Sadiq v NSW Trustee & Guardian

[2015] NSWSC 716

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sadiq v NSW Trustee & Guardian [2015] NSWSC 716

Hearing dates:

28, 29, 30 April 2015

Decision date:

09 June 2015

Jurisdiction:

Equity Division

Before:

Hallen J

Decision:

The Court orders:
The Plaintiff’s Statement of Claim is dismissed.
The Plaintiff is to pay the Defendant’s costs of the proceedings.
The interlocutory injunction granted by Robb J on 24 July 2014 restraining the Defendant from selling the Paddington property is hereby dissolved.
The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

Catchwords:

PRACTICE & PROCEDURE – Self-represented Plaintiff at the hearing – On occasions prior to hearing, Plaintiff had pro bono assistance from counsel – Plaintiff terminated pro bono assistance shortly prior to hearing – Refuses offer of pro bono assistance at the hearing – Responsibility of the court to ensure fair hearing.

 

PROBATE – Intestacy – Deceased died intestate in June 2013 – Plaintiff asserts he was a party to a domestic partnership with the intestate immediately before the intestate’s death in that he was in a de facto relationship which was in existence for continuous period of 2 years before her death and entitled under Succession Act 2006 (NSW), s 113, to the statutory legacy for spouse – Defendant denies the relationship.

SUCCESSION – Claim for family provision order – Alternative claim for family provision – Reliance on different categories of eligibility – Defendant denies Plaintiff an eligible person within any category of eligibility but in the event that the court finds eligibility then factors warranting the making of the Plaintiff’s application not disputed. In that event, Defendants says provision out of the estate should be by way of modest lump sum.

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)
Interpretation Act 1987 (NSW)
NSW Law Reform Commission, Uniform Succession Laws: Intestacy (April 2007)
Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176
Amaca Pty Ltd v Novek [2009] NSWCA 50
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1
Ashton v Pratt (No. 2) [2012] NSWSC 3
Aubrey v Kain [2014] NSWSC 15
Bar-Mordecai v Hillston [2004] NSWCA 65
Bartlett v Coomber [2008] NSWCA 100
Benney v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep)
Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Brown v Faggoter [1998] NSWCA 44
Butcher v Craig [2009] WASC 164
Chandler v Coulson [2015] NSWSC 172
Chapple v Wilcox [2014] NSWCA 392
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Cicek v Estate of late Solomon [2014] NSWCA 278
Collins v McGain [2003] NSWCA 190
Cormick v Salmon [1984] HCA 79; (1984) 156 CLR 170
Dakin v Sansbury [2010] FMCAfam 628
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Dion v Rieser [2010] NSWSC 50
Diver v Neal [2009] NSWCA 54
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Gardiner v Gardiner [2014] NSWSC 435
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hayes v Marquis [2008] NSWCA 10
Hyland v Burbidge [2000] NSWSC 12
In re Allardice; Allardice v Allardice (1910) 29 NZLR 959
In the Estate of the late Anthony Marras [2014] NSWSC 915
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep)
Kay v Archbold [2008] NSWSC 254
Kingsland v McIndoe [1989] VR 273
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191
Light v Anderson (1992) DFC 95-120
Lynam v Director General of Social Security (1983) 52 ALR 128
MacPherson v R [1981] HCA 46; (1981) 147 CLR 512
Markulin v Drew (Supreme Court (NSW), Young J, 12 August 1993, unrep)
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McKenzie v Baddeley [1991] NSWCA 197
Moby v Schulter [2010] FamCA 748
Moloney v Goodwin (Supreme Court (NSW), Needham J, 1 August 1989, unrep)
Munro v Lake (Supreme Court (NSW), McLelland J, 8 February 1991, unrep)
Palagiano v Mankarios [2011] NSWSC 61
Penfold v Perpetual Trustee [2002] NSWSC 648
Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8
Petrohilos v Hunter (1991) 25 NSWLR 343
Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619
Piras v Egan [2008] NSWCA 59
Pogorelic v Banovich [2007] WASC 45
Poletti v Jones [2015] NSWCA 107
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Re Dennis (Deceased) [1981] 2 All ER 140
Re Estate of Bridges (1975) 12 SASR 1
Re Estate of Sigg (dec’d) [2009] VSC 47
Re Fulop Deceased (1987) 8 NSWLR 679
Richardson v Armistead [2000] VSC 551
Robson v Quijarro [2009] NSWCA 365
Romascu v Manolache (No 2) [2012] NSWSC 87
Salmon v Osmond [2015] NSWCA 42
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Scragg v Scott [2006] NZFLR 1076
Sharpless v McKibbin [2007] NSWSC 1498
Shi v ABI-K Pty Ltd [2014] NSWCA 293
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-550
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Skinner v Frappell [2008] NSWCA 296
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Sullman v Sullman [2002] NSWSC 169
Sung v Malaxos [2015] NSWSC 186
Szypica v O’Beirne [2013] NSWSC 297
Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100
Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wagstaff v Wagstaff (Supreme Court (NSW), 6 November 1991, unrep)
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Webb v Ryan [2012] VSC 377
West v Mann [2013] NSWSC 1852
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Williams v Aucutt [2000] 2 NZLR 479
Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep)
Ye v Fung [2006] NSWSC 243
Zahra v Francica [2009] NSWSC 1206Click here to enter text.

Texts Cited:

J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
The Macquarie Dictionary
Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History
The Second Reading Speech of the Property (Relationships) Legislation Amendment Bill (Legislative Assembly, (Hansard) 26 May 1999)
Hon Justice Peter McClellan “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655
The Oxford English Dictionary Click here to enter text.

Category:

Principal judgment

Parties:

Waleed Sadiq (Plaintiff)
NSW Trustee & Guardian (Defendant)

Representation:

Counsel:
Mr D Stewart (Defendant)

Solicitors:
NSW Trustee & Guardian (Defendant)

File Number(s):

2014/174088

Judgment

The Claims

1. HIS HONOUR: At the heart of this case is a dispute about the nature of the relationship, if there was one, between the deceased, Christina Olga Coombes, and the Plaintiff, Waleed Sadiq, who effectively seeks, by way of principal relief, a declaration that he was the deceased’s “spouse” at the date of her death in June 2013 and consequential relief. Alternatively, the Plaintiff seeks a family provision order out of the estate of the deceased. A family provision order is an order made by the court, under Chapter 3 of the Succession Act 2006 NSW, (“the Act”) in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. (In this case, there is no estate sought to be designated as notional estate.)

2. There is no dispute that the deceased died intestate leaving property in New South Wales. There is also no dispute that, at the date of her death, the deceased died leaving no “spouse” (or other spouse if the Plaintiff is successful) and no issue. “Spouse” is defined in s 104 of the Act as “a person (a) who was married to the intestate immediately before the intestate’s death, or (b) who was a party to a domestic partnership with the intestate immediately before the intestate’s death”. (It is not suggested that the Plaintiff was married to the deceased at any time.)

3. Relevantly, a “party to a domestic partnership” is defined in s 105 of the Act as including “a de facto relationship that (a) has been in existence for a continuous period of 2 years, or (b) has resulted in the birth of a child”. (It is not suggested that any relationship between the Plaintiff and the deceased resulted in the birth of a child.)

4. It follows that the key question, in relation to the principal relief sought by the Plaintiff, is whether he and the deceased were in a de facto relationship that had been in existence for a continuous period of 2 years at the date of her death. In the event he was, then there is no dispute that, on intestacy, he is entitled to the whole of the deceased’s estate.

5. In relation to his claim for a family provision order, which claim will only proceed if his principal claim is not successful, the Plaintiff asserts that:

(a)   he is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member (s 57(1)(e) of the Act); or that

(b)   he is a person with whom the deceased was living in a close personal relationship at the time of her death (s 57(1)(f) of the Act).

6. (The Plaintiff also relied upon s 57(1)(b) of the Act. That sub-section simply identifies, as an eligible person, “a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”. There is no other temporal limit in the subsection. Thus, eligibility to make a claim for a family provision order as an eligible person under this sub-section does not require the existence of a de facto relationship for a continuous period of two years.)

7. The Defendant named in the proceedings is the NSW Trustee & Guardian, to which this court granted Letters of Administration on intestacy, on 21 August 2013.

8. The Plaintiff seeks an order that the grant of administration to the Defendant be revoked and an order that a grant of administration be made to him. He only has a relevant “interest” to obtain this order if he is entitled to the whole of the deceased’s estate upon intestacy. Only then, would he have a better claim to be the administrator of the estate of the deceased than the Defendant. I shall return to this question, if necessary, later in these reasons.

9. The Defendant disputes that the Plaintiff was in a de facto relationship with the deceased, for a continuous period of 2 years at the date of her death, or at all. In addition, the Defendant denies that the Plaintiff is otherwise an eligible person within the meaning of that term in s 57(1)(e) and (f) of the Act. Accordingly, the Defendant seeks the dismissal of the Plaintiff’s proceedings, with costs.

The Course of the Proceedings

10. The matter has been in the Family Provision List since July 2014. On the first return date of the Summons, the Plaintiff appeared in person. He confirmed that he was not legally trained. The court urged him to obtain legal assistance.

11. Following the first return date, Mr S G Wilson, a legal officer employed by the Defendant who had the day to day conduct of the proceedings, wrote to the Plaintiff informing him of a number of matters, including that the Defendant “will be challenging your eligibility to bring a claim and it will be alleged that your claim, contained in your affidavit on 1 July 2014, that you lived with the deceased for 16 years, or that you lived with her at all, will be challenged and placed in issue in the Court proceedings”.

