Larkin v Borg

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 6959 of 2010

IN THE MATTER OF Part IV of the Administration and Probate Act1958

-and-

IN THE MATTER OF the Will and Estate of JOSEPH IGNATIUS GABRIEL BORG, deceased

ELIZABETH ANNE LARKIN	Plaintiff
v
JOANNE VENDRA BORG (who is sued as the executrix of the will and trustee of the estate of the abovenamed deceased)	Defendant

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JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 and 4 October 2012
DATE OF JUDGMENT:	12 April 2013
CASE MAY BE CITED AS:	Larkin v Borg
MEDIUM NEUTRAL CITATION:	[2013] VSC 128

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TESTATOR’S FAMILY MAINTENANCE – Claim by a girlfriend of the deceased – Deceased a widower survived by one adult child – Estate left to the adult child of the deceased – Application under Part IV of the Administration and Probate Act 1958 – Whether the relationship between the plaintiff and the deceased gave rise to the relevant moral duty on the part of the deceased to make provision for the plaintiff – Forsyth v Sinclair [2010] VSCA 147 (22 June 2010); Whitehead v State Trustees Ltd [2011] VSC 424 (2 September 2011)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	I J Hardingham QC J R Davis	Anderson Law
For the Defendant	P J Riordan SC J K Arthur	Randles Cooper & Co

HER HONOUR:

Introduction

In this proceeding, the plaintiff claims, pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’), provision for her maintenance and support from the estate of Joseph Ignatius Gabriel Borg, deceased (’the deceased’).

The plaintiff contends that she was in a warm and loving relationship with the deceased starting from the summer of late 1991 or early 1992, until his death in March 2010 and that her relationship with the deceased was such that it gave rise to the relevant duty on the part of the deceased to make provision for her from his estate.

The deceased died on 6 March 2010 leaving a will dated 17 May 1998. Probate of the will was granted to his daughter, the defendant, on 19 July 2010.

At the date of his death, the deceased was:

(a) a widower, his wife having died in March 2000; and

(b) the father of one child, namely, the defendant.

By his will, the deceased left his estate, valued at $7 587 058.76, to the defendant.

The plaintiff filed three affidavits sworn by her, an affidavit by her son, Richard Larkin, and an affidavit by her sister, Stephanie H’Enrie.

The defendant filed affidavits sworn by the defendant, Margaret Cecilia Critchley, Diane Martin, Natasha Booth, Alfred Vella, Eric Wetmor and Haralmbos Athanasakopoulos.

Applicable Principles

In an application for provision made under s 91 of the Act, the Court must decide:

(a) at the date of his death, whether the deceased had a responsibility to make provision for the maintenance and support of the plaintiff;

(b) if so, whether the deceased’s will made adequate provision for her proper maintenance and support; and

(c) if not, the amount of provision that should be ordered.

In considering these questions, the Court must have regard to the matters set out in ss 91(4)(e)–(p) of the Act. Those matters are as follows:

91 Power of the Court to make maintenance order

…
(4)The Court … 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.

Prior to the enactment of s 91 of the Act on 20 July 1998, the traditional class of claimants under the Testator’s Family Maintenance legislation was restricted to widows, widowers and children of the deceased. With the enactment of Part IV of the Act,[1] the class of applicants was broadened by giving power to the courts to decide to whom the deceased had a responsibility to provide by reference to certain criteria.
[1]Part IV of the Act was introduced by the Wills Act 1997, as amended by the Miscellaneous Acts (Omnibus No 1) Act 1998.

In Richard v AXA Trustees Ltd, Eames J spoke of the legislative changes as follows:

the overall effect of the changes in the legislation [was] to codify that which had been well established as the relevant principles at common law, but to expand the category of persons for whom applications for family provision might be made.[2]

[2][2000] VSC 341 (1 September 2000) [7].

As Harper J stated in Schmidt v Watkins:

Clearly enough, the deficiency which the amendments were designed to remove was a lacuna in the extent of the legislation's previous reach. According to modern notions of what is right, some may properly look to others for maintenance and support even though there is no tie of blood or marriage between them. While, therefore, all citizens have a moral duty to make adequate provision out of their estate for such of their surviving spouse or children who would otherwise be left without proper maintenance and support, that moral duty is not necessarily restricted to those family members. Others (including those who were not related) may fall within its reach. Until the passage of the Wills Act 1997, Victorians in such a position could not look for assistance to the legislative provisions dealing with testator's family maintenance. On the other hand, one's moral duty is by definition a limited duty. Accordingly, the remedy was not a wholesale enlargement of the field of prospective claimants. Nor was it left to the courts in the exercise of an unprincipled discretion to decide whether a particular claimant was or was not a person for whom the deceased had the requisite responsibility. Rather, the remedy was the inclusion into the class of those claimants of persons who, although not numbered among the deceased's immediate family, nevertheless had ‘a moral claim to the deceased's estate’.[3]

[3][2002] VSC 273 (24 July 2002) [9].

The basis of the jurisdiction is responsibility. Traditionally this was expressed as a moral duty or moral obligation. The approach taken in Bosch v Perpetual Trustee Co Ltd is frequently referred to with approval:

Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father. As was truly said by Salmond J in In re Allen (Deceased), Allen v Manchester: ‘The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.[4]

[4][1938] AC 463, 478–9. Cited with approval in, for instance, Grey v Harrison [1997] 2 VR 359, 364–5 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 815–19 (Ormiston J).

In Collicoat v McMillan, Ormiston J elucidated the concept of a moral claim and obligation as follows:

In my opinion the expression ‘moral claim’ has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That ‘moral obligation’, as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.[5]

[5][1999] 3 VR 803, 818. See also Blair v Blair (2004) 10 VR 69, 77–80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA).

In applying this approach, something of a balance must be struck by the courts in deciding cases under Part IV of the Act. On the one hand, a free society requires that a person can do as he or she pleases with his or her own property. On the other hand, morality requires that a testator consider those persons closest to him or her as being the first in the line of recipients of his estate. The Court should only interfere with the terms of a will if the testator has failed in his or her moral duty.[6]
[6]See, e.g., Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA); Grey v Harrison [1997] 2 VR 359, 365 (Callaway JA).

In Grey v Harrison Callaway JA stated:

it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent.[7]

[7][1997] 2 VR 359, 366.

Likewise, in Whitehead v State Trustees Ltd, Bell J stated:

when deciding whether to make an order for provision under s 91(1), preserving the deceased’s freedom of testamentary disposition is a significant discretionary consideration.[8]

[8][2011] VSC 424 (2 September 2011, as revised on 19 October 2011) [40].

A plaintiff bears the onus of proving that the deceased had a responsibility to make provision for his or her maintenance and support and failed to do so.

In the recent decision of State Trustees Ltd v Bedford, Neave JA stated:

It is trite law that claims against the estate of a deceased person must be approached with caution.[9]

[9][2012] VSCA 274 (16 November 2012) [104].

This approach reflects the following statement by Harper J in Schmidt v Watkins:

In the present case, Mr Schmidt alleges a breach by the deceased of her duty to him. In Grey v Harrison, the Court of Appeal (Tadgell and Charles JJA concurring with the judgment of Callaway JA) equated such a breach with an abuse by the deceased of her right to freedom of testamentary disposition. This being ‘one of the freedoms that shape our society, and an important human right’ an allegation of its abuse is a serious allegation. I must bear this in mind when considering whether or not I am reasonably satisfied that it has been made out. There is, accordingly (to repeat the words of Dixon J in Birmingham v Renfrew) ‘a great need for caution in accepting proofs’ put forward by Mr Schmidt to establish the existence of the duty he alleges. That duty, he claims, arose because Mary Quinn was his de facto spouse, and because he was very generous towards her. She cannot be heard in reply. She cannot defend her testamentary judgment. The ‘great need for caution’ will therefore extend to the examination of his evidence on these matters, especially to the extent that it is not corroborated.[10]

[10][2002] VSC 273 (24 July 2002) [21].

Whether the deceased testator failed to make adequate provision for the proper maintenance and support of an applicant is determined by a consideration of the facts and matters known to the deceased at the time of his or her death. A wise and just testator is deemed to be aware of relevant circumstances prevailing at the time of death but the testator will only be deemed to be aware of subsequent events to the extent that they were reasonably foreseeable at the time of death.[11]
[11] Coates v National TrusteesExecutors and Agency Co Ltd (1956) 95 CLR 494, 507–8 (Dixon CJ).

Recent cases with a similar issue to this proceeding are Forsyth v Sinclair,[12]Whitehead v State Trustees Ltd and Schmidt v Watkins.[13] Since the hearing of this proceeding, the Court of Appeal has delivered its judgment in State Trustees Ltd v Bedford and dismissed the appeal by the estate.
[12][2010] VSCA 147 (22 June 2010) [60] (Neave JA).
[13]See the references to the latter two cases in paragraphs [12], [17] and [20].

In Schmidt v Watkins Harper J stated:

It is equally clear that a duty to provide in one's will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. Nor would one which did not go beyond that of debtor and creditor. Even one founded upon, or which resulted in, acts of kindness or consideration that went well beyond the ordinary, might not do so. Generally speaking, however, a ‘domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner’ would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility (although, of course, in the particular case that responsibility might not arise or might already have been discharged).
In the context of this case (as will be seen when the facts are examined) it is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result the recipients had a responsibility to make adequate provision in their wills for the proper maintenance and support of their benefactors.[14]

[14][2002] VSC 273 (24 July 2002) [22]–[23] (citations omitted).

Finally, in State Trustees Ltd v Bedford Neave JA observed:

A man and a woman [or a same sex couple] may have an emotional commitment to each other akin to that of family members, even if they do not live together. Such a commitment may exist even though the parties are not financially dependent on one another and neither party contributes to the building up of the other parties’ property. The scope of Part IV is not confined to those relationships which do not conform to traditional ideas about male/female and parent/child relationships.[15]
[15][2012] VSCA 274 (16 September 2012) [131].

The Deceased

The deceased was born in Malta on 29 November 1930. He came to Australia as an assisted migrant in 1948. He became an Australian citizen. He worked on the railways, the Snowy Mountain Scheme, at the Melbourne City Council and in other jobs.

The deceased commenced a domestic relationship with Marjorie Nelson in the 1960s. Marjorie Nelson changed her name by deed poll to Marjorie Borg in March 1967. Their daughter, the defendant, was born on 19 March 1970. Their domestic relationship continued until they married in March 1999 and they remained together until Marjorie died in March 2000. Throughout the length of their relationship, the deceased always referred to Marjorie as his wife and told others that they were married. The deceased and Marjorie both worked hard to establish themselves and built up a successful business operating boarding house accommodation.

Apart from the plaintiff, the deceased had extra marital relationships with two other women, Mrs Diana Martin and Mrs Margaret Critchley.

The Plaintiff’s Evidence

The plaintiff has sworn three affidavits in this proceeding, on 21 December 2010 (‘first affidavit’), 12 May 2011 (‘second affidavit’) and 20 March 2012 (‘third affidavit’).

Background

The plaintiff is 65 years of age.

Until 1991, the plaintiff was married. The marriage produced four children. In 1991, she separated from her husband and subsequently they divorced. At the time they separated, the plaintiff’s children were aged 22, 21, 19 and 17 years.

After she had separated from her husband, when she was aged about 43 to 44 years, the plaintiff met the deceased at a dance during the summer of late 1991or early 1992. The plaintiff was keen on rock and roll dancing.

