State Trustees Ltd v Bedford

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0144

STATE TRUSTEES LIMITED	Appellant
	v
LISA JOSEPHINE BEDFORD (As representative of the Estate of KIM DIANE WHITEHEAD, deceased) & ANOR	Respondents

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JUDGES	NEAVE and TATE JJA and DAVIES AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 September 2012
DATE OF JUDGMENT	16 November 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 274
JUDGMENT APPEALED FROM	Whitehead v State Trustees Ltd [2011] VSC 424 (Bell J)

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TESTATOR’S FAMILY MAINTENANCE – Appeal – Claim by intimate female companion of deceased and child by another man – Whether judge erred in finding that relationship between claimants and deceased represented social unit tantamount to family –Administration and Probate Act 1958 Part IV – Judge did not err in finding that deceased had responsibility to make adequate provision – No error in orders made for provision – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A G Southall QC with Mr A Bolkas	State Trustees Limited
The First Respondent	Mr R N J Young	Zeljko Stojakovic
The Second Respondent	Mr M C McKenzie	Rosemarie Ryan Lawyers

NEAVE JA:

This is an appeal against the decision of a trial division judge under Part IV of the Administration and Probate Act 1958 (‘Act’) ordering that provision be made from the estate of the late Barry Robert Samson (‘Barry’)[1] for the proper maintenance and support of the respondents, Kim Whitehead (‘Kim’) and her nine year old son, Alex.[2]
[1]The parties and witnesses are described by their first names. No disrespect is intended. The deceased man is described as ’Barry’. Kim gave evidence that the deceased’s official given name was ‘Barrie’, but that he always spelt it as ‘Barry’.
[2]At the time of trial, Alex was aged 9 years and the application was made through his litigation guardian, Lorraine Whitehead, who is his maternal grandmother.

Kim died after the hearing of the appeal, but prior to the handing down of judgment. On the date of hand down of judgment, the Court ordered that Kim’s sister, Lisa Josephine Bedford, be substituted as the first respondent in the appeal to represent Kim’s estate.[3] However, reference is made throughout these reasons to Kim as the first respondent.
[3]The will prepared by Kim’s solicitors on instructions given prior to her death, which was never executed by Kim, states that her mother, Lorraine Whitehead, be appointed executor and if Lorraine is unwilling or unable to serve as executor or predeceases Kim, Lisa Bedford be appointed a ‘sub-executor’. Lorraine Whitehead has sworn an affidavit indicating that she declines to serve as executor. The Court has been told that Lisa will make an application under s 9 of the Wills Act for probate to be granted to her.

On 18 March 2009, Barry, who was then 66 years old, died of cancer, having been ill for about the previous two years. He had never married or had children. Barry was a television repairman by occupation, and lived alone on a five acre property in Gap Road, Sunbury. Barry had made a will over 30 years before his death, leaving the net income of his estate to his mother and after her death, the residue in equal shares to his three siblings. When he made his will, Barry had only a modest income and no significant assets. However, by the time of his death, he had acquired land which had increased in value over the years and had received an inheritance under a friend’s will. His estate was worth about $2.1 million.

Barry was survived by his sister Margaret Roberts (‘Margaret’),[4] his brother Keith Samson (‘Keith’) and by the three children of his deceased brother Neil, Karen Samson (‘Karen’), Christine Samson (‘Christine’) and Steven Samson (‘Steven’), who were entitled to Neil’s third share in substitution for their father’s interest as a residuary beneficiary under the will.
[4]Called Margaret Schroeders in the will.

Kim, who was aged 38 years at the time of Barry’s death, claimed that she had been in an intimate relationship with Barry for several years prior to his death, and that they were engaged to be married. She said that when she became pregnant with Alex, Barry promised to support her, and take care of her child, although he was not the child’s father.

The learned trial judge found that although Kim and Barry had never lived together, she was Barry’s ‘close personal companion and sexual partner’[5] and that they had a ‘mutually supportive and exclusive relationship’.[6] He also found that Barry ‘felt towards and treated Alex as a son’.[7]
[5]Whitehead v State Trustees Ltd [2011] VSC 424 (‘Reasons’) [185] (Bell J).
[6]Ibid [189].
[7]Ibid [213].

The judge accepted that Barry had intended to make a will providing for both Kim and Alex. Accordingly, his Honour granted the application and ordered payment of a legacy of $450,000 to Kim, and payment of $400,000 to the Senior Master for the benefit of Alex.

State Trustees, which is the executor of Barry’s estate, now appeals against the judge’s orders.