12. Subsequently, on a number of occasions when the matter was listed for directions, the Plaintiff appeared in person, and on other occasions, he appeared with the pro bono assistance of Mr J Brown of counsel. On each occasion that the Plaintiff appeared in person, unrepresented, the court reminded him that he was likely to be disadvantaged because he did not have sufficient legal knowledge, the skills, or the objectivity, to conduct this quite complex litigation and urged him to continue with the pro bono assistance. On occasions, he seemed to accept this admonition and then relied upon Mr Brown who appeared, on subsequent occasions, on his behalf. (In this regard, I infer that, during the course of the proceedings, the Plaintiff had available a legal representative who would have provided advice regarding the contents of his affidavits and otherwise in relation to the preparation of the case for hearing.)

13. Regrettably, shortly prior to the hearing, the Plaintiff informed Mr Brown that he was no longer instructed. Mr Brown informed the court, and the Defendant, that his instructions had been withdrawn in an email dated 15 April 2015, sent to my Associate.

14. At the commencement of the hearing, I observed that Mr Brown was in court but not sitting at the Bar table. When I asked him, in the presence of the Plaintiff, if he was prepared to continue to assist the Plaintiff, Mr Brown again offered to do so, on a pro bono basis. After consideration, the Plaintiff refused the assistance.

15. In view of the fundamental right of a litigant to appear in person, enshrined in Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) rule 7.1(1), the court accepted that the Plaintiff wished to continue the proceedings representing himself.

16. I am grateful for the assistance provided by counsel during his involvement in the case and by his offer, at the hearing, again, to assist the Plaintiff on a pro bono basis. In this case, he (and the court) has given the Plaintiff every opportunity to take advantage of counsel’s legal expertise and experience. One can only speculate on the reasons why the Plaintiff chose, at different times, to reject the opportunity given to him to obtain that assistance. In the circumstances, he must bear the responsibility for, and accept the consequences of, any mistakes and errors, that were made during the course of the proceedings.

17. Following the exchange with the Plaintiff, Mr Brown and the Bench, the court confirmed its duty to ensure that the trial is fair and determined in accordance with the law. Of course, this duty applies whether he has been unable to obtain legal representation, or if the Plaintiff appears self-represented by his, or her, own choosing or where the party is represented: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, 546-547. It does not mean, however, that to dismiss one’s lawyers, or to retain none, should be an advantageous procedural step.

18. The Plaintiff was also told that if he appeared unrepresented, the court’s duty was not to advise him of how to conduct his case; nor to advise him of how his rights should be exercised; nor to become his advocate or stand in the shoes of his previous counsel. Nor would the court unduly interfere with the conduct of the trial on his behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to him as a self-represented litigant: Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, per Bell J, at 130; Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), per Samuels JA; Cicek v Estate of late Solomon [2014] NSWCA 278, per Ward JA, at [126]-[130]. The duty to ensure a fair trial applied to both parties.

19. The Plaintiff was also informed that the court would not permit him to give evidence from the bar table without oath or affirmation. (In this regard, the continued reference to the deceased by the Plaintiff as “my partner” and the other declarations made, from the bar Table, about his feelings for her, have been ignored. It is clear that he was passionate about his position.)

20. The limited guidance to which I have referred, then went to explaining to the Plaintiff how the case would proceed, commencing with the reading of the affidavits onto the court record; informing him of his right to object to any part of the affidavit evidence relied upon by the Defendant that he might regard as inadmissible; an explanation of the order of calling witnesses; informing him of his need to enter the witness box to be cross-examined (as he had been asked to attend for cross-examination); to have his only witness, whose affidavit he proposed to read, be available for cross-examination; his right to cross-examine the deponent of any affidavit read by the Defendant; and providing an explanation of the consequences of not cross-examining a witness. The guidance would not extend to advising him of how his rights should be exercised.

21. The court also provided him with an explanation of the role and purpose of cross-examination, and the necessity for him to put to each witness any aspects of his, or her, evidence that he proposed to contradict or claim was false, so that he, or she, would have an opportunity to provide an explanation. (Clearly, he took account of what had been said to him but, unsurprisingly, he struggled with what was required for an effective cross-examination.)

22. Finally, the Plaintiff was shown the Outline of Submissions that had been received from him and from counsel for the Defendant and he confirmed that he had a copy of each. A copy of the relevant sections of the Act and the Interpretation Act 1987 (NSW), upon which he would need to address the court, was provided to him later in the proceedings. He was told that there was a difference between evidence and submissions and that what he said during submissions would not be regarded as evidence.

23. As has been noted, “the right of a party to be given an opportunity to be heard… includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker. Whether such opportunities have been made available is a different question from whether they have been availed of. A party who has a reasonable opportunity to present his or her case and fails to make the most of it cannot later be heard to complain that there has been procedural unfairness”: Shi v ABI-K Pty Ltd [2014] NSWCA 293, at [50].

24. I have no doubt that the Plaintiff is an intelligent man. He seemed to have no difficulty understanding what was said to him. I also thought that his understanding of the English language, although not his ability to write it, was far better than originally thought. I found that he displayed an insight into the case that he was required to present and, because of prior legal assistance, or not, he was able to marshal arguments in support of his case.

10. In addition, throughout the proceedings, he was polite, calm, and he acted with appropriate respect to the court, counsel for the Defendant and the Defendant’s witnesses. His presentation of the case in court, except for one matter relating to questions put to one witness, has not contributed to the assessment of his credit on the facts.

11. Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the duty to ensure a fair trial to both parties, given to the Plaintiff who is clearly without any legal knowledge and whose first language is not English. Overall, I am satisfied that the Plaintiff understood the nature of the proceedings and that he conducted them as well as he could. It was clear that he had prepared for the hearing upon the basis that he would represent himself. He appeared to have no difficulty responding to questions, or to answering matters raised by the court. In my view, he conducted the hearing adequately.

12. I should also note that Mr D Stewart of counsel, who appeared for the Defendant, did not take pedantic objections to the Plaintiff’s affidavit evidence and, even though he was reminded that he could object to matters raised by the court, by way of explanation to the Plaintiff, or otherwise, he did not do so. Furthermore, during his cross-examination, he questioned the Plaintiff in a polite and calm manner and he allowed the Plaintiff every reasonable opportunity to answer the questions put to him.

13. Unfortunately for the Plaintiff, the evidence, overall, did not assist him in establishing that he was the spouse of the deceased at the date of her death or an eligible person within the meaning of the Act. It might be said that much of the evidence given by the Plaintiff was not corroborated and ultimately, he was unable to convince the court, on the balance of probabilities, of the case that he mounted.

The Defendant’s Notice of Motion

29. On 21 April 2015, the Defendant filed a notice of motion seeking an order that one of the witnesses who had sworn an affidavit read in the proceedings (Dr David Burke) give his evidence by audio link or, in the alternative, by video link.

30. The evidence in support of the notice of motion was given in an affidavit of Mr Wilson. He deposed that by letter dated 31 March 2015, he sent to Dr Burke a subpoena to attend to give evidence and a cheque for conduct money. The letter and the subpoena, in fact, did not reach him.

31. Mr Wilson says that, subsequently, he spoke to Dr Burke who informed him that he was leaving to go overseas on the following Tuesday. A subsequent conversation revealed that Dr Burke expected to be in London on 28, 29 and 30 April 2015.

32. Subsequent attempts to serve Dr Burke with a subpoena to give evidence proved unsuccessful, but Mr Wilson expressed the view that “when I have spoken to him he has been willing to give evidence in the matter”. There was no evidence, however, that Dr Burke had provided a specific time when, or a specific place from where, he would be able to give his evidence.

33. At the hearing, the Plaintiff acknowledged that he had been served with the notice of motion. He stated that he had not intended to cross-examine Dr Burke.

34. I raised with Mr Stewart one paragraph of Dr Burke’s affidavit that caused me concern if no objection was taken to it, and if Dr Burke was not available to be cross-examined. Very fairly, if I may say, Mr Stewart said that he would not read that paragraph. The balance of Dr Burke’s affidavit was read, with some successful objections by the Plaintiff, who then indicated that he did not require Dr Burke to be available for cross-examination.

35. In the circumstances, it was unnecessary to make an order in accordance with the notice of motion. I made an order dismissing the notice of motion and an order that the costs thereof be costs in the cause.

Background Facts

36. It is next necessary to identify the background facts. The following facts are not in dispute, or I am satisfied that they are clearly established by the evidence. It is necessary to include in this narrative, the results of searches carried out on behalf of the Defendant to establish the entitlement of the next of kin on intestacy. Many of the facts set out below are taken from a bundle of documents identified as Ex. 1 in the proceedings.

37. The deceased was born “Christina Olga Blake”, in July 1938, in the United Kingdom. Her parents were identified on her Birth Certificate as Lawrence Brown Blake, and Olga Vera May Blake. They married in January 1935. Their marriage was dissolved in February 1947.

38. The deceased’s mother was born in October 1912 and she died in June 1981.

39. The deceased’s father was born in December 1906 and he died in February 1968.

40. There were two other children of the marriage of the deceased’s parents, being Deirdre, who was born in August 1942, and John, who was born in September 1944.

41. The deceased arrived in Fremantle, Western Australia, with her mother and two siblings, on 22 March 1947.

42. Deirdre died in March 2007, leaving three children, namely Sarah Joy Blakesmith, Georgina Olga Smith and Damon Jerry John Smith. Each of these children, who is a niece or a nephew, of the deceased, is alive.

43. John, who is now known as John Simpson, is alive.

44. The deceased’s mother married Richard Whitby Simpson in December 1947. Their marriage was dissolved in May 1962. There were no children of their marriage.

45. The deceased’s father married Rosina Margaret Hughes in February 1949. There were two children of that marriage, being Lawrence Brown Blake Jnr, who was born in January 1951, and Fiona Margaret Blake, who was born in March 1954. Each is a sibling of the half blood of the deceased.

46. The deceased married Kenneth Roy Coombes in May 1959. At the date of their marriage, he was aged 26 years and was a bachelor, whilst the deceased was then aged 22 years and was a spinster.