From the beginning, the deceased told the plaintiff that he was married but ‘the sexual side was not there’, and that he and his wife slept in separate beds. He said he did not want to leave his wife because she was a ‘good wife’ and they were involved in a business together.

The deceased told the plaintiff that he was 51 years of age, although, unbeknown to the plaintiff, this was not true. The deceased was between 60 and 61 years of age at the time that he met the plaintiff.[16]
[16]The plaintiff’s evidence is that she found out the true age of the deceased from the defendant when the deceased was in hospital shortly before his death in March 2010. See the affidavit of Elizabeth Anne Larkin sworn 21 December 2010 [62].

Although the plaintiff was concerned about the morality of her relationship with the deceased, she decided to proceed because, she explained, she could not help herself. Soon after they met, the plaintiff and the deceased commenced a sexual relationship. The plaintiff gave evidence in her first affidavit that she has never had another relationship or been interested in any other man since she met the deceased.

Nature of the Commitment Made by the Deceased

The plaintiff’s evidence in her first affidavit was that the deceased told her ‘I will never marry you but I will never leave you’ and that she accepted this ‘because I thought maybe down the track he would marry me’. The plaintiff also deposed that, at the time the deceased was hospitalised in 2009, the deceased told the plaintiff ‘Liz, I loved you but you loved me more, it was more one sided’. In cross-examination, the plaintiff accepted that, even after the deceased’s wife died, she was well aware that the deceased would not marry her.

In her first affidavit, the plaintiff exhibited copies of cards given to her by the deceased during the relationship and was asked to produce the originals during the trial. Two birthday cards were given to the plaintiff by the deceased in the early stages of their relationship. The plaintiff was unable to date a third birthday card and two Christmas cards given to her by the deceased. Upon being given one of the birthday cards in the early stages of the relationship, the plaintiff asked the deceased to add the words ‘to my darling’, which she said he did in her presence. Those words are in black pen ink, whereas other words appear in blue ink. This is the only card that mentions ‘love from Joe’. The word ‘love’ on this card is also written in black ink. Aside from these cards, the plaintiff agreed in cross-examination that she had nothing else in writing from the deceased where the deceased expressed his love for her. The plaintiff also agreed in cross-examination that the deceased never said to her that he loved her, but, she added, he did not ever say that he did not want to see her again.

Regularity of the Relationship

The plaintiff’s evidence in relation to the regularity of her contact with the deceased during the relationship differed between each affidavit, and between her affidavits and evidence in cross-examination.

To understand the plaintiff’s evidence in this respect, it is necessary to set out the various locations at which the plaintiff lived over the course of her relationship with the deceased. The plaintiff lived in the following locations at the following times:

(a) at the family home in Hoppers Crossing up until 1996;

(b) in a neighbour’s caravan for a period of approximately six months following the death of the plaintiff’s daughter Shantelle in March 1996;

(c) at Woodville Park in Hoppers Crossing, where she rented a flat for 12 months in late 1996 and lived with her son, Jason, and his girlfriend;

(d) in Altona from early 1998 for 12 months;[17]
[17]The plaintiff’s evidence is that no one lived with her at her home in Altona (see paragraph [42] below), although the plaintiff’s son, Richard Larkin, gave evidence that he lived with the plaintiff in Altona (see paragraph [102](b) below).

(e) in Footscray (Maidstone) from late 1998 until 2005, where she lived with her son, Richard;

(f) in Tasmania in 2005 until April or May 2006;

(g) in Werribee for two months upon returning from Tasmania; and

(h) in a flat in Ascot Vale from 2006 onwards.

The plaintiff’s evidence in her first affidavit is that the regularity of her relationship with the deceased more or less continued throughout their 19 year relationship. The plaintiff stated:

Joe stayed over the same nights every week, Wednesday, Thursday and Saturday. Nothing changed. They were always those nights. He would stay most Sundays until 1pm and we would go down for brunch by the river in Werribee until we moved to Altona.[18]

[18]Note: the emphasis is added in italics this quotation, and the quotations that appear in paragraphs [40]–[41], [43]–[46] and [49].

The plaintiff also stated in this affidavit that, following the death of her daughter and upon moving into her neighbour’s caravan, ‘Joe came to stay with me three nights a week. Nothing changed’.

The plaintiff then stated that:

Towards the end of 1996, when I moved out of the caravan, I moved into a flat in Woodville Park for 12 months. … Joe would still come to my flat 3 nights a week and we would go out as usual.

The plaintiff deposed that when she rented a house in Altona in 1998:

Joe and my relationship continued there. We didn’t have anybody living with us so our relationship started to bloom more intimately. When we moved to Altona this is when things were really beautiful. We became a lot more intimate. I used to have the table set up before he arrived. I would have flowers and candles around the house; the bath was ready with bubbles in it.

The plaintiff moved to Footscray (Maidstone) in late 1998. The plaintiff’s evidence was then that, in the period after the death of the deceased’s wife in 2000, ‘Joe had started his grieving’ and the plaintiff was looking after her son Richard Larkin, who was ‘using drugs’. The plaintiff stated that ‘[h]e [the deceased] still stayed with me 3 nights during this time, and I helped him get through his grieving’.

The plaintiff acknowledged a break in her relationship with the deceased upon her leaving for Tasmania in 2005. The plaintiff’s evidence in her first affidavit is that she lived in Tasmania for a 12 month period. The plaintiff then acknowledged a change in the pattern of her nights with the deceased after returning to Melbourne in 2006. The plaintiff states that ‘[b]y this time I now know that the deceased would have been about 75 or so. He was then staying with me two nights a week, Thursday and Saturday. Although sometimes on the Thursday he might leave at 11–12pm’.

The plaintiff also stated that during the ‘last 3 years of his life’, the deceased suffered from illness. The plaintiff refers to this period in her first affidavit and states that, ‘[h]e would still come and stay with me at … Ascot Vale (where I moved when I came back from Tasmania)’.

In her second affidavit, the plaintiff again refers to the nights that the deceased stayed with her. This affidavit was made in reply to the defendant’s affidavit sworn 28 March 2011. In response to paragraph [34] of the defendant’s affidavit, wherein the defendant deposes that she would see the deceased at greyhound racing on a Saturday night, the plaintiff states:

I say that I do no know when the Defendant went to the greyhound races with the Deceased; but I am able to say with certainty that for the first 12 years of our relationship from 1991 until I went to Tasmania, Joe and I spent every Saturday night together, apart from a very few Saturday nights when I wasn’t feeling well, or he had been invited to a wedding or other formal function to which I was not invited.

The plaintiff’s third affidavit is in reply to a number of affidavits filed by the defendant. This includes two affidavits sworn by Mrs Critchley on 14 May 2011 and 27 February 2012;[19] an affidavit sworn by Mr Eric Wetmore on 21 February 2012; and an affidavit sworn by Mr Alfred Vella on 15 February 2012.
[19]Note: In her third affidavit, the plaintiff states that she did not read Mrs Critchley’s affidavit sworn 14 May 2011, until after the plaintiff’s first and second affidavits had been filed and served.

Mr Wetmor and Mr Vella both knew the deceased from approximately 2001 until he died in March 2010. They both depose in their affidavits to having been friends with the deceased and attending greyhound racing events with him, including on Saturday nights, during the time they knew him. The plaintiff’s response in her third affidavit to their evidence is as follows:

Both men depose to meeting Joe in 2001/2002 at the greyhound races at The Meadows, Broadmeadows. … Vella and Wetmore are inconsistent with respect to their observations as to when Joe attended the grey-hound meetings. I am unable to comment on how often or otherwise Joe attended the grey-hound meetings while I was in Tasmania.

Mrs Critchley’s evidence in her first and second affidavits is that she spent many nights with the deceased over the course of their relationship, including Wednesday evenings in 1994 and 1995, Saturday evenings and weekends. In her second affidavit, Mrs Critchley gave evidence as to particular weekend spent with the deceased over the course of their relationship. In response, in her third affidavit, the plaintiff states:

As to both the first and second Critchley Affidavits, I cannot comment on any relationship that [Ms] Critchley might have had with Joe, or state precisely which weekends I did not see Joe which in turn allowed him to spend that time with Margaret.
I recall that in 1994 Joe and I had a break for about 4 weeks because we were having some disagreements about his controlling attitude … When we resumed our routine however, it was as good as ever.
Our standard routine was occasionally interrupted if either of us was not feeling well (more so in Joe’s later years) or if I was in Tasmania. Some absences from Joe that I recall were when he told me he was going on a fishing weekend to Eden with his Maltese friends. …
On another occasion, he said he was going to a wedding. Once or twice that I recall he would say he wanted to go to the greyhounds, but I didn’t want to go so he would go on his own. I went to Tasmania with Shantelle in 1995; and in 1997 went to Tasmania for the weekend for my 50^th birthday. Joe told me he could not come with me for my birthday because he had to work. In March 1996 my family came from Tasmania to celebrate Shantelle’s 21^st birthday. Joe did not attend because … [my former husband] was there.
There were occasions when Joe had the flu. He was always getting the flu and passing the virus on to me, so on some occasions I would suggest that he not come so I could recover and he wouldn’t continue to pass it on to me. This was during the time I was very run down over the death of my daughter. From time to time, I had family members come to visit for a week and I would ask Joe if he would mind not coming. These were all occasions when Joe would have had the opportunity to spend time with others, unbeknown to me.
… Even though we had some times apart, in all the years I was with Joe, on our nights — Wednesday, Thursday and Saturday (and then Thursdays and Saturdays) over 19 years we would have only had an average of two cancelled nights a year.

The plaintiff’s evidence was challenged by the defendant, both as to the general pattern and regularity of nights with the deceased, and as to particular periods of time in the relationship.

Counsel for the defendant put to the plaintiff Mrs Critchley’s evidence that, early in her relationship with the deceased, in 1994 and 1995, Mrs Critchley would meet the deceased in Brunswick after her dancing class on Wednesday evenings. The plaintiff responded ‘I still say that I was with him Wednesday, Thursday and Saturday nights when we returned in our relationship [after the 1994 break-up]’, and confirmed that she was ‘with him the whole night, except for the nights that he cut out and left’. Counsel for the defendant then put to the plaintiff that she must disagree with Mrs Critchley’s evidence in relation to Wednesday nights, except where the Wednesday nights fell within the period that the plaintiff and deceased broke up in 1994.[20] The plaintiff agreed, noting ‘unless it was an evening that I cancelled out’. When asked whether there were many nights where the plaintiff cancelled in 1994 and 1995, her answer was ‘possibly … and he cancelled out on a few nights with me too’.
[20]See below paragraph [132].

Counsel for the defendant then asked the plaintiff ‘[c]ertainly, you contend don’t you, that on Saturday nights there were only about two cancelled Saturday nights a year, throughout the entire period’? The plaintiff responded ‘[d]id I say that? Two nights in the year?’. The plaintiff then confirmed that it was not true that there were only two cancelled nights per year. She then gave evidence that she guessed that there were three to four cancelled Saturday nights per year, and overall approximately 12 cancelled nights per year. When questioned about the difference between the estimated number of nights cancelled, as between her oral evidence and third affidavit, the plaintiff initially replied that ‘[w]ell when I swore this affidavit I was under such emotional strain [with] the death of Joe’. On learning the affidavit was sworn in March 2012, the plaintiff responded ‘I’ve made a mistake’.