Grounds of appeal

The appellant relies on seven grounds of appeal, most of which contain sub‑paragraphs challenging particular factual findings made by the judge which led to the conclusions which he reached. Essentially, these grounds raise two issues:

·Whether the finding relating to the nature of Barry’s relationship with Kim and Alex, which led to his Honour’s conclusion that the relationship imposed a moral responsibility on Barry to provide for them under s 91(4) of the Act,[8] should be set aside;
·Whether, assuming that there was jurisdiction to make orders in favour of Kim and Alex, his Honour erred in ordering that Kim be paid the sum of $450,000 and that Alex receive $400,000 to be paid to the Senior Master of the Court to be held for his benefit until he reached the age of 18 years (grounds 6 and 7).
[8]As explained below, counsel for State Trustees conceded that if his Honour’s factual findings were upheld, such a moral responsibility would arise. It is therefore unnecessary to consider ground 5 separately from grounds 1 to 4.

The nature of Barry’s relationship with Kim and Alex ― grounds 1 to 5
The evidence

All of the parties relied on extensive affidavit evidence. Kim, her mother Lorraine Whitehead (‘Lorraine’) who was also Alex’s litigation guardian, and her sister Lisa Bedford (‘Lisa’) also gave viva voce evidence in support of Kim and Alex’s claims. Affidavits as to the nature of the relationship between Barry, Kim and Alex were also sworn by Kim’s brother Paul, and Barry’s best friend, Lionel Withers (‘Lionel’). The claimants also relied on cards sent by Barry to Kim, and photographs which were said to establish that there was a close and loving relationship between Kim, Barry and Alex.

Kim also relied on entries from her diaries covering the period January 2000 to May 2009 (apart from the 2002 and 2005 diaries, which could not be located). The originals of these diaries (other than the 2000 diary for which only a copy was available) were examined by the State Trustees. Kim said she had given the originals of all the diaries which she had to her solicitors. She was extensively cross‑examined about various diary entries, which the State Trustees claimed cast doubt on her evidence about the nature of her relationship with Barry.

State Trustees called Barry’s brother Keith, and his neighbour Lee O’Shannassy (‘Lee’) as witnesses at the trial. Family members, Peter Schroeder (Margaret’s son), Roslyn Samson (the widow of Barry’s brother Neil) and beneficiaries of Barry’s will, Margaret, Karen, Christine and Steven, all gave evidence on affidavit only. Raymond Schafer, Maureen Sanders and Terence Gray, who were friends or acquaintances of Barry, also swore affidavits relating to the nature of Barry’s relationship with Kim and Alex.

Evidence for the appellant

The State Trustees opposed the application on behalf of the beneficiaries, on the basis that Kim was, at the most, only one of Barry’s friends and that he had no moral responsibility to provide for Kim or Alex. Reliance was placed on the following evidence.

Terence Gray, deposed that he was a close friend of Barry, who had visited him every other week in the final years of his life to take him food and to help occasionally with jobs around his property. He said that Barry had only mentioned Kim from around 2005 onwards, and he had never seen Kim or Alex at Barry’s house. He gained the impression that Kim was ‘simply an acquaintance’ of Barry’s. He said that Barry had told him that Kim was ‘a drunk’ and ‘a bad mother’ and that he was disgusted by Kim’s drinking and smoking. Mr Gray said that Barry ‘never once gave me the slightest impression that he had a romantic interest in Kim at all’. He suspected that Barry had ‘never had sex with any woman’, although he thought he was heterosexual. He said that he had once suggested to Barry that Kim might be a possible live-in carer for him when his health deteriorated, but Barry had responded ‘no way’ or words to that effect.

Mr Gray said that Barry told him he was fond of Alex and ‘enjoyed having him visit him and taking him around his property and playing with him’. He said Barry once told him that he had bought Alex a Christmas gift, which he thought was unusual as ‘he normally never spent money on gifts’. Mr Gray said that:

I believe that Barr[y] felt sorry for the boy but I say that if Barr[y] told me about this small gift then I have no doubt that if Barr[y] had paid all the fees and expenses claimed by Kim I would have heard about it.

Mr Gray said that he had discussed Barry’s will with him on a number of occasions, and in around 2008, Barry had spoken about establishing a charitable trust for the care of animals, and a trust for his sister. During a later visit, Barry had told him that his existing will was ‘good enough’ and did not need to be changed. Mr Gray said that Barry never mentioned that he wanted to make Kim and Alex beneficiaries of his will.

Maureen Sanders, another of Barry’s friends, deposed that in the three or four years prior to his death, Barry would sometimes mention Kim and Alex, and had told her that ‘he felt sorry for Alex because he did not have a father’. He said that Kim sometimes brought Alex over to his house and he was pleased to see him, but that after he became ill, ‘he could not put up with all the noise and running around of the little boy’. She also deposed that:

When Barry got sick he spoke to me about his will. He told me that he was thinking of changing his will. He said that there were a few children that he was thinking of looking after in his will and that Alex was one of them. Barry told me that if he decided to give money to Alex he would insist on the money being ‘tied up’ so that Kim could not get to it.

Ms Sanders also said that Barry had told her that Kim had asked to move in with him, but that he did not want her to. She said that Barry had spent Christmas lunch between 2002 to 2007 with her and her family and that when he had left, he had never mentioned that he was going to see Kim or Alex.

