Morwood v Dalgleish & Anor

[2007] NSWSC 32

CITATION:	Morwood v Dalgleish & Anor [2007] NSWSC 32
HEARING DATE(S):	29, 30, 31 January 2007
JUDGMENT DATE :	16 February 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
DECISION:	Paragraph 90
CATCHWORDS:	Family Provision. Application under the Family Provision Act for provision by de facto partner of deceased. Order made. No matter of principle.
PARTIES:	Ian David Morwood v Susan Margaret Dalgleish & Anor
FILE NUMBER(S):	SC 2804 of 2006
COUNSEL:	Mr P O'Loughlin for plaintiff Mr B Skinner for defendants
SOLICITORS:	Hancock Alldis & Roskov for plaintiff Djekovic Hearne & Walker for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Friday 16 February 2007

2804 of 2006 Ian David Morwood v Susan Margaret Dalgleish and Christopher David Gingell

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late Timothy Maxwell Gingell who died on 20 February 2006 aged 55 years. His brothers and sister, two of whom are the defendants in the action, survived the deceased. The plaintiff claims to have been living in a de facto relationship with the deceased at the date of death.

The last will of he deceased

2 Under the deceased’s will made on 28 October 1994, before the plaintiff and the deceased met, the defendants were appointed executors. Under his will the deceased left a legacy of $50,000 to a Mr Peter Tonkin who was a former partner of the deceased. The residue of the estate was left to the deceased’s sister and two brothers in equal shares.

Estate of the deceased

3 The deceased owned a house and a vacant block of land at Blueys Beach the total value of which is $1,900,000. He had shares worth $5,500, cash of about $280,000 a superannuation policy of $700,000, motor vehicles and personal effects. The deceased also had an interest in the estate of his father which was worth approximately $250,000. That interest has passed to the deceased's brothers and sister and has been distributed. The defendants costs are estimated at $60,000 and those of the plaintiff at $67,000.

Family History

4 The plaintiff was born on the 23 of February 1937 and is thus 69 years of age. The deceased was born on 3 November 1951. The plaintiff married his wife Tove Morwood in 1963 and they had two daughters.

5 The plaintiff and his wife had separate occupations but they both became bankrupt in September 1986. Their bankruptcies were discharged by operation of law in September 1989. The unfortunate events which led to their bankruptcies also led to the breakdown in their relationship and the plaintiff and his wife were divorced in February 1992. Thereafter the plaintiff became involved as a litigant in person in some litigation in the Federal Court in which he was unsuccessful. That concluded when the High Court refused special leave to appeal in September 1999.

6 The plaintiff and deceased first met in November 2002. At that stage the plaintiff was living in a tent in a caravan park in the National Park near Blueys Beach. The defendant who had previously had heterosexual and homosexual relationships had moved to Blueys Beach in November 1997.

7 According to the plaintiff in January 2003 at the invitation of the deceased the plaintiff began to live with the deceased at his home at Blueys Beach. The plaintiff introduced the deceased to his passion of bicycle riding and this was a common interest for them. The deceased’s mother died in March 2003 leaving her husband and children to survive her.

8 In his early years the plaintiff lived in institutions run by the Roman Catholic Church and in October 2003 he received compensation of $28,000 in respect of some of the unfortunate incidents which occurred in his early life. According to the plaintiff the deceased helped the plaintiff to come to terms with these problems and to resolve them.

9 In October 2004 the plaintiff contracted viral encephalitis and was looked after by the deceased during that illness. In the middle of 2005 the deceased fell from his bicycle and broke his collarbone. This required extensive nursing care which was provided by the plaintiff who also took the deceased to his medical and associated appointments. At this time there was also discussion between the deceased and the plaintiff when the deceased said, according to the plaintiff, that he wished the plaintiff to have the use of his estate until he, the plaintiff, died.

10 Apart from the house at Blueys Beach the deceased also owned a block of land opposite and in the latter part of 2005 there were discussions between the deceased and the plaintiff about building a new house on the vacant block of land and this continued to the planning stage.