Counsel for the defendant put Mrs Critchley’s evidence to the plaintiff that between 1996 to 2006 she would spend weekends with the deceased. The plaintiff’s reply was ‘[w]ell, that’s when we were having some broken nights because of Shantelle’s death’ and that this continued ‘from her death onwards’. The plaintiff agreed that there were a lot of broken nights, but that ‘there wasn’t as many as [counsel for the defendant is] trying to emphasise to me’. She agreed that by this time she was not spending Sundays with the deceased.

Counsel for the defendant put to the plaintiff that ‘after the first few years of your relationship with the deceased … there were only a few Saturday nights that you spent with the deceased’. The plaintiff disputed this and stated ‘[t]here was a few Saturday nights I didn’t spend with him’. Later, counsel for the defendant asked the plaintiff whether she understood that Mrs Critchley’s evidence was that she spent most Saturday nights with the deceased. The plaintiff responded ‘[s]he spent a lot of Saturday nights with him, sir, when I went to Tasmania’. The plaintiff also added ‘I disagree with … [Mrs Critchley] on a lot of Saturday nights, 100 per cent’. She accepted that her own evidence in her second affidavit, that she spent every Saturday night with the deceased in the first 12 years of her relationship, aside from a very few, was not consistent with Mrs Critchley’s evidence.

The plaintiff agreed that from late 1998, when she was in Footscray, she cancelled a lot of nights. She thought that the most cancelled nights were between 1998 to 2005. The plaintiff thought the deceased cancelled a few nights as well. The plaintiff stated that the deceased would still call her on cancelled nights.

Counsel for the defendant took the plaintiff through particular events detailed in Mrs Critchley’s second affidavit, wherein Mrs Critchley deposed that she was with the deceased. The plaintiff commented on some of these events as follows:

(a) Mrs Critchley’s evidence is that she spent a weekend with the deceased in October 1994. The plaintiff’s response was ‘that could have been the time when we had broken up’, but agreed that it could also just have been another weekend the deceased was not there for her.

(b) Mrs Critchley’s evidence is that she went on a trip to Eden with the deceased in November 1994. The plaintiff’s response was that she remembered the deceased had broken that weekend off and again suggested that it may have fallen in the time that she and the deceased were not together. Upon counsel’s pointing out that it was not possible that, if the break-up had occurred in October 1994, the plaintiff would have been back together with the deceased by November 1994 (if indeed the break-up was four weeks), the plaintiff suggested that the reconciliation may have occurred by December and then added, ‘I don’t know. I don’t recall, I don’t remember’. The plaintiff then agreed the break-up was ‘maybe for two months’, before revising her answer and suggesting that the break-up was ‘maybe … six weeks at the longest’.

(c) Mrs Critchley’s evidence is that she spent a weekend with the deceased at Mount Buffalo in January 1997. The plaintiff’s response was ‘[i]n 1997 that would have been the year I sold my house and I think I may have gone to Tasmania for a weekend or a few days after I sold my house’. On being asked by counsel for the defendant ‘[b]ut you don’t know whether it’s the same weekend or not, do you?’, the plaintiff answered ‘no’. On further questioning the plaintiff could not recall whether her house was sold in 1997.

(d) Mrs Critchley’s evidence is that she attended an AFL Grand Final with the deceased on 25 September 1999. The plaintiff’s response was ‘that would have been when I cancelled out with him when … I was living in Footscray in 1998, in Maidstone, and that’s when I was having family visiting a lot and was cancelling out on weekends’.

(e) Mrs Critchley’s evidence is that she attended a Maltese Festival with the deceased on Saturday 22 August 2009. The plaintiff’s evidence was that she did have a recollection of this occurrence, ‘because I cancelled that Saturday night out … I wasn’t well’. On being asked by counsel for the defendant whether there was any reason that she remembered that the cancellation occurred on 22 August 2009, the plaintiff responded ‘[n]o reason. I just remember I did because … I didn’t cancel out very rarely [sic] on Saturday nights’. Counsel for the defendant put it to the plaintiff that ‘it’s a nonsense that you remember what you did on 22 August 2009. It’s years ago, isn’t it?’, to which the plaintiff responded ‘2009 is only three years ago’. The plaintiff then confirmed that she had a specific recollection that 22 August 2009 was the night she cancelled, but when asked whether she could say that under oath, the plaintiff responded ‘I can’t do this … no, I can’t’.

(f) Finally, Mrs Critchley’s evidence is that on 5 September 2009 she attended the Feast of St Julian dinner dance with the deceased. The plaintiff did not recall any discussion with the deceased about his attending this dinner dance. The plaintiff added ‘I just don’t believe that all these nights so close to his death she’s saying she was with him and I wasn’t. I was with him those Saturday nights in 2009, 90 per cent of them, unless like I said, one night there I asked him not to come because I wasn’t feeling well’.

The plaintiff also gave evidence that throughout the relationship, if she wanted to contact the deceased, she had to ring him or he would ring her at pre-arranged times.

In re-examination, the plaintiff confirmed that the number of cancellations of regular nights with the deceased differed over the years. Between 1991 and 1996, there were not very many cancelled nights, aside from the period of time that the deceased and plaintiff were broken up. After the death of the plaintiff’s daughter, there were more broken nights. There were also more broken nights when the plaintiff lived with Jason, and when her son, Richard, was trying to come off marijuana. The plaintiff also gave evidence that she lived in Werribee for two months after returning from Tasmania in 2006, and during that time she saw the deceased once when he travelled to Werribee.

Special Occasions, Activities and Outings

In her first affidavit, the plaintiff describes outings and activities with the deceased over the course of their relationship:

I celebrated all of Joe’s birthdays with him. If his birthday fell on one of his days with me, we would do something special/ If his birthday was on a day that he wasn’t coming to me, we would celebrate next time I saw him. I always arranged a cake for him.
… As with his birthdays, if my birthday fell on one of ‘our’ days, we would do something nice, otherwise, on the day closest. … Christmas was the same—if it fell on one of ‘our’ nights we would spend the day and night together.
Joe and I … would go away to odd places. We went to Bright … for a weekend in autumn. … Another time we got a mini bus with some friends and went to Echuca. … We went on a lovely day trip along the Great Ocean Road to Lorne.
One of the best times was when we won a rock n roll dancing competition in 1994. The prize was an overnight stay in a hotel in the City and tickets to Phantom of the Opera. We also won a prize of a stay at a Motel.
… Joe and I enjoyed many outings over the 19 years of our relationship. These are just some of them: Werribee races; Geelong beach; Menzies City Club restaurants; New Years Eve and Christmas, from time to time if it was ‘our’ day including Darby’s in 1994; Tasmania; celebrated all of Joe’s birthdays with him since the start of our relationship; ballroom dancing; Motels; Debutante Ball on 11^th August 1993 at Brighton Town Hall; Rock ‘n’ Roll nights in Doncaster; Chinese Restaurant and Club in Werribee; Luna Park; Rock Café in City [sic]; my grandson’s sports; Yarraville Club; Café Clicko … Dracula’s restaurant; Secret Garden live show; Julio Iglesias at the Casino. There were many others.

The plaintiff also deposed in her first affidavit that, after the death of the deceased’s wife in March 2000:

Joe and I still went out a lot, but we didn’t always agree what we wanted to do. … I didn’t want to go dancing as much, I just wanted to go the movies [sic] and he wanted to go to the dog racing. He loved the grey-hounds but I was never into that. But we still had some beautiful nights together.

The plaintiff’s first affidavit exhibited photographs of some of the events referred to above. The photographs documented in or around 36 separate occasions.[21] Of those occasions recorded by photographs that are given a date by the plaintiff, seven occasions are dated 1991; six occasions are dated 1992; four occasions are dated 1993; six occasions are dated 1994; three occasions are dated 1995; one occasion is dated 1997; one occasion is dated 1998; one occasion is dated 2005, although, on cross-examination, the plaintiff appeared to accept that the photograph was taken in 1994 or 1995; and finally, one occasion is dated 2009. There is also one photograph undated, in which the plaintiff’s daughter Shantelle appears, and accordingly was taken in or prior to March 1996.
[21]There are a number of photographs exhibited to the plaintiff’s affidavit where it is unclear whether those photographs were taken on the same or a separate occasion.

In cross-examination, the plaintiff agreed that she had taken some time to consider the outings that she could remember with the deceased over the length of her relationship with him. She said that she told her lawyers of all the outings or all she could remember. However, when asked about the ‘many outings over the 19 years of our relationship’[22] referred to in her first affidavit, the plaintiff agreed that vast majority of the events referred to by her occurred between 1991 and 1994.[23] The plaintiff also agreed that, for the purposes of establishing the extent of her relationship with the deceased, she went through her photograph collection and provided most of them to her lawyers. In turn, her lawyers included most of them in her affidavit.
[22]This was the plaintiff’s evidence in her first affidavit. See above paragraph [59].
[23]See, e.g., Transcript of Proceedings, Larkin v Borg (Supreme Court of Victoria, McMillan J, 2 October 2012) 42–65. Exceptions were a photograph of a dinner at Dracula’s restaurant that the plaintiff estimated to have been taken in 1995 but said could have been taken in 1994, and a photograph of the plaintiff and the deceased at a Maltese function in 2009.

Counsel for the defendant put to the plaintiff that, by the time she was living in Footscray (Maidstone) in late 1998, she did not have a great deal in common with the deceased. The plaintiff’s response was ‘[w]e used to go to the movies together … We used to watch football on TV all the time. Dining out’. The plaintiff agreed that she did not want to go dancing as often, that she wanted to go to the movies, and that the deceased wanted to go to greyhound racing events. Counsel for the defendant then put to the plaintiff ‘you didn’t always agree about what you wanted to do during this period, did you?’, to which the plaintiff said ‘no’. The plaintiff agreed that this put stress on the relationship.

Finally, the plaintiff gave evidence in her third affidavit that she attended a football grand final with the deceased. She repeated this evidence during cross-examination, adding that the grand final she attended was in the ‘first or second year’ of her relationship with the deceased. Upon further questioning, the plaintiff’s evidence was that North Melbourne, being the deceased’s football team, played in the grand final and that North Melbourne won. When counsel for the defendant put to the plaintiff that North Melbourne did not play any grand final between 1990 and 1996, the plaintiff’s response was ‘I must have made a mistake then, but I know I went to a grand final and North Melbourne was playing the game’. The plaintiff then agreed she was not too sure who won and who lost, but confirmed that the deceased was ‘very happy’ after the game. Counsel for the defendant then asked ‘[s]o North Melbourne must have won it?’, and the plaintiff responded ‘[w]ell whatever team it was he would have been happy either way.’ The plaintiff was unable to indicate the year of the grand final, but confirmed that it was not the grand final held in 1996. In re-examination, the plaintiff agreed that she would not have understood the difference between a first and reserve football grand final.

In re-examination, the plaintiff reiterated that the activities and outings with the deceased occurred throughout the whole relationship.

Financial and Emotional Support by the Deceased

In her first affidavit, the plaintiff states that she and the deceased did not share finances but that the deceased provided assistance to her as follows:

(a) The deceased would bring the plaintiff boxes of vegetables over their 19 year relationship.

(b) The deceased would pay for evenings out with the plaintiff and bring wine when joining the plaintiff for dinner at her home.

(c) The deceased bought her a second hand car in 1992 and replaced it with another second hand car when the first one broke down. The plaintiff does not recall paying registration for the cars and believes the deceased did this.