Raymond Schafer, another of Barry’s friends, and the father-in-law of Lee, deposed that he would visit Barry on weekends after he became ill and took him to many medical appointments. Mr Schafer said that from 2005, he met with Kim and Alex at Barry’s house intermittently and then after around two years, the meetings were more regular. He said that:

Barry enjoyed Alex’s company and would give him rides on his mower. Barry would also play cricket and football with Alex and supervise him when he went swimming in Barry’s pool.
…
Barry told me that Kim had a drinking problem and that he felt sorry for Alex. He told me that he was thinking of leaving a legacy to Alex in his will but he was concerned that Kim would be able to get access to the money even if he left the money on trust for Alex.

Mr Schafer said that he ‘never saw any display of affection between the two’, though Barry did tell him that Kim and Alex would visit him for lunch on Sundays. Kim had wanted to move in with Barry after he became ill, but he had refused.

In her affidavit, Barry’s sister, Margaret, deposed that she had last seen Barry in late June 2008 (that is, about nine months before he died), but that she was close to her brother and they often spoke on the telephone. Her evidence was that Barry had never once mentioned Kim to her, but had occasionally talked about Alex. She said that when Barry found out that he would die from his illness ‘he told me that he did not know how he was going to tell Alex that he was not going to be able to work on cars with him anymore or that they would not be able to do things together anymore’. She said that Barry was a kind man who might well have offered to help Kim with her child, as he had helped Margaret when she had young children.

In response to Kim’s evidence that Barry had helped Margaret by paying her rates, Margaret said that he had not done so and her rates were 15 years in arrears.

Margaret’s son, Peter Schroeders, then aged 37, deposed that he had spent a ‘great deal of time’ with Barry when he was young. He said that Barry never mentioned being in a relationship with Kim, and that he had the impression that Barry did not like her. However, he believed that Barry was close to Alex, whom he called his ‘little mate’. He also said that Barry ‘hated smokers’ and had said that anyone who smoked was ‘out of his will’.

Barry’s nephew, Steven, who was 41, deposed that he had a close relationship with Barry, but had not seen him since his own father, Barry’s brother Neil, had died in 2001. He said that Barry was a ‘very solitary man who prized his freedom and lifestyle’, and that he did not believe Barry had ever had a sexual relationship with a woman. He said that Barry would have told him, and other members of the family, if he had been in a relationship with Kim, but he had not done so.[9]
[9]Barry’s sister in law, Roslyn Samson, gave similar evidence.

Barry’s brother, Keith, deposed that he had a ‘good and close relationship’ with Barry, and that from the time Barry told him he had bowel cancer, he (with his partner Freda) visited or telephoned Barry on a daily basis. They cooked meals for him, took him shopping and took him to medical appointments.

Keith deposed that Barry had only begun to mention Kim about three or four years before he died. He said that if Barry had been in a relationship with Kim, he ‘would have told me’. Although Keith assumed that Barry was heterosexual, he had ‘never known Barry to have ever had a sexual relationship with a woman’. Barry had never mentioned Kim in connection with his plan to build a house in Deverall Road, Sunbury.

Keith said that Barry had told him that Kim suggested that she move in with him, but he had rejected the suggestion. Barry had told him that Kim was a ‘drunkard’, ‘a bad mother’ and a heavy smoker and that Barry detested smoking. He said that Barry ‘was a miser who rarely spent money on personal comforts’ and often said he was short of money. He and other friends and family gave Barry money during the period within which it was alleged that he was providing financial assistance to Alex. Barry had also told Keith that he had only lent money to Kim because she had previously lent him money when he needed it and which he had repaid. He was worried about her ability to repay him.

Keith said that he visited Barry frequently when he was ill and never saw Kim do any housework. Instead, Keith’s partner Freda and a friend, Sandra O’Shannassy, had cleaned Barry’s house and had cooked meals for him in the last couple of years of his life.

At the trial, Keith said that he had seen Barry once or twice a week in the last years of his life and telephoned him daily. In cross-examination, he said he had seen Kim at Barry’s property ‘three or four times’. He said that Barry was a solitary man who had problems with intimacy and would not have talked about having a sexual relationship. He admitted that Barry was ‘very, very fond of young Alex’ and that there were marks on Barry’s wall recording Alex’s height. He accepted that there had been a photograph of Kim in the entry at the front of the house for three to five years before Barry died, but said he had not asked Barry about whether he was in a relationship with her.

Lee deposed that he had known Barry for 30 years and was his ‘good friend and neighbour’. He said that he visited Barry four or five times a week and until he became ill, Barry would come over for a meal on most weekends. He said that Barry only mentioned Kim and Alex to him when Alex was around three or four years old. Barry had told him he intended to build a house at Deverall Road, Sunbury, but had never mentioned that Kim was connected with this plan.