11 In early February 2003 the plaintiff and the deceased made arrangements for a camping holiday together and the plaintiff left to take part in some cycling events. Towards the end of February the plaintiff received a call from the Forster police informing him of the death of the deceased who had died about the 20 February 2006.

12 Thereafter the plaintiff was excluded from the Blueys Beach property and he returned to live in the tent in the caravan park. Probate was granted to the defendants on 8 April 2006 and these proceedings were commenced within time.

Eligibility

13 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 which took effect on 28 June 1999 there was an extension of the Act which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of a Domestic Relationship in the Property (Relationships) Act 1984.

14 That Act applies to domestic relationships which are defined in s 5 as follows:-

"5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:

(a) a child born as a result of sexual relations between the parties,

(b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(i) of whom the man is the father, or

(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,

(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

15 It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship.

16 The definition of de facto relationship itself appears in s 4 and is in the following terms:-

4. De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and
(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2 ) (a)--(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

17 This definition, apart from the provisions of sub-clause (1), merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984 and the Family Provision Act 1982. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677.

18 Apart from the exclusionary matters in s 5(2) there is no definition of "close personal relationship". Little help is obtained from the reading speeches as to the meaning of "close personal relationship". It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons "who are living together, one or each of whom provides the other with domestic support and personal care". It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The "close personal relationship" has to be between two adult persons who are " living together". Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that one or each provides the other with domestic support and personal care.

19 So far as the first requirement is concerned since one is not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together.

20 The second requirement is cumulative. There must be both domestic support and personal care.

21 It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include:-

(a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own.

(b) Of or pertaining to one's person body or figure; bodily."

22 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:-

(a) The person concerned.

(b) An employed valet or lady in waiting,

(c) a mother for her sick child or

(d) a daughter for her elderly incapacitated mother.

23 The legislation in terms excludes the first two but would include the last two examples.

24 The plaintiff claims to have been living with the deceased in a de facto relationship at the date of death. He suggests that he was also living in a close personal relationship with the deceased. In the event that this is not accepted the plaintiff puts his case on the basis that he was a member of the household of the deceased and partly dependent upon the deceased.

25 I return to the claim by the plaintiff as to whether he was a de facto partner of the deceased at the date of his death. It is convenient to discuss this question under the various factual matters to which I referred earlier when discussing the statutory framework.

26 Before I embark on this task it is to be noted that this is a case where the deceased's family, which in this case consisted of his siblings, did not know of the relationship between the deceased and the plaintiff. However, the deceased discussed his relationship with the plaintiff with former partners, friends and others many who have given evidence in the present case.

Duration of the relationship

27 The plaintiff says the relationship commenced in January 2003 and accordingly it was for a duration of three years. There was sufficient evidence of conversations between the deceased and friends referring to the commencement of the relationship to support the plaintiff’s version on this aspect.

28 Ashley Martin Sparkes in his affidavit dated 24 July 2006 stated that he knew the deceased from 1970 until his death in February 2006. Mr Sparkes first met Ian on 31 December 2002 and recalls the plaintiff staying overnight with the deceased during his stay. During cross-examination, Mr Sparkes agreed that the deceased had had a relationship with a female, Lita that lasted some years, and had relationships with men, one that was longer term than the rest. In re-examination, he stated that he had regular telephone conversations with the deceased, and that the plaintiff was mentioned some of the time.

29 It is necessary to refer to one matter which was raised in respect of the plaintiff’s credit which resulted from the litigation in which the plaintiff was a litigant in person in the Federal Court. In the judgment of Lockhart J His Honour had occasion to refer to the credit of Mr Morwood. The first occasion on which His Honour mentioned it was in the following terms:

“Before making my findings of fact must deal with the question of Mr Morwood’s credibility. I do so with some regret, but it is necessary to resolve this question. I formed the view that Mr Morwood is an unreliable witness. He is keenly aware of all the relevant issues in the case and in my opinion tailored his evidence to suit the interests of the applicants. When critical conversations are involved I do not accept his evidence; and I accept the evidence of the witnesses for the respondents. His evidence is in many respects inconsistent with contemporaneous documents and not in accord with the probabilities. However, in my view Mr Morwood is not a man who went into the witness box to deliberately tell lies. But he has lived with this case for so long that he has convinced himself that what he says is true. ”