(d) In the second year after they met, the deceased assisted the plaintiff with the payment of $5 000 in arrears of the mortgage due on her home, which sum was repaid by her when her home was sold in 1996. Prior to the plaintiff’s home being sold, the deceased paid for paint and materials, painted her home and fixed up holes in the wall.

(e) When the plaintiff moved to Footscray (Maidstone) in late 1998, the deceased paid the bond of about $1800 and the rent due in advance because the plaintiff was in a difficult financial position. The plaintiff later repaid those sums to the deceased.

The plaintiff also deposed in her first affidavit that the deceased gave her gifts as follows:

(a) On the plaintiff’s birthdays, the deceased ‘usually gave me money — $50–$100. He wasn’t so much of a gift type person’.

(b) The deceased bought her two gold rings, one for a Christmas and another for her 46^th birthday in 1993. In cross-examination, the plaintiff confirmed that both rings were bought in 1993.

(c) About a year before the deceased died, the deceased gave the plaintiff some costume jewellery, as well as a pearl type necklace.

(d) When the plaintiff was ironing to make money, the deceased bought her an ironing cover and two irons.

In cross-examination, the plaintiff conceded that the cars were only lent to her by the deceased and agreed that the cars were not registered in her name. She also guessed that the second car was lent to her in 1992 or 1993. The plaintiff agreed that the above were the gifts that the deceased gave the plaintiff over the 19 year period.

The plaintiff’s evidence in her first affidavit was that she bought clothing, aftershave and underwear for the deceased over the years, but that ‘he never wanted anything else’. Otherwise, the plaintiff supported the deceased by washing, drying and ironing his work clothes. And, as the deceased got older, the plaintiff would wash the deceased in the shower and dry him.

As to the emotional aspect of the relationship, the plaintiff’s evidence in her first affidavit is that she and the deceased provided each other with ongoing emotional support. Her examples are as follows:

(a) In 1992, at the time of her mother’s death, the deceased travelled with the plaintiff to Tasmania for the funeral and met her family in Tasmania.

(b) After the death of her daughter in 1996, the deceased identified the body for the plaintiff, attended the funeral and interacted with her extended family.

(c) When the deceased’s wife died in 2000, the plaintiff offered sympathetic support to the deceased.

Family and Friends

In relation to family, in her first affidavit, the plaintiff gave evidence that, to her family, she presented the deceased as her boyfriend. The plaintiff introduced the deceased to her four children at separate times, although she cannot recall how this happened, and the deceased was polite with them. In June 1992, when the plaintiff’s mother died, the deceased met her extended family. The plaintiff introduced him as her boyfriend. The plaintiff stated that she also introduced the deceased as her boyfriend upon his meeting her family members after her daughter died in 1996. Finally, the plaintiff deposed that the deceased ‘kept Joanne [the deceased’s daughter and the defendant] at a distance for the first few years we were together’. The plaintiff states that the defendant ‘has known for many years that I have been part of her father’s life’ and that the defendant ‘was always pleasant and nice to me’. She refers to a meeting in person with the defendant after she returned from Tasmania in 2006, on the deceased’s farm in Bulla.

Otherwise, the plaintiff states in her first affidavit that she and the deceased attended dancing venues as a couple, although the deceased preferred not to interact with the plaintiff’s friends. She deposed that ‘[t]he friends I had when I first met Joe slowly dwindled away … I didn’t have any close friends or make any new friends while I was with Joe’. The plaintiff and deceased also ‘got a mini bus with some friends and went to Echuca’. The plaintiff gave no evidence as to mutual, long-term friends between her and the deceased.

In cross-examination, the plaintiff agreed that the deceased never presented her as his partner to others, but stated that he did present her as a girlfriend. Counsel for the defendant put to the plaintiff that she never met any of the deceased’s friends. In reply, the plaintiff stated that she met two or three men at the deceased’s farm. She referred to men named ‘Harry’ and ‘Sheepie’, but noted that she could not remember many of names of the deceased’s friends. The plaintiff also stated that the trip to Echuca referred to in her first affidavit was taken ‘in the early stages’ of the relationship, the friends were ‘four or six other people’, and that ‘I don’t even know who they are now, they were just acquaintances. We all used to go to the dance [sic] and we all just went on a random time out up there’.

The plaintiff said that she lost her friends due to her relationship with the deceased. When asked by counsel for the defendant why she did not spend time with friends on nights that she did not spend with the deceased, the plaintiff replied, ‘I had the household to run. I had children at home. I used to exercise and go to the gym … I didn’t really have much time because I used to go out with them on evenings before I met Joe’. The plaintiff also added that, when she went to dances with the deceased, ‘Joe would always want me to not have [my friends] round, just us together, and I allowed that to happen’.

Relationship Difficulties
Break-up in 1994

The plaintiff first gave evidence in relation to the 1994 break in her relationship with the deceased in her third affidavit, stating ‘I recall that in 1994 Joe and I had a break for about four weeks because we were having some disagreements about his controlling attitude. When we resumed our routine however, it was as good as ever’. The plaintiff provided this evidence in reply to Mrs Critchley’s first affidavit, in which Mrs Critchley deposed that, in or about 1994, the deceased had informed her that ‘he had been seeing [the plaintiff] for a couple of years prior to breaking up with her. He said they always argued’.

Counsel for the defendant cross-examined the plaintiff as to the reasons for, and the length of, the 1994 break. The plaintiff disagreed that by 1994 her relationship with the deceased was not travelling so well and the she was arguing all the time with the deceased. She agreed, however, that problems arose in the weeks of the break-up and that problems occurred because the plaintiff felt that the deceased was dominating and controlling. The plaintiff initially stated that it was a single argument that led to the break-up. She then agreed that the deceased had been dominant for some time, that she was unhappy about his dominance, and that it was a source of friction between the plaintiff and the deceased over some months leading up to the break-up. The plaintiff then gave evidence that the ‘arguments were starting’ as a result of the deceased’s telling the plaintiff what to eat, what to wear and wanting her to lose weight. According to the plaintiff, the deceased was always domineering, ‘but he had a lovely, caring way about it, then I started rebelling as time went on’. This evidence is in contrast with the plaintiff’s first affidavit, wherein she deposed:

Joe would always comment on my weight and would notice if I put on a kilo. He would tell me straight away that I had to lose a kilo. He wouldn’t let me eat any sweets and would control what went on my plate if we went to a buffet restaurant. I didn’t mind at all because I wanted to lose weight to look good for him.

The plaintiff diverged from the evidence given in her third affidavit that the break-up was ‘for about 4 weeks’. At first, when questioned about the length of the break-up in cross-examination, the plaintiff stated that the break-up was for ‘three weeks’. When reminded that, in her third affidavit, she had deposed that the break-up was four weeks, the plaintiff responded that the length of the break-up was ‘between three to four weeks’. Later, the plaintiff agreed with counsel for the defendant that the break-up was ‘maybe for two months’, before revising her answer and suggesting that the break-up was ‘maybe … six weeks at the longest’.

The plaintiff agreed with counsel for the defendant that she took the break-up hard. She called the deceased twice and visited the deceased to discuss the situation. She initiated her return to the relationship.

Problems continued. In cross-examination, the plaintiff stated that the deceased initially relented in respect of his domineering attitude, but a few months later he became domineering again and that caused problems as well. Later, in 1996, the plaintiff began to put on weight again after her daughter died. When asked by counsel for the defendant whether this was an issue, the plaintiff stated ‘[h]e could see I was putting weight on and he said “you’ve got to lose some of that weight or else I’ll leave you”’.

Strain in the Relationship with the Plaintiff’s Children

In her first affidavit, the plaintiff deposed that, when her children found out that the deceased was married, ‘they were really disappointed about it’. The plaintiff’s youngest son, Jason, rebelled against the deceased. The plaintiff believes the rebellion was ‘partly because [the deceased] was married and partly because Jason resented [the deceased] coming into my life’. The plaintiff refers to an evening, although does not indicate when it was, that Jason had ‘strong words’ to the deceased, and the deceased left the house. When she moved to a flat in Woodville in 1996, Jason and his pregnant girlfriend lived with her. The plaintiff stated that she could not always be intimate with the deceased with others in the flat, but that the deceased was understanding and they went out as usual. In cross-examination, the plaintiff disagreed that the deceased’s relationship with Jason was ‘very poor’, stating ‘it wasn’t poor, it just wasn’t going very well’. She agreed that Jason did not approve of or like the deceased.

In her first affidavit, the plaintiff states that, when she moved to Footscray in 1998, she moved in with her son, Richard, who was at that time on drugs. [24] Richard lived with the plaintiff in Footscray for seven years until the plaintiff moved to Tasmania. The deceased knew that Richard was ‘on drugs’ and said to the plaintiff ‘I will continue to come but I don’t want to be near him’. As a result, ‘Richard would go into his bedroom whenever [the deceased] would come over’.
[24]In cross–examination, the plaintiff was insistent that her son, Richard Larkin, suffered from a marijuana problem rather than a drug problem: Transcript of Proceedings, Larkin v Borg (Supreme Court of Victoria, McMillan J, 2 October 2012) 92.

The plaintiff was cross-examined in respect of the relationship between the deceased and her son, Richard. The plaintiff disagreed that Richard, like Jason, did not like the deceased. She stated that ‘[h]e just didn’t like the setup, what was going on … But he was happy to see his mother happy’. The plaintiff refused to answer ‘yes’ or ‘no’ to the question, put by counsel for the defendant, whether Richard liked the deceased. She said that, when the deceased came to visit her, Richard would say ‘hello’ and then go outside. He would not stay in the room with the deceased for any extended time. As outlined above, the plaintiff conceded there were a lot of nights cancelled by her during the time she lived in Footscray with Richard, although she maintained that the tension between the deceased and Richard was not a cause of those absences.

Counsel for the defendant asked the plaintiff whether she was aware that, after the deceased’s wife had died in or around March 2000, her son Richard telephoned the defendant and told her that she should get the deceased to stay away from the plaintiff. The plaintiff answered that this ‘would have happened’ upon Richard’s learning that the deceased was married, ‘in the very early stages’.[25] Mr Larkin’s evidence was that he made the call when he was about 20 years old, which would mean the call was made in 1991–92. The defendant’s evidence was that the call was made to her shortly before her mother died in March 2000 and this was the first time she became aware that the deceased was having an affair but she did not become aware of who the plaintiff was until shortly after her mother died.[26]
[25]It is not clear from the evidence when Richard Larkin found out that the deceased was married, although the plaintiff’s evidence is that she was told this by the deceased at the beginning of the relationship. See the above paragraph [32].
[26]See below paragraph [115].

Difficulties during and after the Trip to Tasmania

The plaintiff’s evidence in her first affidavit is as follows.

(a) In January 2005, the plaintiff decided to take a trip to Tasmania. She described herself at this time as being overwhelmed by her personal circumstances, being the relationship between Richard and the deceased, her desire for Richard to ‘move on’ and the deceased’s grieving for his wife and deteriorating health.

(b) Once the plaintiff arrived in Tasmania, she decided that she would stay and did so for 12 months. She spoke on the telephone occasionally with the deceased ‘as if I hadn’t left’. The deceased would say during these conversations ‘[w]hat can I do Liz? You’re there. I am here. I can’t leave here but you can come here, I’ve got too much to leave here’.