He said that Barry had told him that Kim was an ‘alcoholic and a bad role model for her son Alex’ and said that Barry had never said that he intended to live with Kim. He had never seen Barry alone with Kim, or seen her car parked overnight at Barry’s house. He had only seen Kim with Barry at the hospital once. On a few occasions, she had offered to take Barry to hospital but had failed to turn up, so that Lee’s father–in-law Ray Schafer had had to take him instead.

Lee deposed that the only people who had cooked and cleaned for Barry after he became ill were Keith’s partner, Freda and his own wife, Sandra.

In cross-examination, Lee was questioned about the photograph of Kim displayed in the entrance to Barry’s house. He responded that that it was ‘just another photograph’ among a number of photographs in the hall. When cross‑examined as to whether he could have seen Kim’s car if it had been parked at Barry’s house, he said he would have known if a car had been there, but conceded that he could not identify Kim’s car. He agreed that he had seen Alex and Barry engaging in activities around Barry’s property together. For instance, he had seen Barry teaching Alex to ride a bike and to learn to swim. Alex had also swum in the O’Shannassy’s pool and was then accompanied by Kim.

The respondents’ evidence
Kim’s evidence

Kim swore three affidavits in support of her claim[10] and a further affidavit responding to the affidavits relied upon by State Trustees.[11] In her first affidavit, Kim deposed that she had met Barry in 1998 or 1999 when he attended her home to repair her television. They became friends and after about a year, they began having a sexual relationship. Kim’s evidence was that they had ‘regular sex except for the last two years of [Barry’s] life when [he] became ill’.
[10]Affidavit dated 3 September 2009 (‘the first affidavit’), Affidavit dated 21 December 2009 (‘the second affidavit’), Affidavit dated 17 May 2010 (‘the third affidavit’).
[11]Affidavit dated 17 May 2010 (‘affidavit in reply’).

She said that she was ‘ill and distressed’ when she became pregnant with Alex in mid 2001, as she had previously had two miscarriages. When she told Barry she was considering an abortion, he persuaded her to keep the child and said that ‘he would help me and help me to parent the child’. Alex was born on 4 April 2002. Thereafter, Barry had paid for Alex’s play group and school fees, and his uniforms.

Kim said that in early 2006, they had ‘agreed that we would move in together and live as husband and wife along with Alex’. She said they decided to build a house together on land owned by Barry at Deverall Road, Sunbury. In her evidence at the trial, she said they drew up plans for the house, and would drive around looking at different properties for ideas.

In support of that claim, she relied on a diary entry from 29 January 2001, in which she recorded that ‘Barry and I went for a drive getting ideas for the house we want to build in Gisborne’. However, at the trial, she admitted in cross-examination that she did not make any further entry in her diaries concerning their ‘dream home’. Kim said that her and Barry’s plans to move in together were put on hold because of Barry’s medical condition, because Barry had not wanted her to ‘go through the agony of watching him deteriorate’.

Kim said that when Barry became ill in 2007, she would ‘visit him every second day and would cook for him, clean for him, do household chores, and generally look after him’, and she would telephone him on days that she did not visit.

In her second affidavit, Kim added that she and Barry had intended to get married and he had bought her an engagement ring valued at approximately $1,500. She said that Barry often gave her money when she was having financial difficulties, such as paying for rent, and would not accept anything back. She would give him money when he was having financial difficulties and he would always pay it back with interest.

In her affidavit in reply, she denied Terence Gray’s evidence that Barry regarded her as a drunk and a bad mother, saying that Barry was a man of high morals who would not have tolerated such behaviour. Kim said that Barry was a courteous and private man who would not have discussed his sex life with others. She also said he was ‘worried that his family would judge him’ because of the age difference between them.

Kim deposed that although Barry was frugal, he bought many small gifts for her and Alex, and always bought Christmas presents for Alex. The last presents he bought were a trampoline for Alex worth around $300 and a Holden Commodore motor vehicle for her. On occasion Barry had told her that he ‘did not want to advertise his financial situation to his family’.

Kim gave evidence that:

I was touched when the deceased told me that he was going to set up a trust for Alex. The deceased told me that a trust would be a better idea than a lump sum because he might waste it if it were a lump sum. The trust was to ensure that Alex received a good education, a car on his 18^th birthday and a start in buying his first home… The trust had nothing to do with me ‘getting my hands’ on his money. The deceased had not yet set up the trust because he discovered that if Alex needed to take out money before he was 12 he would incur a hefty interest loss.

Kim denied that Margaret had a close relationship with Barry and said that Barry had told her that he wanted to set up a trust for his sister because he was worried that she would ‘buy more cats’. She denied that Barry had spent every Christmas lunch between 2002 and 2007 with Maureen’s family. She said that after Barry became ill she had always contacted Barry to see if he was well enough for Alex to visit and he had never told her not to bring him.

She denied having drinking problems and said that she had been assessed as suitable to be a foster mother by the Department of Human Services on several occasions over an 11 year period, both with and without notice. A Certificate of Completion of a Training Program dated 2 December 2008 and a Certificate of Recognition: Home Based Care Award for 1999/2000 and 2000/2001 were exhibited to her affidavit in reply.