47. The deceased’s marriage to Mr Coombes was dissolved in November 1975. There were no issue of their marriage.

48. Mr Coombes predeceased the deceased having died, in Queensland, in October 2001. The Death Certificate identifies a child of Mr Coombes, named “Christina”, who, in 2001, was said to be aged 49 years. If this information is correct, it is likely that she was not a child of the deceased because the marriage of the deceased and Mr Coombes did not take place until 1959. There is no evidence that the deceased knew Mr Coombes in 1952.

49. The Defendant has carried out searches to locate a Will of the deceased at the premises where the deceased had lived prior to her death (in premises at Paddington), the bank (Westpac Banking Corporation) where the deceased held an account, at the Presbyterian Aged Care in Paddington, where the deceased resided immediately before her death, and also in the Defendant’s Index of Wills. No Will, or other testamentary document, has been located. Nor was the identity of any solicitor who had acted for the deceased ascertained.

50. As stated, this court granted Letters of Administration on intestacy to the Defendant on 21 August 2013.

51. In the Inventory of Property attached to the Letters of Administration, the deceased’s estate was disclosed as having a gross value of $778,911. The estate was said to consist of real estate at Paddington ($700,000) (“the Paddington property”), and money in a bank or financial institution on deposit ($78,911). There was no property owned by the deceased as joint tenant with another person and no liabilities of the deceased were disclosed.

52. There is no precise evidence of the date of purchase of the Paddington property, but there is no dispute that the deceased purchased it many years before she is said to have met the Plaintiff. It appears that the deceased purchased it in the 1970’s.

53. The deceased’s sole income at the date of her death was a pension. There is no evidence that she disclosed to Centrelink, at any time, that she was living with the deceased in a de facto relationship.

54. A Notice of Intended Distribution of the estate of the deceased was published in the Sydney Morning Herald on 2 September 2013.

55. In an affidavit sworn on 6 August 2014, by Ms S Bullen, the Branch Manager of the Sydney Operations Centre (of the Defendant) where the estate of the deceased is being administered, liabilities totalling $571 were disclosed. In addition, Ms Bullen disclosed likely testamentary expenses totalling $26,939, including real estate agents’ commission on sale (calculated at 1.98%) ($10,098), advertising costs of sale ($4,200), legal costs of sale ($800), administrator’s commission ($11,574) and water rates ($267).

56. In an affidavit sworn on 20 March 2015, by Ms A Atlihan, the Assistant Branch Manager of the Sydney Operations Centre, the deceased’s estate was disclosed as having a current gross value of $803,367. The estate was said to consist of real estate at Paddington (“the Paddington property”) ($765,000), cash in the Defendant’s Estate Ledger account ($38,222), and interest thereon ($145). Likely liabilities of the estate amounting to $34,394, were disclosed, including real estate agents’ commission on sale of the Paddington property (calculated at 2.2%) ($16,860), advertising costs of sale ($4,200), legal costs of sale ($1,000), and the balance of unpaid executor’s commission ($12,334). (Executor’s commission of $3,305 has been paid.)

57. Although no specific amounts were disclosed in this affidavit, it was said that there may be additional liabilities, for tax, as well as the administrator’s legal costs of these proceedings.

58. (I should mention that the Paddington property has not been sold, because in July 2014, following a contested hearing, the Plaintiff (then represented by Mr Brown) obtained from Robb J, upon the usual undertaking as to damages, an injunction, until further order, restraining its sale.)

59. In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs, to the extent that he has any, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendant, as administrator, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate.

60. I have dealt with the principles that apply to the costs of a self-represented litigant in Romascu v Manolache (No 2) [2012] NSWSC 87, at [27]-[31]. It is not necessary to repeat what I wrote in that case. There is no evidence by the Plaintiff of any costs, or out of pocket expenses, that the Plaintiff has incurred. However, it appears, from the court’s records, that two payments, one of $999, and the other, of $1,028, have been made by the Plaintiff. (The source of the funds paid by the Plaintiff is unknown.)

61. Mr Wilson, in an affidavit sworn on 24 March 2015, estimated the Defendant’s costs and disbursements of the present proceedings, including counsel’s fees, calculated on the ordinary basis (inclusive of GST and upon the basis of a three day hearing), to be about $49,500. On the third day of the hearing, it having been raised with counsel for the Defendant, leave was sought to file a further affidavit, which estimated the Defendant’s costs and disbursements, calculated on the indemnity basis, at $61,500.

62. Because the Plaintiff did not object to the filing of the affidavit, and as the usual order for costs in the case of a Defendant is for costs to be calculated on the indemnity basis, I granted leave to file the further costs affidavit.

63. The parties accepted that, for the purposes of the hearing, I should determine the Plaintiff’s application for a family provision order, if that becomes necessary, upon the basis that the estimated value of the net distributable estate, after the payment of the estimated expenses, any other liabilities of the estate, and such costs as ordered to be paid out of the estate (using the Defendant’s costs estimate set out), will be about $705,450.

64. As stated, the Defendant disputes that the Plaintiff is an eligible person within the meaning of that term in the Act. Therefore, it will be necessary to determine whether the Plaintiff is an eligible person in the event that he is not found to have been a party to a domestic partnership with the deceased immediately before her death. No other eligible persons have been identified, although since a family provision order is sought, the prescribed form of notice has been given to the deceased’s brother, John, (as a potential beneficiary of the estate on intestacy). He has not participated, in any way, in the proceedings. There is no evidence that a prescribed notice has been given to any other potential beneficiary. In the circumstances of the case, I am satisfied it is unnecessary to do so.

65. The court was provided with a copy Google map search that depicted the front of the Paddington property and the neighbouring row of houses (Ex. 2). The court was also provided with 17 photographs (Ex. 3) depicting the state of the Paddington property following the death of the deceased. There is no suggestion that it was in any different state prior to her death. (I shall return to this group of photographs later in these reasons and the evidence given in respect thereof.)

The Affidavit Evidence upon which the Plaintiff relied

66. Much of the Plaintiff’s evidence is the subject of dispute. He relied, principally, upon the matters asserted in, and the documents annexed to, his own affidavits, as well as the evidence of only one witness, Ms G K Fitzmaurice. As stated, he was cross-examined.

67. The Plaintiff was born in Iraq, Baghdad, where he lived until the age of 23 years. He then left and travelled to Athens, Greece, in June 1979. With the assistance of the Red Cross, in June 1980, he migrated to Australia, arriving, first, in Melbourne. He stayed in Melbourne for about 6 months and then travelled to Sydney.

68. In his affidavit made on 7 August 2014, the Plaintiff did not say when he first met the deceased, but his evidence suggests that it was in about January 1996. He said also that in mid-January 1996, she gave him $400 to pay rent arrears. He stated that between March 1996 and May 1999, he lived with the deceased. He says that they had an intimate relationship during this period.

69. The Plaintiff says that later, in 1996, the deceased gave him $6,000 to repay some “state debt recovery fines”; in 1997, she gave him another $5,000, “so I could deal with some of my financial issues”; and in 1998-1999, she gave him another $5,000.

70. His evidence about this period is somewhat sparse and it lacks any real detail. There is no corroboration of the evidence that he gives.

71. The Plaintiff stated also, in the first affidavit, that he subsequently went to look for work in Melbourne, but returned after one week. He then lived, he says, one or two days a week, in various rented accommodation in Lewisham, Petersham, Enmore, Summer Hill, Croydon and then Chester Hill, but, at other times during this period, he lived with the deceased. He stated that in early October 2012, having been evicted from his accommodation because he owed $1,000 in rent, he returned to live with the deceased on a full time basis, where he remained until she died.

72. The Plaintiff gave evidence of what the deceased had told him, namely that her mother’s name was Olga (meaning “holy”); that she married Kenneth at the age of 21 years; that she had come to Australia, from London, at the age of “9 years… with her parent and sister and brother”; that she was older than her sister and brother; that she had bought the Paddington property when she was 38 years of age; she had been a teacher of sculpture and painting at North Sydney college for boys; that she had started selling her paintings at the Holdsworth Gallery in Woollahra and the Goodhope Gallery in Paddington in the late 1960’s.

73. The Plaintiff gave evidence also of what he did for the deceased, including shopping for her and buying food for her cats, cooking, washing and raking leaves in the back yard. He also says that he painted the window frames, and door frames, put a plaster interior coat on the house and painted it, and with the deceased’s assistance, he put up wallpaper in the lunch room and an upstairs room, and replaced the vinyl in the kitchen. (In cross-examination, he acknowledged that this was early in the relationship.)

74. The Plaintiff also gave evidence of the ways in which the deceased assisted him, including, that she helped him financially to pay his rent at times; that she provided other money to assist him to pay some debts; and that she permitted him to live with her at various times before, and then on a full time basis. He also said that she paid him $200 per fortnight “on a regular basis for a period of 14 years since 1999”. He also asserted that the deceased would otherwise support him, “because I was unable to support myself from my own resources”.

75. The Plaintiff described the activities that he and the deceased engaged in together, including attendances at the Captain Cook Hotel, at Moore Park; attendances at the Chauvel Cinema, and the Verona Cinema, at Paddington; they would go to the Paddington RSL; and to “Argentina tango classes…in Darlinghurst”. He also said that they would walk “around the Paddington area, holding hands, hugging, kissing, greeting people passing by and socialising [with] them”. He stated that the difference in their ages did not matter, the deceased stating that “age was only numbers”. (At the date of the deceased’s death, the deceased was almost 75 years and the Plaintiff was 57 or 58.)

76. He stated that in April 2013, the deceased was unable to move the left side of her body and that he alerted a neighbour to call an ambulance. The deceased was taken to St Vincent’s Hospital where she was diagnosed as having suffered a stroke. The Plaintiff said that he continued to live in the Paddington property, minding the house, and looking after the cats. He said that he “did not like to go to the Hospital because I don’t like the smell of it”.