(c) On her return from Tasmania, the plaintiff telephoned the deceased and informed him that she had returned. He was surprised. The deceased told the plaintiff that he had met someone else ‘but he wasn’t involved with her and she was just a friend’. The deceased still wanted to see the plaintiff and they immediately resumed overnight stays and an intimate relationship. The plaintiff stated ‘I had no reason to think that his love and affection for me had changed while I was away. It was as if I had never left’.

In her second affidavit, the plaintiff deposed:

I had no reason to suspect prior to my returning from Tasmania, that there was ever anyone else involved in his life apart from the woman I thought to be his wife. The Defendant’s Affidavit also suggests that there was more to the relationship with Margaret than what Joe disclosed to me after I returned to Melbourne. I had no idea.

In cross-examination, the plaintiff agreed that the deceased did not discourage her from moving to Tasmania. When asked whether the deceased was still grieving for his wife when the plaintiff went to Tasmania, the plaintiff said ‘I don’t think so’. When taken to this statement in her first affidavit, she then agreed it was true. She disagreed with counsel for the defendant that her relationship with the deceased was not going particularly well. However, she did agree that the deceased was still domineering and that there was friction between them. And she agreed that it was principally because of the friction between her and the deceased that she needed space.

She agreed with counsel for the defendant that it was not accurate to say, as she did, in her first affidavit that her trip lasted 12 months. The plaintiff revised her evidence, stating that her time in Tasmania was ’more like 16 months’, being from January 2005 until April or May 2006. She also agreed that it was not correct to say that she did not see Joe while residing in Tasmania. She came back to Melbourne for a break to see her children for a week or two, probably two months before moving back, and she saw the deceased during this holiday.

Counsel for the defendant asked the plaintiff whether it was correct to say that she and the deceased spoke on the telephone as if the plaintiff hadn’t left. The plaintiff agreed that she instigated the telephone calls, but stated that ‘[h]e talked to me as though I’d never left, he just talked to me casual’. The plaintiff stated that the only problem that she had with the deceased during that time was ‘when I wrote the letters’, because of what happened in ‘one conversation’. She did state, however, that she was ‘annoyed because he wouldn’t ring me’.

The plaintiff accepted that, during one telephone conversation, the deceased ‘said he’d met someone else’. She disagreed with counsel for the defendant that the deceased told her they had broken up, and instead gave evidence that ‘we were going to be friends but he didn’t say we were broken up, he said he’d met someone else’. She denied that the deceased did not want her to come back, but agreed that she was not happy about the other woman. Counsel for the defendant asked the plaintiff why she did not mention her unhappiness in her affidavits, to which the plaintiff responded ‘there’s letters in my affidavit to say I wasn’t happy’. The plaintiff was corrected and agreed that the letters were exhibited to the defendant’s affidavit. The plaintiff said that she did not refer to the letters in her affidavit because she had forgotten about them, although she remembered the conversation about the ‘other woman’. Counsel for the defendant put to the plaintiff that she had deliberately left out the reference to the deceased telling her he had met another woman, and the plaintiff responded ‘But that didn’t make any difference to me because I was coming back to Melbourne anyway, and he said we could still remain friends and he still wanted to see me’.

Counsel for the defendant then took the plaintiff to the four letters that she wrote to the deceased while she was in Tasmania. In her first letter[27] the plaintiff writes that she is ‘enjoying her holiday’ and ‘I would love to live here’. This letter, therefore, appears to be written at a time when the plaintiff went to Tasmania in early 2005 for her holiday. In the letter, the plaintiff writes, ‘[I] would love you to come down for a weekend’ and that ’[I] am waiting for your call’. A weekend trip did not eventuate.
[27]A typed version of the first letter is marked Exhibit D2. The original handwritten letter is Exhibit JB-1 to the Affidavit of Joanne Vendra Borg sworn 28 March 2011.

The content of the second letter[28] indicates that it was written sometime before or during November 2005, after the plaintiff had decided to live in Tasmania. In the letter, the plaintiff refers to her trip to Melbourne and writes that it was ‘5 weeks since I came back from Melbourne and I haven’t had one call from you’. She describes herself and the deceased as ‘good friends’. The plaintiff made it clear in the letter that she was upset with the deceased for not calling her. In cross-examination, the plaintiff agreed that she was a bit cross with the deceased.
[28]A typed version of the second letter is marked Exhibit D2. The original handwritten letter is Exhibit JB-2 to the Affidavit of Joanne Vendra Borg sworn 28 March 2011.

The third letter[29] refers to a conversation with the deceased the night before when he told the plaintiff that he had met another lady. In the letter, the plaintiff berated the deceased, saying, amongst other things, ’you certainly know how to find an easy way out’; ’you say you are my friend rubbish how can you if you choose a lady over me whom you have only first met [sic]’; ’you have not once rang [sic] me on your own accord’; ‘you didn’t take long to find another lady grazing in the pasture’; ‘I am in disbelief that you say we can stay friends, but how can we, you have shut the door on me’ and ’[s]o now I have realised I just want to be able to have some occasional time … your ”supposedly my friend” [sic]’. The plaintiff agreed in cross-examination that this contradicted her affidavit evidence that she did not learn of the ‘other woman’ until she returned to Melbourne.
[29]A typed version of the third letter is marked Exhibit D2. The original handwritten letter is Exhibit JB-3 to the Affidavit of Joanne Vendra Borg sworn 28 March 2011.

The fourth letter[30] was written on 2 March 2006.[31] In this letter, the plaintiff writes ’I guess it’s always going to be me who does all the keep [sic] in touch’. The letter refers to the plaintiff moving from her flat as the owner wanted the property. She writes that she planned to stay with her family until she decided what to do and that she would be coming to Melbourne at Easter time.
[30]A typed version of the fourth letter is marked Exhibit D2. The original handwritten letter is Exhibit JB-4 to the Affidavit of Joanne Vendra Borg sworn 28 March 2011.
[31]In the letter the plaintiff writes that it is her deceased daughter’s birthday, meaning that the letter was written on 2 March 2006.

Counsel for the defendant then asked the plaintiff, ‘you realised, didn’t you, that he was having an affair with the other woman’, to which the plaintiff responded ‘[n]o, I didn’t’, although the deceased had informed her that he had met somebody. Counsel for the defendant then put to the plaintiff, ‘whatever he said, you knew or believed that he was having a relationship, an affair’, to which the plaintiff replied ‘no’. The plaintiff said that she thought the relationship was platonic. She maintained that, in accordance with her affidavit evidence, she had no reason to think that the deceased’s love and affection had changed, ‘because when I saw him it felt that way’.

In re-examination, the plaintiff stated that in 2006, when she returned from Tasmania, she asked the deceased about the ‘other woman’ on an outing at Yarraville Club. The deceased told the plaintiff that the other woman was ‘nice’ and that he enjoyed her company, but he insisted that he was not intimate with her. The plaintiff believed the deceased as he said he was happy to go back to seeing her regularly on Thursday and Saturday nights.

Relationship following the Decline in the Deceased’s Health

The deceased went to hospital in late 2009. By way of affidavit, the plaintiff gave the following evidence:

(a) Her intimate relationship with the deceased continued until about three months before he went into hospital.[32]
[32]See the Further Affidavit in reply of Elizabeth Ann Larkin sworn 20 March 2012 (‘third affidavit’).

(b) When the deceased was admitted to hospital, he requested that the plaintiff telephone prior to visiting, but ‘I couldn’t wait to get his permission, so I would just go when I wanted to’.[33] The deceased was initially in a hospital ward before moving into intensive care and the plaintiff visited him in that ward during the day.[34]
[33]See the Affidavit of Elizabeth Anne Larkin sworn 21 December 2010 (‘first affidavit’).
[34]See the Affidavit in reply of Elizabeth Anne Larkin sworn 12 May 2011 (‘second affidavit’).

(c) The plaintiff visited the deceased in hospital on St Valentine’s day in 2010. On that occasion, she said that she met Ms Martin for the first time.[35] She watched while Ms Martin helped change the deceased’s clothes and she was horrified to watch another woman put what she described as underwear on the deceased. [36] After Ms Martin left, the plaintiff said that the deceased spoke very crudely and rudely to her and she was upset.[37] The deceased also told her that she must ring before she came in to see him.[38]

(d) Just before Christmas 2009, the deceased came temporarily out of hospital and the defendant drove the deceased to the plaintiff’s place to see her.[39] The defendant’s version of this visit differs from that of the plaintiff.[40] The defendant also visited the plaintiff on her own when the deceased was very sick and dying, and the plaintiff tried to comfort her.[41]

(e) On another occasion, the plaintiff visited the deceased and the defendant was there. The defendant took the plaintiff into where the deceased was in intensive care. The deceased told the plaintiff that she should not ‘be here until tomorrow’. The next day the deceased died. The plaintiff found this out when she rang the hospital.

[35] Ms Martin’s evidence is that she met the plaintiff twice at the hospital. See below paragraphs [129]–[130].

[36]See the first affidavit.

[37]Ibid.

[38]Ibid.

[39]Ibid.

[40]See below paragraph [118].

[41]See the first affidavit.

In cross-examination, the plaintiff agreed that she was not on the deceased’s visiting list for the intensive care ward. She then stated that she could visit the deceased in the hospital ward but that she needed permission to visit him in intensive care. Counsel for the defendant put to the plaintiff that, on one occasion when she telephoned the deceased in hospital, he told the plaintiff ‘I told you never to call me again. I want nothing to do with you, don’t call me again’.[42] The plaintiff’s answer was that the deceased only told her ‘don’t call me, ring me at the right time’, and that he ‘just kept hanging up’.
[42]See the Affidavit of Margaret Cecilia Critchley sworn 14 May 2011.

In re-examination, the plaintiff stated that in the three months prior to the deceased’s going to hospital, the deceased would pop round to visit the plaintiff during the day. She also stated that the routine of seeing the deceased on Thursday and Sunday nights continued.

Events following the Death of the Deceased

In her first affidavit, the plaintiff gave evidence as to events following the death of the deceased. She told the defendant that she would not go to the cemetery or the wake because Ms Martin and Mrs Critchley would be there. She stated that the defendant asked her whether she would like to go with her to choose a headstone for the deceased’s grave. That did not occur because the defendant’s invitation was extended on a day that was both the anniversary of the death of the plaintiff’s daughter and her grandson’s birthday. The plaintiff also stated that the defendant told her that she had been to the grave and ‘jumped on it and yelled at her father for causing hurt to other women, including her mother and me’. The defendant disputes that she said anything like this to the plaintiff.[43]
[43]See below paragraph [119].

After the death of the deceased, the plaintiff rang the defendant and asked her whether the deceased had left her anything in his will. She said that she asked this because on one occasion when she was talking to the deceased on the telephone, he told her he might buy her a car. She said that, because of this conversation, she thought the deceased may have left her something in his will. On this issue, the evidence of the defendant differs from that of the plaintiff.[44]
[44]See below paragraph [120]–[121].

The Plaintiff’s Current Financial Circumstances

In terms of her financial circumstances, the plaintiff’s evidence is that she has no assets and is in receipt of a disability pension of approximately $700 per fortnight. She pays rent of $80 per week and has sundry small debts. She needs orthotics, glasses and new dentures but she is unable to pay for them. She wants to live in Tasmania to be near her sisters and brother.