30 Later His Honour returned to the matter in these terms:

“ I have already dealt with the credit of Morwood; but analysis of his evidence and conduct generally and the relevant documents reveals that he has expressed sometimes quite untenable propositions and that at other times his evidence is characterised by half truths which give a very different impression about what in fact occurred. It is interesting to note that he contributed no money to ComputerAd throughout the entire time of his involvement with it. Indeed, he persuaded third parties, Messrs Allen and Speck, to advance substantial funds to ComputerAd, a significant portion of which was paid to the Deshono, controlled by Morwood. Morwood also organised or engineered the issue of 9000 shares in ComputerAd to himself, which would give him the overwhelming share of any judgment sum recovered by him in this proceeding. In this respect it must be noted that ComputerAd’s claim exceeds $1 billion. Morwood paid no cash whatever to ComputerAd for the issue of these shares, relying instead upon some undocumented set-off of moneys said to be owing to him by the company. ’

31 I found the plaintiff to be a straightforward witness and it was not evident to me that he was tailoring his evidence. However I will take care when considering the evidence of other witnesses where the circumstances require such an approach.

The nature and extent of common residence

32 The defendant read an affidavit of Brigette Leveaux dated 3 November 2006. In it she states that she had known the deceased for roughly ten years. She has no recollection of ever seeing the deceased and the plaintiff together. She does not recall the deceased ever mentioning the plaintiff by name. The deceased did tell her that he had met a man who was staying with him, but the justification provided to her was that he lived in a tent, and it was a “particularly wet period”. Ms Leveaux states that a week before the deceased’s death, she met him on the beach by accident. He said words to the effect that they should buy “a little place together in Sydney”. She was keen to pursue the proposal but the deceased’s death precluded further consideration of the matter.

33 Evidence provided by the plaintiff at the hearing indicates that the plaintiff did not change his official mailing address throughout this period. The plaintiff used his daughter’s (Leiat McCoy) address at 6 Bangalow Street, Mona Vale, New South Wales, 2803. That is the formal address on his drivers licence and he has never changed it. The address shown for him on the electoral roll is 19B Hallstrom Place, Mona Vale since August 1999. This address was also used for Centrelink applications made on 23 February 2002.

34 During his claim against the Catholic Church, the plaintiff had correspondence with Mr Peter Callaghan QC and the address he provided was PO Box 1005, Mona Vale.

35 The plaintiff also had consultations with a psychologist where he told the psychologist he was living at Blueys Beach but that the address for correspondence was to be to his daughter in Mona Vale.

36 The plaintiff did not use the deceased’s Headlands Road address whilst making submissions to a Senate Select Committee in July 2003, or in writing letters to the Manly Daily Newspaper in June 2004 or December 2005.

37 The plaintiff also sought consultation with Dr Ron Cassano who was recommended by the deceased. He provided his daughter’s address in Mona Vale, because that was the address on his Medicare Card.

38 The plaintiff gave evidence that he lived with the deceased apart from the occasions when he was with his family or when he was away competing in cycling events. His explanation for the addresses he used was simply that he received so little correspondence that there was no point in going to the trouble of making any change.

39 His evidence was to the effect that in 2003 he was away in July for three weeks spending time with his daughter in Sydney. He was away for two weeks in November when he was cycling in Sydney and from 15 December when he was cycling in Tasmania.

40 In 2004 he was away in January for one week when he was cycling in Tasmania and Victoria and in March for one week cycling in Victoria. In July he spent two weeks with his daughter and another week with her in August. In October he was in Telford for two weeks cycling and in December he was away for two weeks cycling in Tasmania. In 2005 he away as usual for the whole of January and for the first week of February when he was cycling in Tasmania and Victoria. In May he was with his daughter for three weeks helping with renovations and in December he was again cycling for two weeks in Tasmania.