She agreed that Barry did not like smoking, but said she was not a heavy smoker and only smoked outside. She also agreed that Barry’s house was ‘never really clean’, but said she had tidied up when she could. She was on a disability pension due to a back problem and this precluded her from doing heavy cleaning. Her primary ‘concern revolved around the wants and needs of the deceased and that was [her] focus’. She said that Sandra (Lee’s wife), Freda and herself had cooked for Barry when he was ill.

Kim deposed that after he became ill, Barry would ask her to perform personal services for him like cutting his toe nails and rubbing his legs, and she would also clean his sheets when his colostomy bag burst. She said that Peter Schroeder (Barry’s nephew) had not seen Barry for several years before he died.

She said that before Barry became ill, she had bought him a will kit at his request. She said that after Barry’s death, his brother Keith had told her that he would inform her how much Alex was to receive under Barry’s will.

During cross-examination, Kim said that the couple ‘very rarely went out, but visited each other’s property often’, and went swimming and shopping. Kim said that she had never lived with Barry, but visited and stayed at his house often. Although they kept separate finances, Kim said that Barry paid for Alex’s playgroup and school fees, uniforms and other items. She confirmed her earlier evidence that in or around June 2002, Barry proposed to her and gave her a gold diamond engagement ring and she had accepted his proposal. She said she had not worn the ring for long because her fingers remained swollen after her pregnancy.

She said that the couple had dinner together to celebrate, and she had told her family about the engagement. Kim said that they ‘didn’t make a big deal’ of their engagement, as it ‘wasn’t in [Barry’s] nature to celebrate’. She said in cross‑examination that they never married because they ‘just didn’t get around to it’. She conceded that Barry had never come to have Christmas dinner with her and her family, and she said that this was because ‘his personality is different’.

Kim said that shortly before he died, on 25 January 2009, Barry had proposed to her for a second time. Kim’s diary entry for that day, which she did not herself rely upon, was drawn to the Court’s attention by counsel for State Trustees. The entry recorded that ‘Barry asked me to marry him so he could adopt Alex. Alex was very happy’.

Kim was cross-examined about the date she had became involved in a sexual relationship with Barry. In her first affidavit, sexual relations were said to have begun about a year after she met Barry in 1998 or 1999. She said that apart from falling pregnant with Alex as a result of a one-off sexual encounter, she had not been intimately involved with anyone apart from Barry after having met him. In cross‑examination, she was taken to a diary entry on 9 May 2000, in which she wrote:

the TV guy (what’s his name) came and cut some trees down and took them away for nothing! He’s so nice… Dad Rob and Paul think he’s up to something but I know he’s not.

It was put to her that in previous entries in the diary, she had mentioned Barry by name and that this suggested that these entries had been added subsequently. She denied that she had done so.

It was also put to her that there was an inconsistency between this entry and the claim in her first affidavit that she had begun a sexual relationship with Barry about a year after meeting him in 1998 or 1999. She responded that she had not been sure about the year when they first met, but that she had correctly said their sexual relationship began about a year after they met. She said that she was not good with dates and had not re-read her diaries before swearing the first affidavit. She said that she could not remember exactly when they had begun a sexual relationship.

She was also cross-examined on entries in the extracts from her 2000 and 2001 diaries in which she had referred on numerous occasions to two other male friends, ‘Rob’ and ‘Ilia’, and had frequently noted that Ilia had not telephoned her. She had also written that she had told Ilia about Sam (the father of Alex) and that she ‘felt guilty’. She said that Rob was an ex-boyfriend with whom she had remained friends in 2000. She denied having a sexual relationship with Ilia, who she said was a friend of her brother’s, who had done some maintenance work at her house.

Kim was cross-examined about why she said she did not accept Barry’s second marriage proposal when she had already agreed to become engaged to him in 2002. She said that Barry had raised the issue of marriage again despite their earlier engagement, because he wanted to adopt Alex. She did not accept Barry’s second proposal, because ‘we were happy the way we were’ and it was a ‘big decision’ for Barry to adopt Alex. She did not think that getting married when Barry was sick would be ‘good for Alex’. She said that ‘[g]etting married, getting adopted and then having him die. It was hard enough having him die for Alex as it was.’ In response to counsel’s suggestion that marriage would have enhanced her and Alex’s current claims, Kim responded ‘I wasn’t thinking of claims at the time. I wasn’t thinking about his money’. She also said she had thought that Barry had written another will before he died.

Other evidence in support of the applications

In Lorraine’s affidavit, she deposed that so far as she was aware, the matters to which Kim swore in her affidavit were correct. In support of Alex’s application, she said that Barry was ‘fascinated by Alex’s adoration of him and loved him back. He was proud of Alex’s accomplishments and talked about him all of the time.’