The Plaintiff’s Son

Mr Richard John Larkin was born in 1970 and is the eldest son of the plaintiff. He gave the following evidence by way of affidavit sworn on 2 August 2012:

(a) He describes his mother as loving to dance and, after his parents split up, his mother made some friends by going out to rock and roll dances at the local club. He was approximately 21 years of age when the plaintiff met the deceased.

(b) Mr Larkin lived at three houses with the plaintiff for long periods — at Hoppers Crossing for 10 years, in Altona and then in Footscray (Maidstone). He states that the ‘routine for mum and Joe was that Joe would stay at our house on a Wednesday, Thursday and Saturday evening. Mum’s routine with Joe was always the same, even when she came back from Tasmania’.

(c) Mr Larkin described the deceased as being kind to the plaintiff, bringing over fruit and vegetables, old televisions and furniture and helping her with a car. He stated that he often heard the deceased discussing personal and business issues with his mother.

(d) The deceased would come over to his mother’s place and go straight into her bedroom. If they were going out, they would leave straight away and, if they were staying at home, they would stay in the bedroom all night where they had a television set up. The deceased would always be gone by the time he woke up in the morning, or if Mr Larkin stayed out overnight, the deceased would be gone by the time he got home. He described the deceased as working around the schedules of the plaintiff’s children so that they would not cross paths. Sometimes if Mr Larkin knew that the deceased was staying over, he would stay at a friend’s house, as did his brother and sister.

(e) Mr Larkin did not have a strong relationship with the deceased. He said ‘hi’ and ‘goodbye’, with not much more in terms of conversation. He said that he became aware that the deceased was a married man much later, but did not say when, and he had issues with this in respect of his mother. He was not keen on the plaintiff’s relationship with the deceased and he tried his best to stay apart from him.

(f) When his sister died in 1996, the deceased visited the plaintiff and gave her support. He said that the deceased was respectful at the funeral. The deceased stood in the background, presumably during the service. Mr Larkin saw the deceased walk up to his sister’s grave when everyone else had walked away.

(g) In 1996, after the death of her daughter, the plaintiff sold the family home at Hoppers Crossing. For the next couple of years, the plaintiff rented units around Hoppers Crossing and remained in a relationship with the deceased. When the plaintiff moved to Altona, Mr Larkin states that ‘[w]e all (mum, Joe and I) stayed on for two years at Altona’, with Mr Larkin living in a caravan in the backyard of the house the plaintiff was renting. Mr Larkin states that, when his mother decided to live closer to Highpoint, ‘[s]he found a house to rent at Maidstone and we all moved there’.

Mr Larkin was cross-examined about a telephone call that he made to the defendant. Mr Larkin states that he made a call to the defendant when he was about 20 years of age and he still lived at Hoppers Crossing. If he made the call when he was about 20 years old, that would place the call at about the beginning of the plaintiff’s relationship with the deceased in 1991–92. During this telephone conversation, he told the defendant that her father was seeing or mixing with prostitutes. He said that he did not identify himself or that he may have said he was Richard but he thought the defendant knew who he was. He said that he did not believe what he said to the defendant but he was trying to ‘spook’ the deceased away from his family. He thought that by the call he implied to the defendant to ’keep your father away from [the plaintiff] and hopefully he wouldn’t come back to her’. He made the call because he knew the deceased was married. He said that the telephone call was a silly thing he did as a kid and he was being protective of the plaintiff. In contrast, in her evidence, the defendant places the call from Mr Larkin sometime shortly before her mother died in March 2000. If the defendant is correct and Mr Larkin made the call in early 2000, he was aged approximately 30 years and was no longer ‘a kid’.

Mr Larkin was also cross-examined in respect of his evidence as to living with the plaintiff and the regularity of the nights the plaintiff spent with the deceased.

(a) In relation to Hoppers Crossing, Mr Larkin confirmed that the routine was that the deceased would stay on Wednesday, Thursday and Saturday nights consistently. Counsel for the defendant asked Mr Larkin whether he recalls any breaks when the deceased did not visit, to which Mr Larkin replied ‘[n]ot at all’. When asked if he was confident about that answer, Mr Larkin stated ‘[w]ell I am because we were all quite a young family … we were all under 20s when … Mum met Joe, so it was part of like our family. … So we knew what days he was coming’. Mr Larkin agreed that his evidence was that, in the four years at Hoppers Crossing, he was confident that there was no substantial break, meaning ‘more than say a night or two or a week or something’. He states that he slept at this house 90 per cent of the time, and agreed that he might stay with friends and girlfriends from time to time.

(b) In relation to Altona, Mr Larkin stated that he is now aware that he lived with his mother in Altona for one year, as opposed to two years as stated in his affidavit. He disagreed with the plaintiff’s evidence that she lived alone in Altona. He stated that he was at the house for a majority of the time, being about 70 to 80 per cent of the time. In contrast, the plaintiff’s evidence did not refer to any of her children living with her when she rented in Altona.[45]

(c) In relation to Footscray (Maidstone), Mr Larkin described this home as a two bedroom house and not a flat. He stated that he would make himself discrete by staying in a bungalow when the deceased was staying over. Otherwise Mr Larkin slept in the house. He stayed at the house every night over the seven years that he lived there, as during this time he had a job and that was his life. While living at Footscray, he became aware that the deceased’s wife had cancer and was dying. Mr Larkin did not agree that the plaintiff was stressed while she lived at Footscray, but he did state that it was difficult for her to have him staying with her. Mr Larkin disagreed that he took drugs during this period in his life and confirmed that, in his view, the plaintiff must be mistaken in her evidence that he was on drugs at this time. Rather he stated that he was taking drugs for a couple of years at Hoppers Crossing and at Altona. Contrary to the plaintiff’s evidence in cross-examination, Mr Larkin stated that the deceased visited the plaintiff at Footscray ‘like clockwork’, just as the deceased did at Hoppers Crossing, and on the same nights, being Wednesdays, Thursdays and Saturdays. When counsel for the defendant put to Mr Larkin the plaintiff’s evidence that ‘cancellations increased during that period’, Mr Larkin responded ‘not from my — not from the patterns I see … from my view … it didn’t really decrease. It was a pretty regular sort of thing, yeah, but I mean I’m not saying she didn’t cancel a night or something like that’.

On both occasions that he saw the woman she was at the farm prior to Mr Wetmor arriving and she was inside the farmhouse and he did not initially realise she was there. The deceased did not introduce the woman to Mr Wetmor and nor did he mention anything about the woman. Mr Wetmor commented on both occasions to the deceased in a jovial manner words to the effect ‘is that your girl?’ and the deceased responded by saying ‘she’s just a girlfriend and not much else’.

Approximately two years prior to his death, the deceased told Mr Wetmor that he had purchased several plots at the Bulla cemetery and that he wanted to transfer his late wife’s remains from the Fawkner cemetery to the Bulla cemetery. He said the other plots were for himself, his daughter, his daughter’s husband and his grandson. The deceased did not mention anything about buying a plot for anybody else.

The Deceased’s Friend, Mr Athanasakopoulos

Mr Harry Athanasakopoulos was a friend of the deceased and lived in a bungalow approximately two minutes away from the deceased’s residence. He now lives in a caravan on the defendant’s property and pays weekly rent to her. Mr Athanasakopoulos gave evidence that the deceased did not stay out all night on Saturday nights on many occasions. He could not remember but estimated that the deceased may have stayed away all night approximately once a month.

The Reliability of the Evidence of the Plaintiff and the Plaintiff’s Son

In this proceeding, the evidence concerning the nature and quality of the relationship between the plaintiff and the deceased is critical to the success or otherwise of the plaintiff’s case. As stated, the plaintiff gave evidence, as did her son, Richard Larkin. An affidavit by the plaintiff’s sister was also relied on by the plaintiff.

As well as her own evidence, the defendant relied on the evidence of Mrs Critchley, Mrs Martin, Ms Booth, Mr Vella, Mr Wetmor and Mr Athanasakopoulos. Only Mrs Critchley and Mr Athanasakopoulos were cross-examined by the plaintiff.

The Plaintiff

In assessing the evidence of the plaintiff, I found many instances of inconsistencies, a tendency by the plaintiff to be reactive, to mislead, to guess and to overstate her case. Her evidence in cross-examination differed in many significant respects from the evidence contained in her affidavits. The plaintiff maintained that the inaccuracies in her first affidavit were because it was difficult for her to give that evidence so soon after the death of the deceased.[47] Nevertheless, these inaccuracies were not corrected in her second or third affidavit, which were sworn on 12 May 2011 and 20 March 2012. In cross-examination, the plaintiff avoided answering questions at times when it was clear that those answers would not assist her in her claim.
[47]Note: The deceased died on 6 March 2010. The plaintiff’s first affidavit was sworn on 2 December 2010.

The plaintiff’s evidence as to the regularity of her designated nights with the deceased and her guesses as to the number of cancelled nights per year is a further instance of the unreliability of the plaintiff’s evidence. The plaintiff’s evidence in her first affidavit makes no reference at all to broken nights with the deceased, even though this affidavit touches upon those times in her life where there were many broken nights, including after the death of her daughter and when she was living with her son Jason. Indeed, the plaintiff goes so far as to state in this affidavit that the deceased continued to stay with her on their regular nights during these difficult periods in her life. In her second affidavit she concedes that there were ‘a very few’ Saturday evenings where she did not see the deceased in response to evidence that the deceased went to greyhound racing on Saturday evenings. Her third affidavit expands upon occasions when she did not see the deceased on their regular nights, but she maintains that ‘over 19 years we would have only had an average of two cancelled nights a year’. This characterisation of the regularity of the plaintiff’s nights with the deceased is in stark contrast to her evidence in cross-examination, wherein she accepted that there were a lot of broken nights with the deceased after the death of her daughter and when she moved to Footscray in 1998. The plaintiff also changed her estimate as to the amount of cancelled nights per year in cross-examination. Her explanation for this error, being that she had simply ‘made a mistake’ when she estimated in her third affidavit that there were on average two cancelled nights a year, is unconvincing. This estimate was given in response to the affidavit evidence of Mrs Critchley that she spent weekends with the deceased, and it was provided after a detailed explanation of nights that she did not see the deceased over their 19 year relationship.

At times the plaintiff provided evidence in a reactive manner. An example is her evidence as to the deceased attending a festival with Mrs Critchley on Saturday, 22 August 2009. When counsel for the defendant put this evidence to the plaintiff, she was quick to state that she cancelled that Saturday night with the deceased, even though there was no specific reason for her to recollect that the cancellation occurred on this particular date. Only when pressed by counsel for the defendant to confirm that this was her evidence under oath, did the plaintiff relent and refused to confirm that she could recall cancelling a night with the deceased on 22 August 2009.

On other occasions, I considered the plaintiff’s evidence was misleading. An example is her evidence as stated in her first affidavit that ‘Joe and I enjoyed many outings over the 19 years of our relationship’, and proceeded to list particular outings and exhibited photographs of various occasions. The plaintiff acknowledged in this affidavit a change in the outings after the death of the deceased’s wife, stating that ‘Joe and I still went out a lot, but we didn’t always agree what we wanted to do’. Whereas, in cross-examination, the plaintiff accepted that the vast majority of outings listed in her affidavit occurred between 1991 and 1994. While she maintained that there was many other occasions other than those listed, little evidence was given as to other outings. In my view, the plaintiff’s affidavit evidence is misleading, in that she characterises the outings listed as occurring over 19 years. The plaintiff also accepted in cross-examination that she had little in common with the deceased and that she and the deceased did not always agree what to do by the time that she was living in Footscray in late 1998. This is two years prior to the death of the deceased’s wife, and again differs from her affidavit evidence, as outlined above.