77. The Plaintiff also stated that he visited the deceased on one occasion after she had been moved from the Hospital to respite care, when he massaged her feet, her back, her neck and her shoulders. He brought her coffee and a muffin. He stated that, on this occasion, he gave the deceased a handkerchief as a present and a card expressing that he was missing her, needed her, and that he would love her forever. He said that he went to visit her, again, on 14 June 2013, but was told that she had passed away. He said that he “left the house after that because I was very upset and overwhelming grieving and I fell (sic) devastated and my live shattered… And the same reason I didn’t attend the funeral.”

78. The Plaintiff states that he is homeless and wishes to “return to my house where Christina and I lived”.

79. The Plaintiff read an affidavit filed 19 March 2015, in which he stated that he was “living with Christina not legally married but were 17 years in a relationship as a couple started from 1996 to the last date of her life”. During the course of his evidence, the cross-examination (and in submissions), he referred to her, almost invariably, as “my partner”.

80. In support of his case, the Plaintiff produced a letter, dated 23 June 2014, from Centrelink, addressed to him at an address in Woolloomooloo, which stated that, according to its records, the Plaintiff (had informed it) that he was living at the premises at Paddington (the address of those premises being that of the deceased) between 1 October 2012 and 20 January 2013. The letter goes on to state that the Plaintiff advised “Centrelink that Centrelink’s understanding is incorrect as you were living at [the address] until 15 June 2013”. (This evidence is almost the high point of the Plaintiff’s case on the allegation that he lived with the deceased, at least so far as the period between October 2012 and January 2013 is concerned.)

66. However, the document also revealed, inconsistently with the Plaintiff’s case, that between 22 January 1996 and 31 May 1999, his “Historical Home Address” was “Illawarra Rd, Marrickville”. (As stated earlier, there is no evidence that the deceased informed Centrelink that she was living in a de facto relationship with the Plaintiff.)

67. Nor is there any evidence that the Plaintiff disclosed to Centrelink, at any time, that he was living with the deceased in a de facto relationship. I infer from the letter to which I have referred, that he did not.

68. I consider that a relevant statement by a party, prior to the commencement of litigation, to public officials, whether consistent, or inconsistent, with a party’s case, may assist in the resolution of the issue of the nature of the relationship, but it is not determinative. Such statements may be taken into account as part of the mosaic of circumstances that the court must consider in reaching the conclusion: Hayes v Marquis [2008] NSWCA 10, per McColl JA, at [99].

69. To his affidavit of August 2014, there is also annexed a copy letter, dated 16 July 2014, from St George Bank, which refers to the Plaintiff being a customer of the bank since December 2012. The letter was sent by a “Customer Service Specialist” in Ashfield.

70. However, the letter also states that the Plaintiff’s “home address” is the Paddington property. It is not known when the Plaintiff’s home address was identified as such, but I infer that he provided that address in about December 2012. (That is consistent with the information contained in the Centrelink document.)

71. The Plaintiff’s affidavit, sworn shortly prior to the hearing stated that he was in receipt of a new start allowance of about $520 per fortnight, all of which he spends during the course of the fortnight. He did not provide any details of the nature of his expenditure. He has virtually no savings in his bank account ($117 as at 16 July 2014).

72. In support of his claim, the Plaintiff also relied upon an affidavit of Gail Kathleen Fitzmaurice, a Welfare Worker at a lodge run by the Wesley Mission, which lodge provides accommodation and support for homeless persons over the age of 18 years. Her current role is “basic welfare duties”. She had worked in palliative care and prior to that in disability care.

73. Ms Fitzmaurice stated, in an affidavit sworn in April 2015, that she first had contact with the deceased “approximately 15 years ago”, when the deceased was outside the front door of her premises at Paddington “looking at pigeons whilst she was feeding her cats”. Over subsequent years, she and the deceased had limited contact when each met whilst walking around the Paddington neighbourhood.

74. Ms Fitzmaurice wrote that she first had contact with the Plaintiff “probably 4-5 years after I made contact with Christine at her property”. Later on, she met the Plaintiff whilst he was walking with the deceased. She could not recall where, or when, she first saw them together. She stated that on the occasions she saw them together, they would be “armed (sic) in arm” or they would be holding hands. She concluded, from her observations that they were in some form of relationship. On occasions, she saw them at the local supermarkets, or in a sandwich shop, or together at a coffee shop. Often, she would see them eating together at the Captain Cook Hotel. They would be sitting close together on these occasions. She did not ever see them talking to any other person.

75. Ms Fitzmaurice also reported that she saw the Plaintiff at the supermarket when he told her that the deceased was in hospital and that he was buying things for them and for the cats. Subsequently, he told her that the deceased had died. She describes him, at that time, as being very emotional and being hardly able to speak.

76. Ms Fitzmaurice acknowledged in her affidavit that she “cannot say I ever observed [the Plaintiff] at Christine’s house.” She says that she only “saw [the deceased] a few times at the front of her house early on (15 or so years ago)”.

77. Ms Fitzmaurice considered the Plaintiff and the deceased to be a couple and regarded them as being “extremely close”.

78. Annexed to Ms Fitzmaurice’s affidavit was a diary note of a conversation which she stated she had, on 25 July 2014, with a person called “Steve from the NSW Govt Trustees”. I infer that this person was Mr Wilson to whom I have referred. The diary note, which was not objected to, is in the following terms:

“Wanted to know:-

How many times I saw them (Wallid (sic) & Christina) together

I said depends, could be once a week, or 3 times in a fortnight, or not for weeks or months and then I might see them 2-3 times in quick succession.

He asked when they became a couple

I said I didn’t know – they were friends, then they were a couple

He asked how I knew they were a couple

I explained they shared an intimacy that you could see, they were very affectionate, holding hands, whispering and sharing laughs and always together.

He asked me where they lived and how often I went to the house

I said I knew where they lived in [the Street], but that I had never been inside the house

He asked how long they had been a couple

I said I didn’t know – could be 10 years, could be 5, or 7 years, could be 14 years

I explained they were acquaintances, not in my close circle of friends – and that I often saw them together having coffee at local Cafes or at our local pub (Captain Cook) where the former owners served the local community nice and cheap meals (and you often met everyone in the neighbourhood there)

I explained that I was working and travelling and did not know Christina had passed away and was already dead and buried when I found this out.

I mentioned that I had been aware over the years that Christina was not well and spent times in Hospital, when I would encounter Wallid (sic) at Duffys doing the shopping or on his way to or from visiting her. He always spoke to me about her other true loves – her cats (as I am a cat-person and that is how I originally met and got talking and friendly to Christina)’

I mentioned that I knew Christina before I got to know Wallid (sic). I knew they were friends and she taught him improvements to his English – he was always in the background, but I didn’t know him as well as I knew Christina as he was a very polite man, but not a conversationalist.”

The Affidavit Evidence upon which the Defendant relied

94. The Defendant principally relied upon the affidavits of a number of witnesses, some of whom had dealings with the deceased in a professional capacity, for example social workers, a medical practitioner who treated the deceased in 2009, and also some of the deceased’s neighbours. Each presented a somewhat different picture to that presented by the Plaintiff and Ms Fitzmaurice.

95. Ms Bullen, a Branch Manager employed by the Defendant, swore her first affidavit, filed on behalf of the Defendant, as administrator, in which she set out the assets and liabilities of the deceased, at the date of her death. She swore a second affidavit on 18 July 2013 (approximately one month after the death of the deceased) in which she stated that she had attended the Paddington property on 25 June 2013 (one week after the death of the deceased) to take an inventory and to conduct a search for a Will. She states that she observed that:

“…

There was no electricity services on the property.

The property was in derelict and uninhabitable condition.

The property consisted of two bedrooms and one bedroom contained a double bed and the other bedroom was hoarded with old household contents.

There was only female clothing and female toiletries in the rooms.

There was no male clothing or toiletries in the rooms.

All paperwork and documents located in the room pertained to the deceased and there was no reference to any other person.

All assets in the estate are in the sole name of the deceased only.”

96. Mr Wilson swore an affidavit on 24 July 2014 to which was annexed the photographs that became Ex. 3, as well as a plan of the Paddington property. I have earlier referred to his affidavit, sworn on 27 April 2015, to which was exhibited a number of searches (Ex. 1).

97. Ms Joan Wakefield lived in the same street in Paddington as the deceased. She has lived there for over 70 years and stated that she believed that the deceased had lived there for about 40 years. She gave evidence that she knew the Plaintiff because “he comes around here quite a lot”. She stated that the first time she saw the Plaintiff was when he was delivering fruit and the deceased “would open her door and take a box from him and quickly close the door again”.

98. She stated that “some time in July 2013”, the Plaintiff came around and said that he had not seen the deceased and asked her what had happened to her. It was she who told him that the deceased “is dead and buried” (interestingly, a phrase used by Ms Fitzmaurice in a diary note annexed to her affidavit).

99. Ms Wakefield also stated that, in August 2013, the Plaintiff asked her whether she would be prepared to write something down to say that he had lived with the deceased but that she had refused stating that she “certainly would not because you did not live there with her”.

100. She also stated that, subsequently, she received a letter from Armstrong Legal, a firm of solicitors, which wrote that it was acting on behalf of the Plaintiff. She annexed a copy of the letter to her affidavit. She stated that, subsequently, she provided a statement to Ms Athanasopoulos of that firm. She was told by Ms Athanasopoulos that she “had a number of other statements from your neighbours”. (No statements, or affidavits, from any neighbours, were relied upon by the Plaintiff.)

101. (There is also in evidence a copy of a letter dated 19 December 2013, from Armstrong Legal to Mr Wilson referring to previous correspondence and advising that the firm had ceased to act for the Plaintiff.)

102. Finally, Ms Wakefield stated that in May, or June, 2014, the Plaintiff contacted her and asked her about the deceased’s furniture. She told him to contact the Defendant.

103. Josiah Sciascia was also a neighbour of the deceased, having lived in the same street in Paddington for almost 10 years. He was aware of the Plaintiff, recognising him as someone who “has come around a bit selling junk”. He saw the deceased “on a few occasions get some junk from him” but that “she would only open the door wide enough to get the stuff and then close the door immediately”. He never observed the deceased letting the Plaintiff into her house and he never saw any signs that anyone lived with the deceased.