Lorraine said that Barry was at the hospital with her family when Alex was born, and was present for Alex’s ‘first day of everything else’, including his first day at kindergarten and school. When Alex was not staying at Barry’s house with Kim, Barry would talk to him on the telephone every night, and Alex described him as ‘the best Dad in the whole wide world’, although he would otherwise call him Barry.

Lorraine deposed that Barry taught Alex how to play football and cricket, how to ride a bike and to swim, went for walks around the paddocks to feed the horses and started a vegetable garden with him, and played computer games and drew with him. Barry also made markings on a doorway at his home recording Alex’s growth in height. Lorraine said that although Barry was frugal, he bought many gifts for Alex, including a bike, a computer, a blow up swimming pool and a large enclosed trampoline. He had also paid for school uniforms, school fees and activities in which Alex participated, and ‘otherwise treated Alex as his son’.

Lorraine said that from 2002 through to 2008, Barry, Kim and Alex spent every birthday and Christmas lunch together, and she referred to outings which they had gone on together. She said that Barry believed that Alex was clever and wanted him to be well educated and have a good start in life and not to have financial worries when he was growing up.

In both her evidence in chief and cross-examination, Lorraine conceded that much of her knowledge of the relationship between Kim and Barry was based on what Kim had told her, rather than on her direct observations. Barry was very supportive of Kim when she was pregnant and on one occasion, Barry had said to Lorraine (who was then suffering from breast cancer) ‘Don’t worry I will look after them’.

She said that Kim had told her about visiting Barry and that Barry and Kim had spoken in front of her about where they would put rooms in the new house, although she conceded that Barry had not said that Kim would live there with him.

Lorraine said that Barry had had a disagreement with Lee around the time that Barry got cancer and that in 2007, Barry had said he did not want Lee on his property and did not want Lee to drive him to hospital.

In cross-examination, Lorraine agreed that Barry had not had Christmas lunch with the family, but said that she had helped Kim make up a plate to take to have an evening meal with Barry on Christmas night. She also agreed that Kim and Barry were not openly affectionate to each other.

In re-examination, Lorraine referred to the regular telephone conversations between Barry and Alex before Alex went to bed. In response to whether they regularly sang particular songs to each other, she said ‘Slinkle, slinkle little star, he loved that. Barry didn’t want him to grow up and say it properly’.

Kim’s sister, Lisa Bedford, gave affidavit evidence that Kim frequently visited her on the way to Barry’s house and said that she was going to see Barry. She said that Kim had not been ‘intimately involved with any other person after she met Barry’. In re-examination at trial, she clarified that Kim did not have any other boyfriends after she had met Barry.

Lisa said that on the occasions when Kim had Christmas lunch at Lisa’s house, Kim would take a plate of food to have dinner with Barry. She said that Kim was very distressed when Barry became ill, and that Kim and their mother spent a great deal of time looking after him. She said that it was ‘was clear to me that Barry and Kim were a couple that supported each other’. As to Barry’s relationship with Alex, Lisa said that they ‘got along together very well. Barry was great with Alex and was a father figure for Alex’.

At the trial, Lisa was asked in cross-examination why she had not referred to Kim and Barry’s engagement in her affidavit, to which she replied ‘I didn’t think they were an engaged couple’. She then said that:

I could tell you that Kim had told me he had asked her to marry him but a formal engagement, I’m not – I can’t say, yes, there was a formal engagement.

Lisa agreed that it was usual for couples to attend family functions together, but said that Barry and Kim were in ‘an unusual relationship’. She conceded that most of what she knew about Kim and Barry’s relationship was based on what Kim told her.

Kim’s brother, Paul Whitehead, gave affidavit evidence that Kim and Barry were ‘very close’, and were constantly visiting and spending time with each other. He gave evidence that Barry ‘did a great deal’ for Alex, and said that Kim was ‘sad and devastated’ when Barry became ill. He said that he remembered Kim ‘attending to Barry, constantly cooking for him, washing his clothes and generally caring for him whilst he was ill’. He described Barry as ‘a close member to the family’ and said that Kim and Barry were ‘very much like a married couple’.

Kim’s application was also supported by the affidavit evidence of Lionel, who said he was Barry’s ‘best friend’. Lionel said he had met Kim at Barry’s house before Barry was diagnosed with cancer. He said that he was in regular contact with Barry, and that Barry would often tell him ‘Kim is coming over’ when he was asked about his plans for the week. Lionel said that he ‘never questioned, or had reason to question the deceased’s relationship with Kim. Kim was his choice’. He said that the first thing he noticed when entering Barry’s house was a framed picture of Kim. Barry was very fond of Alex and enjoyed his company.