The plaintiff also had a tendency to guess certain facts. An example is her evidence as to a grand final that she says she attended with the deceased. When first questioned by counsel for the defendant about the grand final, the plaintiff stated that she and the deceased attended the grand final in the first or second year of their relationship, that North Melbourne played in the grand final and that this team won. She also stated that the deceased was ‘very happy’. When informed that North Melbourne did not play in any grand final between 1990 and 1996, the plaintiff simply stated ‘I must have made a mistake then’. In my view, it is evident that the plaintiff was simply guessing the time period and the outcome of the grand final. Given the plaintiff’s evidence that the deceased enjoyed football, I find her suggestion unconvincing that the deceased would have been happy even if his team, North Melbourne, lost the grand final.

An example of the plaintiff overstating her evidence is the statement in her first affidavit that the deceased bought her a car in 1992, then replaced this car when it broke down. In cross-examination, the plaintiff conceded that the cars were only lent to her by the deceased. She also accepted that the cars were not registered in her name.

Further, the plaintiff was not forthright and open about difficulties in her relationship with the deceased and her evidence contained inconsistencies or was misleading. It was clear from the manner in which the plaintiff gave evidence that she was attempting to put a gloss on those difficulties. For instance:

(a) The plaintiff did not mention a break in her relationship with the deceased in 1994 until her third affidavit, and did so in reply to Mrs Critchley’s evidence in her affidavit as to the break-up. At different points in cross-examination, the plaintiff gave evidence that the break-up lasted three weeks, about four weeks, between four to six weeks and up to two months. The plaintiff also stated that she could ‘not remember’ the length of the break-up. My impression of the plaintiff altering her evidence as to the length of the break-up in 1994, is that the plaintiff did so in order to explain away Mrs Critchley’s evidence as to particular nights that she spent with the deceased in 1994. The variance in her evidence again suggests that the plaintiff was guessing.

(b) At first in cross-examination, the plaintiff maintained that one argument led to the 1994 break-up with the deceased. After being cross-examined as to the reasons for the break-up, the plaintiff then changed her evidence, stating that the deceased’s dominance and controlling attitude had been a source of friction between them for some time. In cross-examination, the plaintiff gave as an example of the deceased’s controlling behaviour, his habit of telling the plaintiff what to eat and attempting to control her weight. Yet, in her first affidavit, the plaintiff stated that she ‘didn’t mind [this] at all because I wanted to lose weight to look good for him’. Furthermore, the plaintiff stated in her affidavit that when she and the deceased returned to their relationship, ‘it was as good as ever’. Yet, in cross-examination, the plaintiff revised her evidence, and accepted that the deceased’s domineering attitude did cause problems again, and that at one point the deceased threatened to leave her after her weight increased following the death of her daughter.

(c) The plaintiff’s affidavit evidence as to the reason for her trip to Tasmania and her relationship with the deceased at this point in time is also inconsistent and misleading. In her first affidavit, the plaintiff does not mention problems in her relationship with the deceased as a motivation for travelling to Tasmania. She describes talking to the deceased on the telephone ‘as if I hadn’t left’. She states that she lived in Tasmania for 12 months. Her evidence in this affidavit is that she only learned that the deceased had another woman in his life upon her return to Melbourne. She also states that she and the deceased immediately resumed an intimate relationship upon her return, and that she had no reason to think that the deceased’s love and affection for her had changed. In contrast, in cross-examination, the plaintiff accepted that the principle reason why she needed space was that there was friction between her and the deceased due to his domineering behaviour. She accepted that she initiated all telephone conversations with the deceased and that she was ‘a bit cross’ about this. She agreed that her stay in Tasmania was more like 16 months. She accepted that her third letter to the deceased written by her makes it clear that she knew about the ‘other woman’ while she was living in Tasmania. She also accepted that she was not happy about the other woman. The plaintiff avoided answering the proposition put by the defendant that she deliberately left out of her affidavit the telephone conversation about the other woman which took place while she was still in Tasmania. Her explanation for this omission was that ‘it didn’t make any difference to me because I was coming back to Melbourne anyway, and he said we could still remain friends and he still wanted to see me’.

(d) Further, the plaintiff’s oral evidence was that, when the deceased told her over the telephone about the ‘other woman’, he also told her that his relationship with this woman was platonic and that she believed him. Yet, when the contents of the third letter are read, the plaintiff has expressed herself with vigour and anger about that relationship, and this contradicts the statement by the plaintiff that she believed, at that time, the deceased simply had a platonic female friend. Given this, and the other evidence in relation to the trip to Tasmania adduced on cross-examination, I consider the plaintiff’s statement in her first affidavit, being that she had no reason to think that the deceased’s love and affection for her had changed while she was away, is misleading.

(e) Finally, the plaintiff gave evidence in re-examination that she lived in Werribee for two months upon returning from Tasmania in April or May 2006 and that during this time she did not see the deceased on their regular evenings. This means that the plaintiff’s affidavit evidence that she ‘immediately’ resumed overnight stays and an intimate relationship with the deceased and that ‘[i]t was as if I had never left’ is inaccurate.

The Plaintiff’s Son, Mr Larkin

Mr Larkin’s evidence was of particular importance to the plaintiff’s case, because he had an opportunity to observe the plaintiff in her relationship with the deceased during the lengthy periods that he lived with the plaintiff and because he was the other witness, aside from the plaintiff, to give evidence of this nature. The affidavit evidence of the plaintiff’s sister was of limited assistance in this regard.

In my view, Mr Larkin’s evidence as to the regularity with which the deceased visited the plaintiff is unreliable and conflicts in some significant respects with the plaintiff’s evidence on cross-examination.

Mr Larkin states in his affidavit that he gave instructions to his solicitor with respect to the preparation of his affidavit, prior to reading the plaintiff’s affidavits. His affidavit evidence corroborated the affidavit evidence of his mother in relation to the regularity of the nights that the deceased spent with her, except insofar as:

(a) The plaintiff states in her affidavit that she lived alone in Altona, whereas Mr Larkin states that he lived with her at this address; and

(b) The plaintiff in her affidavit states that she no longer spent Wednesdays with the deceased upon her return from Tasmania in 2006.

Both differences in the affidavit evidence are significant.

The former difference is significant as the plaintiff’s evidence is that the relationship with the deceased blossomed in Altona as she was living on her own. In cross-examination, Mr Larkin confirmed that he lived with the plaintiff for 70 to 80 per cent of the time in Altona, and he stated that during this period he was on drugs. Given that the evidence both of the plaintiff and Mr Larkin was that the deceased and Mr Larkin were not close, and that the deceased did not approve of Mr Larkin’s drug use, it would improbable that the plaintiff’s relationship with the deceased blossomed in Altona, if indeed Mr Larkin’s evidence is accurate.

The latter difference is significant as the regularity of the nights the plaintiff spent with the deceased was a major source of contention in this case. The plaintiff’s evidence as to the regularity of nights spent with the deceased changed significantly in cross-examination. The plaintiff accepted in cross-examination that there were a lot of broken nights with the deceased while she lived in Footscray (Maidstone). In contrast, Mr Larkin stated in cross-examination that the deceased continued to visit the plaintiff ‘like clockwork’ in Footscray (Maidstone). In cross-examination, Mr Larkin also confirmed his evidence that the plaintiff and the deceased continued to see each other on Wednesday, Thursday and Saturday evenings when the plaintiff returned from Tasmania. He was unable to explain the reason for this belief, though he gave sworn evidence that this was the case. When counsel for the defendant put to him the plaintiff’s evidence that she did not spend Wednesday nights with the deceased on returning from Tasmania, Mr Larkin’s response was ‘well if she says that then, yes, that’s fine’. In my view, Mr Larkin’s inability to explain how he knew the regularity of the nights the deceased spent with the plaintiff, and his willingness to readily concede that he was mistaken, suggests that he was simply guessing that the Wednesday visits continued in 2006.

In cross-examination, Mr Larkin also stated that, as far as he was aware, there were no significant breaks in the plaintiff’s relationship with the deceased in the four years that the deceased visited the plaintiff in Hoppers Crossing. He stated that he was ‘fairly certain’ that there were no breaks as he was at the family home most of the time. This evidence is in conflict with the evidence given by the plaintiff.

Summary of the Considerations under s 91(4) of the Act

In order to determine the three stages of the plaintiff’s claim for provision from the estate of the deceased, I am required to consider the matters contained in ss 91(4)(e)–(p) of the Act. In doing so, I bear in mind that there is ‘a great need for caution in accepting proofs put forward by the plaintiff to establish the existence of the duty that she alleges’.[48] In respect of the various matters I am required to consider, I set out my findings as follows:
[48]See above paragraph [20].

(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.
(i)The plaintiff and the deceased commenced their relationship from around late 1991 early 1992. This was after the deceased had broken up with his long term girlfriend, Mrs Martin. The relationship started off positively with evenings out and dinners.
(ii)Although the relationship from the plaintiff’s point of view was exclusive, from the deceased’s point of view, he made it clear to the plaintiff that he was not committed to her, that he was married to Marjorie Borg, that they had a daughter and mutual financial interests.
(iii)The plaintiff was always aware that the deceased was married to Marjorie and knowingly took on the role of mistress.
(iv)By 1994, difficulties had emerged such that the plaintiff and the defendant broke up for some six to eight weeks. The plaintiff initiated the resumption of the relationship. In 1994, the deceased had met Mrs Critchley. The deceased formed a loving relationship with Mrs Critchley and his relationship with the plaintiff was on the wane, although the plaintiff pursued it. There was a decline in the evenings out and the regularity of the deceased’s visits to the plaintiff. The evidence of the defendant, Mrs Critchley and Mrs Martin of the contemporaneous statements made by the deceased to them demonstrates that the deceased wanted to end the relationship with the plaintiff but that the she made this difficult for him. As well, their evidence support a substantially diminished relationship between the plaintiff and the deceased from about 1994 to 1995.
(v)The difficulties that caused the breakup in 1994 continued. This tension was compounded as the two sons of the plaintiff did not like the deceased, did not approve of him, and yet they lived with the plaintiff for substantial periods of time.
(vi)The deceased continued his contact with the plaintiff, albeit irregularly, and perhaps reluctantly, with cancellations on the designated nights by both of them. He did provide support to the plaintiff on the death of the plaintiff’s daughter, Shantelle, in May 1996 as would be expected of a good friend. The plaintiff said the deceased assisted in painting her house in Hoppers Crossing before it was sold in 1996 after the death of her daughter. Such matters would be considered to be consistent with a continuing friendship between them.