41 He says that during 2006 he was away for the whole of January and some of February when he was cycling in Tasmania and Victoria waiting to meet up with the deceased. It is apparent not only from plaintiff’s account but also from the comments of friends that the deceased spoke of these trips which were agreed to by the deceased.

42 This raises the question of whether a relationship of this nature continues notwithstanding these absences. There have been a number of references in the cases to the problem which started to surface in Australia in cases under matrimonial legislation which provided for parties living separately and apart as a ground for divorce. An earlier case which is of use on the general principle is Main v Main (1949) 78 CLR 636. At page 642 in the joint decision of the majority the following was said:-

"Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.

In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties."

43 As indicated by the High Court there are degrees of separation and in accordance with the passages I have indicated, separation by reason of illness or otherwise does not mean that the relationship has ceased.

44 This matter arises in a number of cases under the Property (Relationships) Act and occurs in the context of whether or not there have been several separate periods of the relationship. This sometimes is significant because a period of relationship and a separation period might be before the commencement of the Act. The matter was dealt with at an early stage in George v Hibberson (1987) DFC 95-054. That was a decision of his Honour Cohen J which went on appeal to the Court of Appeal. At the trial his Honour Cohen J had the following to say:-

“The use of the words 'living or having lived together as husband and wife on a bona fide domestic basis' suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. See the views of the Law Reform Commission in its report at para 17.18.

It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v McRae (1967) 68 SR (NSW) 361, the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together."

45 The theme which his Honour there picked up was repeated in the words of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 where his Honour said the following:-

"It is correct that the relevant relationship may continue notwithstanding that the parties are apart, for example on holidays ... There is, of course, more to a relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. The learned judge, correctly, treated the matter as a question of fact."

46 McHugh JA agreed with Mahoney JA. Hope JA said he agreed with McHugh JA so that it would seem that this expression by Mahoney JA is a considered view of the Court of Appeal.

47 Since then the matter has been considered in a number of cases. In particular, Powell JA has dealt with this on a number of occasions. In Lipman v Lipman (1989) 13 Fam LR 1 his Honour had the following to say:-

"Although I accept that the concept of 'a de facto relationship' does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from 'the matrimonial home', and although I do not discount the possibility that 'a de facto relationship' may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the 'de facto husband' requires the 'de facto wife' to leave the 'matrimonial home' and installs another in her place. As Mahoney JA said in Hibberson v George 12 Fam LR at 740; DFC at 75, supra.: 'The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.' I therefore conclude that, in this case, there were two discrete 'de facto relationships'."

48 In Thomson v Badger (1989) 13 Fam LR 559, his Honour Young J had to deal with a case where the relationship was one which was interrupted by absences on a number of occasions. His Honour referred to the cases to which I have referred and also referred to Re Australian National Railways Commission and Gerlach (1987) DFC 95-048. He used that as authority for the proposition that one must view the circumstances in which the parties ceased to live under the same roof in the context of their total relationship and he posed the question that one must ask in the context of the total relationship whether there was a mere lovers' quarrel or a termination of the relationship. His Honour looked at the case in hand and described it as:

"... not being the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation, then usually a short time later the parties got together on the same basis again as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued ..."

49 The matter has also been referred to by Powell JA in Theodoropoulos v Theodosiou (1995) 38 NSWLR 424, where he referred, with approval, to the statement of Mahoney JA.

50 Also in Gazzard v Winders (1998) 23 Fam LR 716 he once again quoted with approval the statement by Mahoney JA in Hibberson v George. In that case Beazley JA had the following comments to make about Hibberson v George:-

"I would comment in passing only that I do not endorse in any unqualified way the comments of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725. For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship, may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for six weeks in a period of fourteen and a half years should prevent the court from taking into account the circumstance that this was a lengthy relationship of that order. Even if I am wrong, I consider ten and a half years to be a relationship of a lengthy duration."

51 In the light of those matters, I think there is a strong weight of authority which supports the view expressed by Mahoney JA in the Court of Appeal in Hibberson v George. Of particular note is his view that:-

"... where one party determines not 'to live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely to enable the one party or the other to decide whether it should continue."