104. Sid Rauwendaal is a Geriatric Social Worker at St Vincent’s Hospital in Sydney. The deceased was admitted to that Hospital in May 2013 having suffered a stroke. He was asked to see her to undertake a psychosocial assessment with a view to arranging discharge accommodation and possible presentation to the Guardianship Tribunal.

105. As part of his investigations, Mr Rauwendaal had visited the deceased’s property at Paddington. He states that at the time of his visit, there was no electric power on and he used a torch to carry out his inspection. He described the interior of the property as being “in a very poor condition”. He stated that the downstairs rooms were “cluttered with furniture and other objects, as well as refuse”. He described the stairs leading upstairs as “unsafe”. During the course of searching for a Will or Power of Attorney, he “opened a drawer and there was a dead cat inside”. He stated that he found nothing to suggest that any person other than the deceased was living at the Paddington premises. He found no trace of anyone having attempted to maintain the premises.

106. Mr Rauwendaal also stated that, at no time, did the deceased inform him, or indicate to him otherwise, that she had any de facto partner, or that she was dependent upon any person, or that any person was dependent upon her.

107. Annexed to Mr Rauwendaal’s affidavit is a report dated 4 June 2013 addressed to the Registrar of the Guardianship Tribunal. Relevantly, it provided:

“…

Mrs Coombes had been living… with a number of cats in her own two storey terraced home in Paddington since the 1975 divorce from her husband. Past reports from the City of Sydney Council and the Aged Care Assessment Team at Waverley indicate the house is derelict, structurally unsound, squalid, malodorous, with a pigeon population, and recent contact with her adjacent neighbours suggest the condition of the premises remains dire. It appears Mrs Coombes was not managing at home and was not coping with the practical side of independent living, relying only on one neighbour for shopping. The history indicates she was resistant to any external domiciliary support service and support. I understand that following neighbourhood complaints, in 2009 the City of Sydney Council Development Control Officer activated a plan to provide assistance with structural repairs and a forensic clean of the home. Subsequently the Catholic Health Care Severe Domestic Squalor Project Team attended and were denied access by Mrs Coombes. She threatened legal action based on harassment. Since that failed intervention, other community service providers have also been unsuccessful in attempts to offer assistance to Mrs Coombes.

Mrs Coombes has a likely diagnosis of a moderate to severe Alzheimer’s dementia with frontal features. Whilst failing to cooperate with him, Consultant Psychogeriatrician Dr David Burke attended and reviewed her at home in July 2009 (report attached). Dr Burke reported significant deficits such as disinhibition, paranoia, perseveration, difficulty planning and organising her life and arriving at appropriate solutions to arising life issues. These are possibly symptomatic of her cognitive impairment. There are indications that her functional and cognitive status is progressive and unlikely to improve, as well, her present medical prognosis remains stable but poor.

Mrs Coombes lives in her own home in Paddington and has been house-bound and reliant upon a neighbour for about seven years, refusing even his offer to walk outside. The home has been described as squalid and malodorous and inhabited by numerous cats, possibly rodents and given that it is open to the elements, by pigeons. Mrs Coombes’ diet and nutritional needs have often been self-sacrificed for the wellbeing of her cats. She currently receives no domiciliary care support and care workers have made numerous attempts to assist in the past but denied access.

I reviewed Mrs Coombes on 14th May and found her bed bound, aware, fluctuating between responsive and drowsiness and at times able to express verbally to direct questioning with single word responses. Given her resistance to care in the past, she initially appeared unrealistic in her desire to return home. She was cooperative although a poor historian and provided few details about how she might manage at discharge and became reluctant to discuss any proposed discharge options. She admitted to having a brother who was estranged for many years. Mrs Coombes said he lived in Paddington and provided his name and consented to social worker contact with him. Checks revealed Mr John Simpson lived at xxx Hargrave Street Paddington and following contact, he agreed to visit his sister on the ward. He said he was not in a position to accept responsibility for her future care however agreed to the proposed discharge plan being a respite placement subject to the outcome of a Guardianship Tribunal application.

… based on my enquiries there are no relatives or other suitable persons willing to manage Mrs Coombes’ finances or make decisions regarding her future welfare on her behalf. In the absence of others, I recommend that the Tribunal consider the Public Guardian be appointed to make lifestyle, health and accommodation decisions and the NSW Trustee to manage the ongoing financial implications.”

108. Ms Carolyn Begg, also a social worker, who had worked for the Aged Care Assessment Team (“ACAT”) at Waverley, provided an affidavit read in the proceedings. She had provided a report to the Guardianship Tribunal in respect of the deceased in October 2009. She stated that “[a]t no time during my dealings with [the deceased] did she ever mention that she had a de facto, or any type of partner, and I did not observe anybody living with her at her house at… Paddington. I also did not see or hear any indication that she was financially dependent on any other person or that anyone was dependant (sic) on her.”

109. The report, a copy of which was annexed to her affidavit, identified investigations that referred to the deceased’s home at Paddington as “squalid and dilapidated”. The report provided some background information that the deceased had provided:

“Ms Coombes is a 76 year old divorced lady who resides alone in her own two storey terrace which adjoins other properties. She says she has lived in the premises since 1975 which was the year of her divorce and the same year she had a mastectomy for breast cancer. She says she has not sought medical attention since and does not take any medication. There is no local doctor and no other medical history was disclosed.

Ms Coombes receives and (sic) Aged Pension. She has no children and reportedly no contact with her brother and sisters. She says that she has two cats living with her. Ms Coombes said that she had been an art teacher for many years and is misunderstood by people because she is an artist, hippy and psychic. She presents as being a loner who leads a reclusive lifestyle with no formal support. She was unable to be specific about having friends. She dresses in several layers of clothes as she feels the cold and looks unkempt. She reports being independent with all aspects of personal care, toileting and is continent.

Ms Coombes denies any problems with mobility, short-term or long-term memory or depression and has no psychiatric history. She feels that any paranoia she expresses is reasonable given her situation with her neighbours. No drug or alcohol issues were detected. There are no reported problems with hearing or speech. Ms Coombes reports having had one fall in the past twelve months caused by not looking where she was walking and sustained and (sic) injury to her knee. This was still bothering her on the day of assessment. She also reported needing a new denture and difficulty with chewing. She also said that she requires new reading glasses and her toe nails need cutting.

Ms Coombes also reports being independent with all activities of daily living and is able to access public transport. She said that she is able to attend to her affairs however confirmed that she has limited savings and financial worries. She said that there have been times when she has needed to ask for a food parcel and that she often goes hungry. She reports weight loss and does not take vitamins or supplements.

At the ACAT Assessment, Ms Coombes declined to complete a Mini Mental State Examination but scored 5/5 correct answers in relation to orientation to year, season, date, month and day of the week. She also declined an attempt at a Geriatric Depression Scale Assessment. She was observed by me as looking pale and had a significant red skin irritation around her eyes. She was polite and happy to talk about herself but lacked insight into the gross state of her environment.”

110. The report goes on:

“…

Ms Coombes’ situation is one of severe squalor, the residence is in an uninhabitable state and unsanitary condition. The front door access is obstructed because of the volume of above waste (sic) height clutter from excessive hoarding; Items appear to be no longer in working order, or in reasonable condition to keep. The floor space left is inaccessible and there is no clear passage through. The premise is unbearably malodorous, dark, dirty and dusty covered in cobwebs and cat hair. The upstairs balcony houses several pigeons and is covered in droppings. It is apparent that the premise is infested with flees (sic) from the cats, lice from the pigeons, cockroaches and rats. Protective clothing would be required for anyone entering the premise. This situation presents occupational health and safety issues for workers. Cleaning to return the premise to a habitable standard may not be possible and Ms Coombes does not wish to receive help.

From observation and self-report there is evidence of self-neglect as Ms Coombes has not seen a doctor since 1975, and most likely has untreated medical problems such as her eye irritation. There is also concern that she maybe (sic) nutritionally compromised because she says that she is only able to afford to eat one meal per day as she needs to pay for cat food.

The condition of cats is also of concern as veterinary attention could not be afforded.

Ms Coombes reports that she has no hot water and that her toilet only works ‘manually’, requiring water to be poured into it.

There is no washing machine or fridge. There is no phone. She reports that she does have electricity, lights and a working stove.

There are several holes in the roof which rain comes through and other structural damage and defects. Ms Coombes states that she has been unable to afford necessary maintenance. She is in need of financial counselling, support and material assistance.

Neighbours have made formal complaints about the smell of sewage possibly from ruptured sewage pipes caused by an overgrown tree which has taken over the entire backyard and extends into the back section of the premise. There are also broken down pipes and problems with storm water drainage.

The premise has no smoke detectors and old electrical wiring… is also a concern. The state of the premise presents a fire hazard and safety risk to Ms Coombes and adjoining neighbours.”

111. I have earlier referred to Dr David Burke, who was the Senior Staff Specialist in Psychogeriatrics at St Vincent’s Hospital. He, with Dr Leticia Aydos, had visited the deceased at her home in Paddington in July 2009 and produced a joint report, a copy of which was annexed to his affidavit. Relevantly, the report provides:

“…

She was a pleasant lady who was suspicious of our visit as she knows her neighbors (sic) have complained about the state of her house. She resisted us entering her place, however eventually invited us in motivated by the possibility of having some of the problems fixed.

Her house was in severe squalor. The place was cluttered with furniture and possessions, and there was little space to move around. It was also very unkempt with dirty cutlery and dishes everywhere, spider webs and a thick layer of dust on the floor and over the furniture. She had two cats and there were probably other animals which we did not identify, possibly rats. We did not go upstairs, but we are told there are birds nesting there. We suspect she does not use the (downstairs) toilet during the night and we don’t know how she disposes of urine and feces (sic) upstairs. The backyard was completely taken up by a large tree and was dark, dump (sic) and covered in moss.”