His Honour’s reasons

In his comprehensive reasons, the learned trial judge referred to the evidence of Barry’s family and friends that Barry did not have, and would not have had, a sexual relationship with Kim. His Honour accepted that that evidence was honestly given, but concluded that ‘Barry was not open with these and other witnesses about his sexual relationship with Kim’.[12] His Honour said that:

There was a big age gap (28 years) which may have been embarrassing to Barry. He was always very moral and proper, which may have made that embarrassment more acute. It was not in his nature to be physically demonstrative or to discuss his intimate feelings, so it was hard for his family and friends to see what was really going on. Kim was certainly Barry’s first girlfriend. That is difficult to explain and discuss for a man in his fifties. Kim drank and smoked, of which he did not approve. He expressed that disapproval to others, which was consistent with his upright nature. But he still had an intimate relationship with her, on the other evidence.[13]

[12]Reasons [101].

[13]Ibid [102].

His Honour reasoned that as Kim was not liked by Barry’s family and friends, ‘he may not have wanted to trust them with the truth about their sexual relationship’.[14] Further, although Barry may have expressed criticism of Kim for ‘being a bad mother, handling money badly, being likely to misuse money left to Alex’, his Honour said it was not unusual for a person to be ‘unjustifiably critical’ of his or her partner, and said that Barry may have been simply ‘letting off steam’.[15]
[14]Ibid [103].
[15]Ibid [102].

The judge found that the evidence of Lionel ― who said that Kim was Barry’s ‘choice’ ― was ‘highly significant’,[16] as he appeared to have been ‘the only friend whom Barry trusted enough to reveal the true nature of his relationship with Kim.’[17] His Honour referred to Lionel’s evidence that the photograph of Kim was the first thing he noticed when he entered Barry’s house, and concluded that:

the photograph was significant evidence of the close personal relationship between Kim and Barry. He deliberately displayed it in a prominent position in the home knowing that visitors could see it. It was a photograph of Kim at her attractive best and he liked to see and present her in that way. Having seen the photograph and considered the evidence, only those failing to look beyond their nose could fail to appreciate that this was a photograph of Barry’s female companion (with whom he was having a sexual relationship).[18]

[16]Ibid [152].

[17]Ibid [154].

[18]Ibid [123].

In relation to Kim’s decision to continue with her pregnancy with Alex, his Honour found that:

Barry was a significant influence in Kim’s decision to have Alex. If it were not for Barry’s representations, it is quite possible that Alex would not have been born. Kim was comforted by and relied on Barry’s promise to help her and help her parent the child. If followed through, it meant she would not have to bring the child up on her own and the child would have a father-figure. Kim allowed herself to be persuaded to keep the child and thought that Barry would give her and the child the support which he promised. She took a risk, but judged the man well. Consistently with Barry’s high moral standards, he felt a sense of responsibility towards her and Alex. Far from being burdened by that responsibility, the evidence showed he embraced it and did everything and more which that responsibility involved. In consequence, Alex thriving was the crowning achievement of Barry’s life.[19]

[19]Ibid [110].

The judge accepted that Barry had proposed marriage to Kim in 2002 and then in January 2009. He said that Barry made the second proposal ‘not only so he could adopt Alex but because he loved Kim’.[20]
[20]Ibid [117].

His Honour accepted the evidence of Barry’s family and friends that he did not want Kim to live with him at his home at Gap Road, Sunbury. However, his Honour said that this was more likely due to the untidy state of his house, the change in lifestyle and the loss of privacy and independence.[21] At the same time, his Honour accepted Kim’s evidence that ‘it was Barry’s intention to build a ‘dream home’ for him, Kim and Alex on his property at Deverall Road, Sunbury’.[22]
[21]Ibid [131].
[22]Ibid [136].

The judge also accepted Kim’s evidence that she did not have a sexual relationship with Rob and Ilia. Although she was ‘probably flirting with them and was certainly enjoying their attention’, her relationship with them was ‘episodic, ran its short course and was of a wholly lesser order than her relationship with Barry.’[23]
[23]Ibid [106].

Although Barry did not tell his family and friends that Kim was helping him around the house, the judge found on the evidence that Kim ‘did a considerable amount of cooking, cleaning and personal caring for him and the family witnesses have under-estimated her contribution in this regard.’[24]
[24]Ibid [177].

The judge accepted Kim’s evidence that Barry intended to make a new will to provide for her and Alex,[25] but had not acted on that intention before he died. He said that Kim’s evidence was ‘consistent with the physical evidence of the will kit which she obtained for Barry at his request and which was found in his bedroom when he died’.[26]
[25]Ibid [178], [184].
[26]Ibid [184].

On the basis of the above, the judge concluded as follows:

On the evidence I have here examined, Kim was Barry’s close personal companion and sexual partner (until he became ill). Kim was the first and only relationship of that kind in Barry’s life, which was all the more significant because he was in his fifties when he formed this attachment. Their relationship of that nature was of a length of nearly ten years.