52 The qualification that perhaps emerges from what his Honour Young J was referring to in Thomson v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may, in fact, lead one, on a factual basis, to suggest that perhaps an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour. That is perhaps what Beazley JA was alluding to in her comments in Gazzard v Winders. But, in any event, she was more concerned there with the more difficult circumstance as to whether the Court can take into account earlier periods of interruption to a relationship.

53 In the present case we are not so much concerned with the question of whether there was a separation but whether there was sufficient cohabitation for there to be the appropriate relationship. The purpose of periods when the parties were apart falls into the concept of holidays or pursuing family interests and it would be natural for the parties to accommodate each other's interests in this respect. Indeed there were occasions when the deceased went with the plaintiff to visit his family on family occasions.

54 Although the total period of separation was approximately 7 to 8 months given the reason for the separations I do not think that it would affect the existence of the relationship if it were plain that other factors indicate there was a de facto relationship.

Whether or not a sexual relationship existed

55 The plaintiff says that there was a sexual relationship between him and the deceased. There is evidence of the deceased having had previous homosexual relationships.

56 Kristine Anderson, one of the plaintiff’s daughters, indicated during cross-examination that she never asked whether the relationship between plaintiff and deceased was a sexual one, as she “would never be interested in my father’s sexual relationships of whatever nature”.

57 Ashley Martin Sparkes who had known the deceased since 1970 gave evidence in his affidavit that the deceased confided in him that the plaintiff and the deceased were “lovers”.

58 John Emslie Weate in his affidavit stated that from his own observations, Tim and Ian had been “lovers and partners”. He continues “I observed the sleeping arrangements and it was clear they used the upstairs bedroom”. In examination-in-chief, Mr Weate reiterated that he observed “only one other bedroom there was being used and obviously by two people”.

59 Evidence was given by Dr Pauline Cooper a medical practitioner who worked in the Taree area. She knew his sexual orientation and she met many of his partners. She was a friend of the deceased for about 30 years and occasionally saw him professionally. On a number of occasions she had to visit the deceased at his home and was obliged to see the deceased in his bedroom. She gave evidence that was plain that the deceased and the plaintiff occupied the same bedroom. Dr Cooper was an astute witness and I accept her evidence. In these circumstances I accept the plaintiff’s evidence that he and the deceased had a sexual relationship.

The degree of financial dependence or interdependence and any arrangements for financial support between the parties

60 The parties did not share bank accounts or engage in joint financial endeavours during the period of the relationship. The plaintiff made contributions of about $100 per fortnight when he was actually at the house and he made these from his pension. It is plain that the plaintiff relied upon the deceased for support in a factual sense once a decision was made to move. It was the deceased who provided the accommodation which both parties desired through his ownership of the property. The fact that he could have gone back to live in his tent in the caravan park was not the point. He was dependent upon the deceased for accommodation while he was residing with the deceased.

The ownership, use and acquisition of property

61 There was no property which the parties acquired together other than perhaps some items of personalty.

The degree of mutual commitment to a shared life

62 It is apparent from evidence given by a number of witnesses that the deceased regarded the plaintiff is someone special. Certainly the evidence demonstrates that the plaintiff introduced cycling into the deceased's life and that he enjoyed this new dimension.

63 Once again I found the evidence from Dr Cooper informative on this aspect because she was a person who through her dealings with people as a medical practitioner was perceptive in her observations. She gave evidence of the bond between the plaintiff and the deceased and the things that they did for each other.

64 Leiat Mccoy, one of the daughters of the plaintiff, stated in her affidavit of 13 July 2006 that her father had told her that the deceased and him were “soul mates”. She further recalls conversations with the deceased, and on one occasion recalls him stating that the deceased and plaintiff had “a very special bond”. Kristine Anderson, another of the plaintiff’s daughters made an affidavit on 13 July 2006 to a similar effect.