112. Dr Burke was of the opinion that the deceased was “extremely resistant to even professional services being provided to her”. He did not see any indication, and nor did the deceased “indicate in any way that she had a de facto partner or anyone living with her or that she was dependent on someone else or they were dependent on her”.

113. On the second day of the hearing, counsel for the Defendant sought to file in court, an affidavit of Martina Sommer, a neighbour of the deceased. Ms Sommer was the person (who the Plaintiff accepted, in cross-examination, was “Martina”: T59.05-T59.09), to whom he said he had spoken on 14 April 2013, and whom he had requested to call an ambulance. (I shall return to the Plaintiff’s evidence about the date of the conversation.)

114. Because a copy of the affidavit had not been served on the Plaintiff until shortly prior to the application to file the original, and as it was late in the day, I indicated that the Plaintiff should consider the contents of the affidavit overnight, and on the next day inform the court whether he had any objection to it being filed in court and to it being read.

115. At the commencement of the third day of the hearing, the Plaintiff said that he had no objection to the affidavit of Ms Sommer being filed or read. He stated that he required Ms Sommer to be available for cross-examination. He denied that he would suffer any prejudice. Accordingly, leave was granted to the Defendant to file in court the affidavit of Ms Sommer. I then dealt with the objections made by the Plaintiff to parts of the affidavit.

116. In her affidavit, Ms Sommer stated that she had lived, with her partner, immediately next door to the deceased for about 9 years. She said that to her observation, the deceased lived alone and always kept very much to herself. She said that she believed the Plaintiff to be a man who she had “seen near my home several times in the year before [the deceased] died”. She believed that the last time she had seen him, was about 3 weeks before the deceased had been taken away to hospital in May 2013. Subsequently, when she saw him again, she had told him that if he “hassled” the deceased again, she would call the police.

117. Ms Sommer stated that on Sunday, 12 May 2013, (which was Mother’s Day), she had been concerned about the deceased, not having seen, or heard, from her for three days. She and some other neighbours knocked on her door, but could not attract the deceased’s attention. After allowing a period of time, in case the deceased was out, she called the Police who attended with the ambulance. There were problems moving the deceased and they had to lift her over the top floor balcony railing to get her out of the house.

118. Ms Sommer in her affidavit denied that the Plaintiff had alerted her to call the ambulance. She said she had not seen him at all at any time in the period between 9 May 2013 and 12 May 2013.

Credibility of the Witnesses

119. There was no dispute that the onus of satisfying the Court that a domestic partnership, and therefore, that a de facto relationship existed between the Plaintiff and the deceased for at least two years continuously before her death, rested with the Plaintiff.

120. Credit findings assume a greater significance in cases such as this one. Because of the position of the parties and the witnesses, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), which version is the more likely and plausible. It is also the case that a de facto relationship means a relationship which exists in fact and that is established by determining what the parties to the alleged relationship are doing.

121. The principal evidence about what the deceased and he were doing came from the Plaintiff himself. On the question whether I accept his evidence, I remember that in Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911, Plowman J, at 916, stated:

“... [N]ot only in this case is the onus of proof on the defendants, but I am enjoined by authority to approach their story with suspicion, having regard to the fact that the other actor in this story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place.”

122. (The Defendants in that case were in the position of the Plaintiff in this case, bearing the onus of proof.)

123. In Richardson v Armistead [2000] VSC 551, Hansen J, at [36], stated that:

“... [I]n such circumstances the self-interest of a claimant to give evidence favourable to his or her case is obvious... in such a case much caution is exercised before the evidence of the claimant is accepted.”

124. Also, I remember what Bryson AJ said in Zahra v Francica [2009] NSWSC 1206, at [1]:

“In these proceedings the plaintiff makes claims against the deceased’s estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

‘... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.’”

125. Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:

“An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.”

126. Also see, Ashton v Pratt (No. 2) [2012] NSWSC 3, per Brereton J, at [18].

127. I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

“When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342.”

128. The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].

129. What Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, at [119]-[120] must also be remembered:

“… Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties’ morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker’s ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.

Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of not real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law.” [Footnotes omitted]

130. I should also refer to an article by the former the Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”

131. I have the impression that the deceased was an eccentric, who was regarded as such by members of the community who observed her. I must not forget the overall circumstances and way of living of the parties to the alleged relationship during what is said to be the duration of the relationship. In this regard, I have weighed the Plaintiff’s evidence that the deceased, to all intents and purposes, was a recluse, who did not socialise with anyone, including her family, or her neighbours, and that even if she may have talked to some of her neighbours, on occasions, she was not close to any of them and his assertion that her neighbours did not wish to get close to her. The Plaintiff described the deceased and himself as “free spirits” who did not like being told what to do by anyone else. I have attempted to avoid consideration of the evidence based upon stereotypical social assumptions.

132. Yet, some of the Plaintiff’s evidence cannot be explained on the basis of a particular view of the character and personality of each of the Plaintiff and the deceased. I certainly have difficulty in accepting at face value all of his affidavit evidence. It is clear that some of the Plaintiff’s evidence was proved to be wrong. In some respects, I did not find the Plaintiff to be a credible witness. Yet, in some areas I do accept his evidence.

133. The Plaintiff asserted that he lived with the deceased, on a full-time basis, between March 1996 and May 1999. (He says that he moved from Marrickville, into the deceased’s home, because he was evicted because he was in arrears of rent.) That the deceased, who is recorded as being reclusive (at least later in her life), would open her door to a virtual stranger within a few months of meeting him, seems somewhat implausible. That she would give him money also shortly after meeting him also seems somewhat unlikely.

134. I also find it relevant that the Plaintiff only moved out of rented accommodation in Marrickville, because of an eviction – there was no independent decision to move in with the deceased.

135. Furthermore, his evidence about this period, and in respect of the following period, it is fair to say, lacks detail and colour.

136. I have earlier referred to the Centrelink document, which was annexed to the Plaintiff’s first affidavit which stated that his “Historical Home Address” between 22 January 1996 and 31 May 1999 was noted as “Illawarra Rd, Marrickville”.

137. It is extremely difficult to accept the Plaintiff’s assertion when there is simply no other evidence, oral or documentary, to support it; where a document upon which the Plaintiff relies, suggests something that is contrary, and where a neighbour, who was friendly with the deceased, and who had known her for many years, including the period referred to by the Plaintiff, categorically denies the proposition that the Plaintiff ever lived with the deceased. That his evidence lacks detail does not assist.

138. Accordingly, I cannot be satisfied that the Plaintiff lived with the deceased, in a de facto relationship, in the period between 1996 and 1999. In fact, I cannot be satisfied that he even knew the deceased during this period.

139. Then, on the Plaintiff’s own evidence, between about 1999 and about 2012, he resided, at different places, for different periods of time. He says that, until late in 2012 he lived in different rented accommodation, where he would stay for one or two nights per week, but at other times, he would live with the deceased at the Paddington property. He does not appear to have had any friends, or family, during this, or any other period, with whom he associated.

140. Again, there is no objective evidence that supports his assertion of living with the deceased during this period. To the contrary, there is some evidence that does not support his version. I refer, in particular, to Ex. 4, which includes a summary of attendances by the Plaintiff, upon a general practitioner, or dentist, during the period between 1 May 2010 and 30 June 2014. The only general practitioners, and others, whose practice the Plaintiff attended, were in the suburbs, other than Paddington (or its immediate environs), at the relevant times. Similarly, the pharmacies at which the Plaintiff attended to have prescriptions filled were in suburbs other than Paddington and its immediate environs. One might have thought that, at least in the 13 year period that the Plaintiff said he was living, for the most part, with the deceased in the Paddington property, there would be some objective evidence from this source of him having attended a doctor, a dentist, or a pharmacy in the local environs.

141. Then in October 2012, again, he was evicted which event prompted, it would seem, his alleged move to the Paddington property. He states “… I become homeless as, so when they evicted me I went straight away to my apartment place, which is number 45 house” (T75.23-T75.25).

142. As when the Plaintiff had been evicted from the property in Marrickville in 1996, his alleged move to the Paddington property was not voluntary, nor was it a decision made by both the deceased and the Plaintiff, as a couple, seeking to develop their relationship.

143. I have earlier referred to the copy letter written in 2014, annexed to the Plaintiff’s affidavit, which suggests that he conducted a bank account with the Ashfield branch of the Bank, which he had opened in December 2012. If, as he says, he was living with the deceased at the time he opened the account, one might have expected him to have opened the account at a branch closer to Paddington.

144. Thus, I cannot be satisfied that the Plaintiff was living with the deceased at the Paddington property, on a part time basis, in this period. This, and my earlier conclusion regarding the alleged relationship, is also supported by the following credit findings.

(b)    the amount and nature of the provision, and

(c)    the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d)    any conditions, restrictions or limitations imposed by the Court.

310. The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner the Court thinks fit” (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

311. Section 66 of the Act sets out the consequential and ancillary orders that may be made.

312. Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.

Other Applicable Legal Principles – Substantive Application

313. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.

314. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the court’s function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]:

“Fairness and equality are not touchstones for relief under the Succession Act.”

315. The court’s role is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court’s role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.