(vii)There were small gifts made by the deceased to the plaintiff in the early part of the relationship, and some short term financial assistance to the plaintiff which was repaid by her.
(viii)From 1996 onwards there is little evidence of outings or common interests between the plaintiff and the defendant. By the late 1990s there is no evidence of any outings or common interests between the plaintiff and the deceased.
(ix)In 2005, the plaintiff moved to Tasmania, primarily as a result of her difficulties in her relationship with the deceased. The deceased was pleased about the plaintiff’s move, as expressed by him to the defendant and to Mrs Critchley at the time. There was limited contact with the deceased during the plaintiff’s time in Tasmania and any contact was instigated by the plaintiff.
(x)Upon the plaintiff’s return to Melbourne in mid-2006, there was no physical contact with the deceased for two months, aside from one visit by the deceased to Werribee. The deceased was not pleased when the plaintiff returned to Melbourne, as expressed by him to the defendant and to Mrs Critchley. There is little evidence of outings or common interests in this period up until the death of the deceased in March 2010.
(xi)The plaintiff and the deceased did not socialise as a couple and no friends of the plaintiff gave evidence on the quality of the relationship between the plaintiff and the defendant. The plaintiff was not included in the deceased’s day to day life with his friends or his hobbies, aside from dancing early on in the relationship, and he did not present the plaintiff as his partner to others.
(xii)There was no written evidence of the deceased’s expressing his feelings towards the plaintiff, apart from the inscription on one birthday card in the early stages of the relationship, which the plaintiff said was written by him because she asked him to do so. There was no evidence of the deceased ever suggesting to the plaintiff that their relationship was of the quality that would lead to marriage.
(xiii)The evidence of the interaction between the plaintiff and the deceased observed by Mrs Martin and Mrs Critchley at the hospital in 2010[49] supports the statements made by the deceased in the mid 1990s[50] and the mid 2000s[51] and is consistent with the deceased’s not returning the plaintiff’s affection.
[49]See above paragraphs [129]–[131] and [132](p).
[50]See above paragraph [127].
[51]See above paragraph [117].
(xiv)At no stage during the relationship did the deceased and the plaintiff share a common residence or share their finances.

(f)Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate.
(i)The deceased did not have any obligations or responsibilities to the plaintiff.
(ii)The deceased did have obligations to his daughter, the defendant, who had strong ties to the deceased not only because she was his child but also because she worked in the family business.

(g)The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject.
(i)The principal assets of the deceased’s estate are the family farm and the real estate from where the rooming house accommodation is operated.
(ii)The deceased was adamant that these assets should pass to the defendant.

(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)The financial resources, including earning capacity, of the plaintiff is limited.
(ii)The current financial needs of the defendant as the only beneficiary under the deceased’s will are not in issue.

(i)Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate.
The plaintiff does not have any particular physical or mental disability but does receive a disability pension.
(j)The age of the applicant.
The applicant was born in 1947 and is aged 65 years.
(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.
There is no contribution by the plaintiff to the building up of the estate of the deceased, to his welfare or to his family.
(l)Any benefits previously given by the deceased person to any applicant or to any beneficiary.
(i)The plaintiff received some small gifts from the deceased, mostly in the early part of the relationship.
(ii)The plaintiff received two loans from the deceased in the early part of the relationship, and both were repaid by the plaintiff within a short time.
(iii)The deceased assisted the defendant financially with the cost of rebuilding her house in 2006.

(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.
Not relevant.
(n)The liability of any other person to maintain the applicant.
Not relevant.
(o)The character and conduct of the applicant or any other person.
The plaintiff was always told by the deceased that he was married and would never leave his wife. There was never an expectation created by the deceased that he and the plaintiff would marry.
(p)Any other matter the Court considers relevant.
Nothing relevant.

Comparison of the Plaintiff’s Case with Similar Cases

The critical issue in this case is the nature of the relationship between the plaintiff and the deceased and whether that relationship gave rise to the relevant moral duty on the part of the deceased to make provision for the plaintiff. As stated,[52] two recent cases with a similar issue to this proceeding are Forsyth v Sinclair and Whitehead v State Trustees Ltd. These cases are illustrative of the particular features required of a relationship to give rise to a responsibility on the part of a deceased.
[52]See above paragraph [22].

In my view, the plaintiff’s case is readily distinguishable and is very different from both these cases, where it was found that the deceased in each case owed a duty to make provision for the maintenance and support of the relevant plaintiff.

In Forsyth v Sinclair the deceased was a bachelor. He died in July 2004. The plaintiff claimed she had a relationship with the deceased since the early 1990s. The credible evidence that swayed the trial judge was summarised by Neave JA as follows:

(a) The plaintiff had been seen by neighbours on workday mornings leaving to go to work from the deceased’s home and he was seen farewelling her;

(b) the deceased accompanied the plaintiff to Toastmaster functions and was treated as her partner by friends and acquaintances who attended the Toastmaster events;

(c) the plaintiff and the deceased attended social functions together as a couple; (d) the deceased expressed his love and affection for the plaintiff to a number of

witnesses and the plaintiff did likewise;

(e) the plaintiff visited and stayed with friends as a couple;

(f) they had an exclusive sexual relationship and told some of their friends they intended to marry;

(g) friends sent them letters and Christmas cards as a couple over a number of years;

(h) after the death of the deceased, the plaintiff received numerous condolence letters and cards from friends who knew her and the deceased as a couple.[53]

[53][2010] VSCA 147 (22 June 2010) [38].

Redlich JA agreed with Neave JA, on the basis of the trial judge’s findings that the plaintiff and the deceased had a long standing intimate and caring relationship; they had a deep affection for each other; they shared on a daily basis nearly all of the significant moments of their lives; the plaintiff gave the deceased 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 and the deceased had said that he intended to make provision for the plaintiff in the event that she survived him.[54]
[54]Ibid.

In Whitehead v State Trustees Ltd the trial judge concluded that the deceased, the plaintiff and her child were a social unit tantamount to a family.[55] However before the Court of Appeal, that conclusion was challenged and Neave JA said:

The judge found that Barry [the deceased] gave Kim [the plaintiff] emotional support while she was pregnant, that they spent considerable time together and that both Barry and Kim loved and cared for Alex [the plaintiff’s child]. Given Alex’s youth and Barry’s age and the fact that he had not had children of his own, it was not surprising that Kim was Alex’s primary carer. Kim looked after Barry when [he] was ill and until he died. Although other friends and family shared the cooking and cleaning with Kim, she performed intimate tasks such as changing his sheets when they were soiled and looking after his feet. There was evidence from Kim’s mother, brother and sister that Kim and Barry were recognised as a (somewhat unusual) couple. In these circumstances, the fact that they did not live together and were not financially dependent on each other did not preclude his Honour from drawing the inference that they considered themselves a ‘family’.

For these reasons, I consider that his Honour’s conclusions that the relationship between Barry, Kim and Alex was tantamount to a family relationship was neither ‘contrary to compelling inferences’ or ‘glaringly improbable’.[56]

[55][2011] VSC 424 (2 September 2011, as revised on 19 October 2011) [218].

[56]State Trustees Ltd v Bedford [2012] VSCA 274 (16 November 2012) [132]–[133].

Conclusions

In my view, the evidence of the relationship between the plaintiff and the deceased in this proceeding does not support a conclusion that the relationship was of the type or possessed the necessary ‘particular quality’ that gives rise to the relevant moral duty on the part of the deceased to make provision for the plaintiff.

Their relationship was not a relationship that was tantamount to a family unit. The plaintiff was either a girlfriend or a mistress of the deceased and she readily took on that role. The deceased told the plaintiff at the beginning of the relationship that he had a wife and child and that he would never leave his wife or marry the plaintiff. The deceased’s position on marriage did not alter after his wife died in 2000.

Their relationship was never an exclusive relationship with the deceased committed to the plaintiff. The deceased’s relationship with the plaintiff was carried on against the background, not only of the deceased’s relationship with his wife until March 2000, with whom he lived, but the continuing relationship with his daughter, running his business, keeping up with his friends and his social life, including his friendship with Mrs Martin and his relationship with Mrs Critchley from 1994 onwards. The deceased, with whom the defendant had a close relationship, did not tell the defendant about his relationship with the plaintiff.

During almost the entire period of the relationship, the deceased was in a much closer, more involved and an intimate relationship with Mrs Critchley. As well as that relationship being more involved, they were also involved with each others’ families. They saw a lot of each other, travelled together regularly on many trips over weekends and saw each other regularly during the week. Mrs Critchley and the deceased were recognised as a couple by family and friends. The deceased also had a close relationship with Mrs Critchley’s daughters. The deceased continued his close friendship with Mrs Martin.

The relationship of the plaintiff and the deceased was initially relatively happy but, by 1994, there were difficulties in the relationship that resulted in a break, initially said by the plaintiff to be a four-week period, then subsequently a three-to-four week, two-month or six-week period. Those difficulties were said by the plaintiff to be caused by the deceased’s domineering personality. The plaintiff agreed that the difficulties in the relationship continued thereafter.

There were many times over the length of the relationship when the plaintiff and the deceased were apart. The plaintiff’s asserted arrangement of three designated nights with the deceased before she moved to Tasmania was contradicted by the defendant’s witnesses and by her under cross-examination. There was also a break of 16 months when the plaintiff moved to Tasmania.

The deceased did offer support to the plaintiff after the death of her daughter in 1996. It was the type of support one would expect of a good friend in such circumstances. Difficulties arose as a result of the plaintiff’s grieving for her daughter that resulted in her cancelling some of the designated nights. Other difficulties in the relationship resulted from the plaintiff’s two sons living with the plaintiff for lengthy periods of time and either not liking the deceased or not approving of him and, in particular, with Richard Larkin who had drug problems for a number of years.

The difficulties in the relationship resulted in the plaintiff moving to Tasmania for 16 months with minimal contact with the deceased any contact with the deceased initiated by the plaintiff. The deceased made statements to both the defendant and to Mrs Critchley that he was pleased the plaintiff had moved to Tasmania and also that he was not pleased when the plaintiff returned to Melbourne.

For the period after 1994 until the death of the deceased, there was little evidence of the plaintiff and the deceased going out or attending social events, as had taken place in the period between when they met and up to the break in the relationship in 1994.

For the whole time that the plaintiff knew the deceased, he never told her that he loved her. The only recorded expression of the word ‘love’ is on one of the birthday cards given by the deceased to the plaintiff in the early part of the relationship.

The deceased did not include the plaintiff as part of his usual life with his friends and other interests, such as attending the greyhound racing, which he regularly attended. He did not introduce her to his friends, nor did they in any way present themselves to his friends as a couple. They were not regarded by family and friends as a couple. There is no evidence of joint friends of the plaintiff and the deceased. There is no evidence of friends or family sending letters and cards or inviting them out as a couple. The evidence of the plaintiff’s sister deals with events in the early part of the relationship, such as accompanying the plaintiff to the funeral of the plaintiff’s mother in Tasmania in June 1992, and is consistent with a friend providing support.

They did not share significant moments together. They spent time together on the so called designated nights eating out, dancing (in the early years) and in having intimate relations.

There is no evidence of them staying with friends as a couple. The reference to the trip to Echuca in the early years was with acquaintances whose names the plaintiff could no longer recall.

The deceased and the plaintiff did not own or acquire any property or any other asset together. They did not live together or share a common home at any time. There was no financial dependence or any arrangements of financial support between them. There was no mutual commitment between them and there were no children of the relationship.

There was no expectation that the deceased would leave anything to the plaintiff, although towards the end of his life, he asked the defendant to buy the plaintiff a car which she was prepared to do in the circumstances outlined by her.[57]
[57]See above paragraph [100].

The deceased and the defendant had a mutually loving and strong relationship as well as strong business bonds. The plaintiff did nothing to build up the estate of the deceased. This was done by the deceased and his wife and was continued by the defendant. The deceased always stated to the defendant and others that he wished to leave his estate to his daughter and that everything he worked for over the years would be hers.

Accordingly, for the above reasons, the plaintiff’s claim should be dismissed. I will hear the parties as to costs.

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[2013] VSC 128

12 April 2013