ||
| 7/09/2007 | Deceased | Plaintiff | not happy | JE-3 | ||
| 12/09/2007 | Deceased | Plaintiff | thanks | JE-3 | ||
| 13/09/2007 | Deceased | Plaintiff | shoulder | JE-3 | ||
| 21/09/2007 | Deceased | Plaintiff | wrong impressions | JE-3 | ||
| 25/09/2007 | Deceased | Plaintiff | new computer | JE-3 | ||
| 25/09/2007 | Deceased | Plaintiff | repeat | JE-3 | ||
| 29/09/2007 | Deceased | Plaintiff | longevity | EX-P | ||
| 29/09/2007 | Deceased | Plaintiff | planning | JE-1 (duplicated in JE-3) | ||
| 30/09/2007 | Deceased | Plaintiff | (c)ommunication | JE-3 | ||
| 14/12/2007 | Deceased | Plaintiff | family | JE-3 | ||
| 2008 | Date | From | To | Subject line | Source in evidence |
| 15/02/2008 | Deceased | Plaintiff | nighclub | EX-P | |
| 29/02/2008 | Deceased | Plaintiff | update | EX-P | |
| 11/03/2008 | Deceased | Plaintiff | update | EX-P | |
| 15/04/2008 | Deceased | Plaintiff | recovery | JE-32 | |
| 6/06/2008 | Deceased | Plaintiff | catchup | EX-P | |
| 10/06/2008 | Deceased | Plaintiff | patience | JE-3 | |
| 22/06/2008 | Deceased | Plaintiff | timing | JE-3 (duplicated in JE-1) | |
| 28/06/2008 | Deceased | Plaintiff | hello | JE-33 (duplicated in JE-3) | |
| 29/06/2008 | Deceased | Plaintiff | progress | JE-34 (duplicated in JE-3) | |
| 4/07/2008 | Deceased | Plaintiff | progress | JE-35 | |
| 5/07/2008 | Deceased | Plaintiff | return | JE-36 (duplicated in JE-3) | |
| 10/07/2008 | Deceased | Plaintiff | disappointment | EX-P | |
| 24/07/2008 | Deceased | Plaintiff | troubles | JE-3 | |
| 25/07/2008 | Deceased | Plaintiff | loyalty | JE-3 | |
| 3/08/2008 | Deceased | Plaintiff | stress | JE-3 | |
| 24/08/2008 | Deceased | Plaintiff | communication | JE-3 | |
| 25/09/2008 | Deceased | Plaintiff | hello | JE-3 | |
| 25/09/2008 | Deceased | Plaintiff | mobile phone | JE-3 |
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