316. In this case, the pre-ordained scheme for distribution of the deceased’s estate is not according to the wishes of the deceased as expressed in a Will, but according to the regime established by statute. It was said in the NSW Law Reform Commission’s, Uniform Succession Laws: Intestacy (April 2007), at 1.23:

“The rules of distribution on intestacy are, at the most general level, the community’s view of what should be done with the estate of a person who has died intestate. The parliaments of the various Australian jurisdictions, as representatives of their communities, have established and amended the rules from time to time. One of the purposes of this Report is to determine the extent to which any proposed scheme of distribution meets the collective requirements of the Australian community.” [Footnotes omitted]

317. In Re Estate of Bridges (1975) 12 SASR 1, Bray CJ noted:

“In the case of an intestacy, as much as in the case of a will, it seems to me that Parliament has indicated its intention that the scheme of things set up by a testator in his will, or by the law of the State in the event of intestacy, shall be interfered with so far as is necessary to make adequate provision for the proper maintenance, education and advancement of the claimants specified in the Act, but no further. It is true that when the persons entitled on intestacy are the surviving spouse and legitimate children of the deceased as opposed to collateral relations the speculation that the deceased may have intended to die intestate may have more cogency, but nevertheless I repeat that I think the correct approach is as I have said. I think that Parliament no more intended to grant an unlimited liberty to recast dispositions resulting from the law of intestacy on moral grounds than it did to give a similar liberty to recast dispositions made by will.”

318. In Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191, at [38], Kenneth Martin J, after referring to the passage in Re Estate of Bridges, noted:

“So, in going about the task of resolving this Inheritance Act application... I must respect the effect of the intestacy laws of the day in terms of the result they would deliver...”

319. I respectfully agree with what Bergin CJ in Eq wrote (omitting transcript references), in In the Estate of the late Anthony Marras, at [116]-[117] and [124]-[125]:

“It was submitted that s 113 of the Act is just one of the mechanisms that the legislature has used to protect the interests of a surviving spouse… It was submitted that it was also notable that the formula in s 106 in respect of the statutory legacy provides an adjustment based on the Consumer Price Index (CPI) and also makes interest payable after one year at a rate which is 2% higher than the last relevant cash rate published by the Reserve Bank of Australia. It was submitted that the previous applicable provisions in the Probate and Administration Act 1898 contained similar protections for the surviving spouse.

At the outset of his final submissions Mr Mantziaris contended that the statutory regime on intestacy provides a very definite intention to preserve the real value of what he referred to as the ‘minimum irreducible portion of the estate for the surviving spouse’. It was submitted that if the Court is to make orders for provision under s 59 of the Act for any of the applicants then it should not do so by interfering with that so called ‘irreducible minimum’. Mr Mantziaris submitted that the intention of s 113 of the Act is that the statutory legacy (the irreducible minimum) is protected from the Court’s interference, where the value of the estate exceeds the statutory legacy. However in submissions in reply Mr Mantziaris clarified his position. He said that he did not suggest there was an ‘absolute prohibition on going into the statutory legacy’.

…

I am of the view that Mr Mantziaris’ submissions in this regard should be rejected. The intestacy provisions of the Act may be viewed as though the deceased had made a will whereby he directed that his estate should be distributed as on intestacy. The fact that such distribution is statutory does not assume any particular importance: Re Russell [1970] QRWN 55 at 56. Just as there is no basis for cocooning any aspect of a testator’s proposed distribution of the estate under a will as an irreducible minimum, if the Court reaches the view that it is necessary to interfere with the distribution to ensure adequate provision is made, there is no basis for cocooning any particular part of the distribution under the statutory provisions on intestacy.

I am not satisfied that a reasonable reading of the Act leads to the conclusion that a Court may not interfere with the statutory legacy of a surviving spouse, if in all the circumstances the provision under the rules of intestacy in respect of the children of the deceased is inadequate. The Court is able to interfere with the statutory regime, including the statutory legacy, in so far as it is ‘necessary to make adequate provision’ to any applicant under s 59 of the Act: In the Estate of Bridges (deceased) at 5-6. Whether such interference is justified will depend upon the circumstances of the particular case.”

320. The court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair.

321. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

322. As Allsop P said in Andrew v Andrew, at [16]:

“If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court.”

323. Barrett JA, at [95], wrote:

“Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that ‘community expectations’ play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA):

So long as he complies with community expectations and what is sometimes called ‘moral duty’, the deceased is able to leave his property as he wishes.”

324. In Chapple v Wilcox, Basten JA, at [12], and by Barrett JA, at [63]-[64], emphasised the central role played by “community standards” or “community expectations” in any decision whether to take the significant step of overriding the expressed wishes of the deceased.

325. How the community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]:

“As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of ‘prevailing community standards of what is right and appropriate’. Views will undoubtedly vary within the community as to the weight to be given to a testator’s wishes as expressed in the will: Andrew v Andrew at [35].”

326. Thus, “there are difficulties for the Courts in making their own unaided assessment of current community attitudes in a complex and changing social environment”: Williams v Aucutt [2000] 2 NZLR 479, at [44]. As was said by White J in Slack v Rogan; Palffy v Rogan, at [125]:

“I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least insofar as it goes beyond allowing provision to be made in favour of spouses and minors or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew, the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able-bodied son, or that a widow’s claim is paramount, have been rejected. To say that the court itself is the spokesman for the fair and reasonable man or woman in the community is to acknowledge that in truth there is no ascertainable external community standard to guide the decision.”

327. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

328. The Act is not a “Destitute Persons Act” and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word “proper” requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]).

329. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased’s obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164.

330. All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].

Qualifications on General Principles

331. In relation to the claim for a family provision order, as I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as “principles” to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

332. As the Full Court of the Family Court wrote in Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-550, after referring to both the first instance and appellate decisions, at [94]-[95]:

“Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.

It is also to be remembered… that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially.”

333. It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts.

334. As Lindsay J said in Verzar v Verzar [2012], at [131]:

“Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19].”

Submissions

335. It is fair to say that the court was not well assisted by the submissions of either party. That is, perhaps, more understandable so far as the Plaintiff is concerned, as he is a litigant in person. It is far from understandable in relation to the Defendant, whose counsel maintained dogmatically, and without an apparent appreciation, or, so it seemed, apparent consideration, of all of the evidence. The task of the court has not been made any easier by this approach.

336. When asked what provision should be made to the Plaintiff out of the deceased’s estate, in the event that he was not found to be the de facto of the deceased and relied on his family provision claim, the Plaintiff said, at T221.12-T221.14:

“… I am homeless. I had no possession. I have no place to live. I would ‑ since she become sick until now I’m grieving. I had no place ‑ I would like to go back to my property, my house.”

337. In answer to questions from the Bench concerning the witnesses called for the Defendant, the Plaintiff submitted that they should not be believed. He submitted that Ms Sommer was not telling the truth because “she considers us unclean” (T209.25-T209.42) and because she did not like him: T201.02-T201.05.

338. In relation to Ms Wakefield, he simply said that she had “colluded” with the other witnesses and that she did not like him either: T210.13-T210.26. He said that she was not a good friend to the deceased.

339. He also said that if he returned to the Paddington property, the neighbours were all “scared that I’m going to be same like my partner”: T210.34-T210.36. He maintained throughout his submissions, that the other witnesses did not like him and that this was a reason for giving false evidence.

340. The Defendant, in his written submissions, denied that the Plaintiff was entitled to the relief he claimed, or any relief at all. It was submitted that he could not succeed in his intestacy claim as he was not in a de facto relationship with the deceased immediately before her death, or that such a relationship had been in existence for a continuous period between 13 June 2011 and 13 June 2013. Nor could the Plaintiff succeed in his family provision claim as he was not an eligible person under s 57(1)(b), s 57(1)(e), or s 57(1)(f) of the Act.

341. However, the Defendant submitted that if the court did find that the Plaintiff was an eligible person, then the Defendant conceded that the Plaintiff had established “factors warranting” under s 59(1)(b) of the Act. If this were to occur, the Defendant submitted that provision of $15,000 would be adequate and proper taking into account the following circumstances:

(a)   There was at best only a brief period when the Plaintiff used the Paddington property as his home address and for his mail for Centrelink.

(b)   The deceased had no responsibility or obligations to the Plaintiff, although she might have given him a few hundred dollars over the years to “help him out” but more likely the sums were for fruit and vegetables and “junk” that he was selling.

(c)   The estate is small, as the Paddington property would be sold for land value only taking into account its derelict nature, and given the liabilities and charges to come out of the sale.

(d)   A lump sum of $15,000 would be a sizable sum for his maintenance and advancement, and it is not clear how provision for future education arises.

(e)   The Plaintiff does not appear to be cohabiting with any other person, and no one else appears to be liable to support him.

(f)   There is no medical evidence that the Plaintiff suffers from any physical, mental or intellectual disability.

(g)   The Plaintiff made no contribution, financial or otherwise to the acquisition, conservation and improvement of the estate of the deceased, or to her welfare.

(h)   If the deceased assisted the Plaintiff in any way during her lifetime, such provision should be taken into account in reducing any provision that the Court is now minded to consider making.

(i)   There was no testamentary document made by the deceased during her lifetime suggesting an intention to provide for the Plaintiff upon her death.

342. (j)   Any maintenance that may have occurred (if a finding of eligibility is made) was minimal.

343. During oral submissions, counsel for the Defendant was asked specifically to explain how it could be submitted that the Plaintiff had never been allowed access to the Paddington property in light of the Plaintiff’s evidence correctly identifying different rooms in the property from photographs. He responded that the Plaintiff had been unable to identify the one “critical” (No 6) photograph. He submitted that this photograph was a room downstairs when the Plaintiff had described it as an upstairs bedroom.

344. Counsel could not explain how the Plaintiff was able to differentiate, in the photographs, between the bedroom facing the backyard and the bedroom facing the street. He simply submitted “Because he’s seen the photographs and so forth” (T224.01) and later “He might have been in there once… I don’t know” (T225.47) and that “the photos he got right were easily identifiable as one being a kitchen and the other being a room upstairs with a bed in it with a balcony” (T226.21- T226.23).

345. The Defendant instead relied upon the evidence of Ms Wakefield and Ms Sciascia, having “never seen [the Plaintiff]”, and the Plaintiff’s incorrect description of the bedhead, after having deposed to a long, ongoing sexual relationship with the deceased and residing at the Paddington property, at least 5 or 6 days per week, since 1996.