65 Phillip Mawer stated in his affidavit dated 16 July 2006 that he was a long-standing friend with the deceased since the 1970’s when he had a sexual relationship with the deceased. His affidavit states that the deceased told him about his relationship with the plaintiff, saying “Ian and I are now living together and we are sharing our lives. I really value Ian’s friendship”. In cross-examination, Mr Mawer indicated that he visited “Blueys” once, in 2000. He also confirmed that the conversation with the deceased about a person called “Ian” was a single conversation, and that he could not specifically recall when the conversation occurred, other than it being prior to Mr Mawer’s move to Tilba from Melbourne (Trans p14 at 16). Mr Mawer did state that the phone call was a “significant phone call, that’s why I remember the phone call, the content of the conversation”.

66 The plaintiff’s evidence of a shared life included support for each other in a number of difficult situations. On the plaintiff’s part the deceased shared his suffering as a result of the treatment he received at the hands of the Roman Catholic Church. The plaintiff also received care and attention from the deceased during his illness with encephalitis. For his part the plaintiff says, and I accept him on this, that he supported the deceased in a number of ways. These included supporting the deceased during his bouts of depression and looking after him when he broke his collarbone.

67 Although the plaintiff was away from time to time cycling, this part of his life was also enjoyed by the deceased who sometimes joined him. Indeed the deceased was planning to join the plaintiff in Victoria to continue their cycling. Unfortunately he died before this could happen. Ashley Martin Sparkes in his affidavit dated 24 July 2006 attributes the deceased taking up cycling as a sport as the influence of the plaintiff.

68 In my mind there was a substantial commitment between them.

The care and support of children

69 This is not relevant in this case.

The performance of household duties

70 The plaintiff was better than the deceased at doing hard manual work in the garden. However the deceased was a better cook than the plaintiff. The deceased did all the cooking while the plaintiff did the washing up. These arrangements were discussed by some of the independent witnesses who gave evidence.

The reputation and public aspects of the relationship

71 In this case there is not a great deal of evidence on the reputation and public aspect of the relationship. However, it is plain that the deceased discussed his relationship with the plaintiff and its importance to him with a number of people. In particular Dr Cooper gave evidence of the importance of the deceased’s relationship with the plaintiff compared with other relationships he had had in the past.

72 Patricia Roberts, a neighbour of Tim and Ian states in her affidavit of 22 July 2006 that she would “frequently see Tim and Ian together” and that when Tim called in for a cup of tea he “never talked about his family but he talked often about Ian”. Ms Hannay stated in the affidavit that the deceased’s brother Norm rang her. She told him “I know Tim had a relationship with a man”, to which Norm replied “Ah, Ian, there is a memorial service and Ian is going to look after that…” Ms Hannay stated in examination-in-chief that the deceased spoke to her on numerous occasions of her difficulty with family. He once said to her “I hate going to the family gatherings because I don’t feel accepted by my brothers”.

73 John Emslie Weate stated in his affidavit of 11 September 2006 that whilst it was unusual for Tim to talk about his personal relationships, he spoke regularly about the plaintiff. When Mr Weate was invited to the deceased’s home for a meal, he recalls them acting “like they were spouses” with “intimate verbal communication”. He added “they [Tim and Ian] appeared to be physically close but not excessively demonstrative.

74 The deceased did not tell his brothers about his relationship with the plaintiff nor was there any discussion by him with his sister with whom he was a lot closer. The fact that his siblings did not know about the relationship is not surprising given that the deceased apparently was bisexual and he had a reluctance to discuss such matters with his brothers.

Conclusion

75 Although there were substantial breaks for holidays during the course of the relationship they were consensual. Notwithstanding the extent of these separations there appears to have been a strong bond and commitment between the plaintiff and the deceased. I accept the plaintiff’s explanation for failing to change his postal address. I am satisfied that at the date of death the plaintiff was living in a de facto relationship with the deceased.

76 Although it is not necessary for me to deal with the alternative claim based upon the fact that it was suggested that the parties were living in a close personal relationship, I will make some comment on the claim. The plaintiff gave the requisite support to the deceased in respect of the deceased’s broken collarbone and his depression. However whether one could say that the purpose of the relationship was to give personal care and attention to the deceased is a difficult matter. Accordingly I have no concluded view on this alternative claim.