346. Counsel also submitted that the objective documents in evidence should be favoured over the Plaintiff’s evidence. In this regard, the Centrelink document provided, at best, that the Plaintiff was living at the Paddington property from 1 October 2012 until 20 January 2013, and thereafter, the Centrelink records show that the Plaintiff had no fixed address in the suburbs of Sydney, Burwood and Redfern up until 17 December 2013.

347. In relation to the Plaintiff’s witness, Ms Fitzmaurice, the Defendant submitted that her evidence needed to be weighed against the evidence put forward by the Defendant’s witnesses, and the fact that she recognised that she was an advocate for the deceased and the Plaintiff.

348. It was also submitted that one of the fundamental factors was the absence of a mutual commitment to a shared life demonstrated by the failure of the deceased to identify the Plaintiff, or a relationship with the Plaintiff, to Ms Begg or Mr Rauwendaal, especially after having spoken of her brother and sister.

349. Regarding the performance of household duties, the Defendant submitted that “the pictures speak for themselves” (T233.15); the property was squalid, unhygienic and unfit, as observed by Ms Begg and Mr Rauwendaal.

350. In relation to the Plaintiff’s evidence that he had visited the deceased after she had been transferred from the Hospital to the Nursing Home in Brown Street Paddington, counsel said: “All I am saying is that he could have gleaned the information from somewhere else”. He made a similar submission in relation to the Plaintiff’s evidence about the deceased being unable to move her left side. That had not been put to the Plaintiff in cross-examination.

351. In relation to the information that the Plaintiff had provided in his affidavit about the background of the deceased, counsel submitted (at T234.27-T234.31): “All I am required to show or rebut is that there was a de facto relationship at the time of death or immediately at the time of death or in the 2 years continuous in the period of time. I don’t have to go and describe the relationship as some other thing that satisfies how Mr Sadiq may or may not have known.”

Determination

352. In many cases, it is relatively easy to conclude that a couple is in a de facto relationship because the facts make it obvious that there has been the requisite merging of lives, such as where they are living in the same accommodation, sharing sexual conduct, and where they proclaim that they are a de facto couple. Often, the parties, themselves, at the hearing, do not dispute the existence of such a relationship.

353. In other cases, such as this one, it is more difficult to determine whether the relationship should be classified as a de facto relationship if the persons alleged to be in such a relationship, live in an unconventional manner, or when the relationship finds expression in a different type of domestic arrangement. The cases reveal the plethora of the different types of relationships and the different levels of domestic and emotional arrangements between adults.

354. It is even more difficult for the court to determine the nature of the relationship, where one of the parties to the alleged relationship is dead, and much depends upon acceptance of the uncorroborated evidence of the other. However, even in what might be regarded as a non-traditional relationship, the court is required to evaluate the evidence to determine whether the legal threshold is met and that is determined by considering the facts in the light of the Act. In this regard, a common sense objective judgment should be applied evaluating all of the circumstances.

355. The Plaintiff’s cross-examination of the other witnesses, and the submission that each had given false evidence, should not be accepted. In relation to Mr Rauwendaal and Ms Begg, each of whom was a professional and whose evidence was the subject of a contemporary record, there is not a skerrick of evidence to support the Plaintiff’s view of him and her. Whilst in relation to the neighbours, there were some signs of resentment towards the Plaintiff, that resentment went more to the fact that the Plaintiff was making a claim against the deceased’s estate, rather than any ill-will towards him personally.

356. Having considered all of the evidence as well as the submissions, I am unable to conclude that the Plaintiff and the deceased lived in a de facto relationship at any time. I am also unable to conclude that the Plaintiff lived with the deceased in either of the earlier periods that he asserted. I have identified the evidence that leads me to conclude that he did not do so.

357. Even if I were to accept the contents of the Centrelink document as proving the truth of the assertion that he was residing in the Paddington property in the period between October 2012 and January 2013, the period specified is not “a continuous period of two years prior to the death of the deceased”. Nor is January 2013, the date of death of the deceased. (There is simply nothing in the evidence, other than the Plaintiff’s assertions, to suggest that he lived with the deceased prior to that time, and from 2009 and because of the evidence I do not find that he was living with the deceased in May 2013).

358. Also, as stated earlier, even if the deceased provided to the Plaintiff, on one or more occasions, financial or other assistance such as accommodation to alleviate hardship, that does not mean that they were in a de facto relationship.

359. In any event, the court must weigh the information in the Centrelink document, which could only have been provided to Centrelink by the Plaintiff, with what was noted in contemporaneous medical records, relating to the deceased in 2009 and in 2013, which statements, in my view, are likely to have been provided to the author of each by the deceased.

360. That the Plaintiff does not appear to have disclosed any de facto relationship with the deceased to Centrelink at any time is also relevant, and, perhaps, indicative of his knowledge that any relationship was not de facto in nature. He would have had many opportunities to disclose the information.

361. Furthermore, the information about the criteria relied upon by the Plaintiff are dependent almost entirely upon my acceptance of the Plaintiff’s evidence. I am unable to accept his evidence in its entirety. The events of May 2013, including the failure by the Plaintiff to see the deceased whilst she was in hospital, and even later, on only one occasion, casts grave doubt, in my mind, on the closeness of the relationship and the suggestion that there was an intertwining, or merging, or union, of their lives.

362. Ms Wakefield’s evidence of events post-death involving the Plaintiff, which I also accept, does not assist the Plaintiff in this regard. In any event, I found the evidence of the neighbours far more persuasive, particularly as to the assistance that each provided to the deceased.

363. Of course, I have reminded myself of Ms Fitzmaurice’s evidence. In my view, her evidence, overall, must be considered in the context of her being a stranger to each of the Plaintiff and the deceased. She saw them only occasionally, in passing, and relatively infrequently. At face value, her evidence simply leads to a conclusion that she observed the Plaintiff on some social outings with the deceased, and, on some other occasions, elsewhere. Her evidence also suggests that there was some demonstration of physical contact between the Plaintiff and the deceased. It might even show that the Plaintiff demonstrated some concern for the deceased, and that he tried to assist her on, occasions, in purchasing food for her cats. Overall, it does not elevate the relationship into a de facto relationship.

364. Nor does Ms Fitzmaurice’s evidence go far enough in corroborating the assertion of the Plaintiff that there existed a de facto relationship. But for her evidence, the relationship between the Plaintiff and the deceased was clandestine, and according to the Plaintiff, suggests that they spent very much time together, as distinct from time spent socialising as a couple. Certainly, none of the deceased’s neighbours saw any sign of the Plaintiff in the deceased’s life. According to each of them, the deceased lived by herself. It appears to be the case that it was only to Ms Fitzmaurice that the deceased and the Plaintiff presented themselves as a couple.

365. The evidence from Ms Fitzmaurice must be balanced by reference to the other evidence in the case. Although I am satisfied that the Plaintiff had some form of relationship with the deceased, I do not accept that they were in a de facto relationship at any time. It seems to me that any relationship was utilitarian and pragmatic.

366. Whilst there can be no doubt that the Plaintiff and the deceased were not married to one another, or related by family, I find that the Plaintiff was not living with the deceased for the requisite period, and, in any event, that they did not “live together as a couple”.

367. It follows that the Plaintiff is not the “spouse” of the deceased at the date of his death, with the result that his claim to the whole of the estate on intestacy must fail. It follows, also, that he has no “interest” in the estate to enable him to obtain an order for the revocation of the grant of Letters of Administration made to the Defendant.

368. For the same reasons, I am unable to conclude that the Plaintiff falls within the category of eligibility relied upon in s 57(1)(b) of the Act, namely that he is a person with whom the deceased person was living in a de facto relationship at the time of the deceased’s death.

369. Because of the conclusion that he was not living with the deceased, he is not a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death. Whilst he may have visited the Paddington property, and, perhaps, even stayed there overnight, on occasions, that is insufficient to establish he was ever living there. I am not persuaded by the Centrelink document and the Plaintiff’s evidence that he was a member of her household during the period between October 2012 and January 2013.

370. In any event, the Plaintiff’s assertions that he looked after, and cared for, the deceased are somewhat inconsistent with the other evidence in the case. In this regard, I prefer the evidence of each of the neighbours regarding the assistance that she and he, respectively, provided to the deceased. As submitted, in other respects, the photographs, and the evidence about the presentation of the deceased speak for themselves.

371. Nor can I find that the Plaintiff was a member of the household of which the deceased was a member. I shall not refer to the evidence that it inconsistent with the assertion made by the Plaintiff relevant to this period. However, as stated previously, as a member of the household, for the period alleged (even if it were October 2012 until the middle of January 2013), one might have expected him to give evidence of having a key to the Paddington property.

372. The only evidence that the Plaintiff was wholly or partly dependent upon the deceased again is his own. None of the banking records of the deceased were produced to suggest regular withdrawals, and the Plaintiff, himself, does not produce any records that, otherwise, demonstrate the regular receipt of funds.

373. Turning then to factors warranting the making of the Plaintiff’s application, had I found that the Plaintiff was an eligible person within s 57(1)(e) or s 57(1)(f) of the Act, I would have had to consider this in light of the Defendant’s concession. However, since I am not so satisfied, it is not necessary for me to do so. (I should say, however, that despite the concession made, I might have had some difficulty reaching the same view. That the deceased did not inform any person of the alleged relationship with the Plaintiff does not suggest to me that he had the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.)

374. It follows, because of my conclusions, that the Plaintiff’s claims must be dismissed with costs. It also follows that the injunction granted by Robb J should now be dissolved.

375. The court makes the following orders:

(i)   The Plaintiff’s Statement of Claim is dismissed.

(ii)   The Plaintiff is to pay the Defendant’s costs of the proceedings.

(iii)   The interlocutory injunction granted by Robb J on 24 July 2014 restraining the Defendant from selling the Paddington property is hereby dissolved.

(iv) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

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Amendments

10 June 2015 - "a eligible person" amended to "an eligible person" in Paragraph 341

Decision last updated: 10 June 2015