77 The other alternative claim, namely, that the plaintiff was living as a member of the deceased’s household and was in part dependent upon him is, I think, quite straightforward. It was conceded that he was a member of the household of the deceased. In my view, during the period that he lived there he was dependent upon the deceased for accommodation. I will not refer to the cases which are well known in this area which demonstrate that dependency in fact is the relevant matter.

78 On this alternative basis it would be necessary for the plaintiff to establish factors warranting the making of the application. On the traditional basis of factors warranting, the circumstances which I have outlined above concerning the relationship are such that I would have thought that factors warranting the making of the application have been made out.

The plaintiff situation in life

79 The plaintiff is 69 years of age, he is single and has no dependants. His only assets are recently purchased car, camping and cycling equipment and personal effects. He has no superannuation. He receives $250 per week by way of the old-age pension most of which is consumed in living expenses which includes his camping fees.

80 The plaintiff lives in the camping ground and there are minimal facilities as he has no electric light and has to move site regularly in order to accommodate the National Parks and Wildlife requirements. It is necessary to consider the situation in light of others having a claim on the bounty of the deceased. In this case it is the siblings of the deceased.

The situation in life of Norman Richard Gyngell

81 Norman is aged 55, and married with the three children, two of whom are still dependent upon him. He has a contract to work in the public sector and provides policy advice to the chairman of the productivity commission on a part-time basis. He works four days a week and his income is $84,000 per annum which is mainly used in his expenses. He has a house worth $400,000 superannuation of $570,000, savings of $7,000 and in addition he has investment properties worth $630,000 car and shares. His total debts amount to $550,000.

82 He was not aware of the deceased’s relationship with the plaintiff as it seems that the deceased had not confided in him.

The situation in life of Christopher David Gyngell

83 Christopher is 50 years of age and is the younger brother of the deceased. He is married with two daughters who are still dependent upon him. He is Business Development Manager with a firm of solicitors in Sydney. His income is $140,000 per annum and his expenses some $81,000. Christopher has a home Eastwood worth $750,000 a weekend retreat at Terrigal worth $350,000, two motor vehicles, superannuation and investment of $704,000.

The situation in life of Susan Margaret Dalgleish

84 Susan is 53 years of age and is a teacher. She is married and her husband runs a building business. She has cash assets of about $200,000 owns a car, some shares and other items of personalty. She and her husband live in rented accommodation. Her husband owns a vacant property at Blueys Beach worth about $500,000. Her income is presently $45,000 before tax and her weekly expenses are approximately $600 per week.

85 Like her brothers she was not made aware of the plaintiff's relationship with the deceased before his death.

Discussion

86 It is necessary to see how the plaintiff says he was left without adequate and proper provision for his maintenance, education and advancement in life.

87 The plaintiff asked the court to provide him with a legacy to enable him to purchase accommodation in the Blueys Beach area valued at $800,000 and an additional legacy to provide a buffer. It was not submitted that he should receive a life interest in the estate.

88 It is plain that the brothers and sister of the deceased are reasonably well off and that the estate is substantial. However these are not the only factors which have to be taken into account when determining what is an appropriate level of quantum. In the present case the relationship was only three years and the plaintiff contributed nothing to the assets in the estate. Under these circumstances it would be quite inappropriate to provide a substantial legacy to the plaintiff so that he could purchase a house. Such a provision might be appropriate if he had had a long relationship, such as a 30-year relationship, and he had substantially contributed to the assets built up during that period.

89 That is not the present case. The plaintiff is in difficult financial circumstances. He has little assets and he is forced to live in a caravan park. Plainly some assistance with his accommodation, whether it is better accommodation in the caravan park or otherwise, would be appropriate. In the circumstances, the appropriate order is that the plaintiff should receive a legacy of $100,000.

90 The orders I make are as follows:

1. The plaintiff to receive a legacy out the estate of the deceased in the sum of $100,000.

2. The plaintiff's costs on the ordinary basis and the defendants’ costs on an indemnity basis be paid or retained out of the estate of the deceased.

3. Interest shall be payable at the rate provided for under the Wills Probate and Administration Act 1898 if the legacy is not paid within three months from today's date and the interest is to run from that date.
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