Alex was born after Barry persuaded Kim not to have an abortion. Barry made a commitment to help Kim and help her care for Alex. She trusted him to do so and had the child. Barry fulfilled his commitment until he died. Kim remained legally responsible for Alex as his mother and was his primary carer, but Barry supported her and him in substantial ways, emotionally, financially and practically. He was a father-figure to Alex and loved him like a son. He loved Kim not just as Alex’s mother but for who she was personally. Likewise Kim loved Barry not just as a father-figure for Alex but for who he was personally.
…
Alex was the main focus of Kim and Barry’s relationship but it extended beyond raising Alex. They loved each other and after Alex’s birth had a mutually supportive and exclusive relationship. They were engaged to be married and would have married but for Barry’s untimely death.
Barry intended to change his old will to make provision for Kim (and Alex), but he died of cancer before doing so.[27]

[27]Ibid [185]−[190].

His Honour also found that:

Kim, Alex and Barry represented a social unit which was tantamount to a family comprising Kim as the mother of Alex and the woman engaged to marry Barry, Alex as the son of Kim and the child who felt towards and treated Barry like a father and Barry as the person who persuaded Kim to have Alex and not an abortion, who was engaged to marry her and who felt towards and treated Alex like a son. The three of them had a loving and mutually supportive relationship and spent a great deal of time together on that basis, although they did not live together and they maintained separate finances.[28]
[28]Ibid [218].

Should his Honour’s factual findings be set aside?

As I have said, almost all of the grounds of appeal attacked particular findings of fact made by the trial judge which ultimately led to his Honour’s conclusion as to the nature of Barry’s relationship with Kim and Alex.

State Trustees submissions

Grounds of appeal 1 to 4 challenged his Honour’s findings about the nature of the relationship between Kim, Alex and Barry, and ground 5 attacked his Honour’s conclusion that the relationship attracted the operation of Part IV of the Act.

The State Trustees relied upon comments made by Redlich JA in Forsyth v Sinclair,[29] where this Court upheld orders made under Part IV of the Act in favour of a woman who had had a long-standing, loving and exclusive relationship with the deceased, although the couple had never lived together on a full-time basis, and the claimant was not financially dependent on the deceased and had not made financial contributions to his property or financial resources. In that case, Redlich JA said that:

The nature of the relationship of the plaintiff and the testator lacked a number of features generally found in a de-facto relationship. The plaintiff and the testator did not reside together. The plaintiff was not financially dependant upon the testator. She made no financial or other significant contribution to the testator’s circumstances. Ordinarily a moral duty to provide maintenance and support would not arise unless one or more of such indicia of responsibility were present. But the absence of such features in a relationship does not preclude the possibility that such a moral obligation may arise. Although I consider the present case to be at the margin, I agree with Neave JA, essentially for the reasons she has given, that having due regard to the relevant factors enumerated in s 91(4) of the Administration and Probate Act 1958, the findings made by the trial judge were sufficient to confer upon the court, jurisdiction to make the order that he did.[30]

[29][2010] VSCA 147.

[30]Ibid [106].

Counsel for the appellant argued that, if the facts of Forsyth v Sinclair placed it ‘at the margin’ of cases where a claim could be made under Part IV of the Act, then this case went well beyond it. Although that argument relates to the circumstances in which a deceased person had the duty to provide for the support of a claimant (the issue which also appears to be raised by ground of appeal 5), in response to questions from the Bench, counsel for the State Trustees ultimately conceded that unless the Court set aside the judge’s finding that Kim, Alex and Barry were part of a ‘social unit which was tantamount to a family’, his Honour’s conclusion that Barry owed a moral duty[31] to provide for Kim and Alex could not be challenged.
[31]Although this terminology is not used in the legislation, it remains the test for determining whether a testator had an obligation to support another person: see Forsyth v Sinclair [2010] VSCA 147 [61].

It follows that the attack on his Honour’s conclusion that he had power to make orders in favour of Kim and Alex is limited to a challenge to his factual finding. Because of the way in which the appeal was argued, it is unnecessary to decide whether, assuming that his Honour correctly found that the relationship was ‘tantamount to family’, Barry had a duty to provide for their adequate maintenance and support.

Counsel for the State Trustees submitted that although corroboration of Kim’s evidence as to the nature of the relationship was not required as a matter of law, his Honour had not displayed the necessary caution in accepting evidence which would alter the effect of Barry’s will.[32] Such caution was required because Barry could not ‘defend his testamentary judgment’[33] after his death.
[32]Birmingham v Renfrew (1937) 57 CLR 666, 681−2 (Dixon J) (In that case, the question was whether the testator had entered into an agreement with his wife as to how they should dispose of their property).
[33]Schmidt v Watkins [2002] VSC 273, [21] (Harper J).

Counsel submitted that his Honour’s conclusion about the nature of the relationship between Barry and the respondents was based on inferences which could not properly have been made on the basis of the evidence and was inconsistent with his finding that Kim and Barry had not lived together and were not financially dependent on each other.

Counsel argued that his Honour had given excessive weight to Lionel’s affidavit evidence that Kim was Barry’s ‘choice’ and that a glamorous photograph of Kim was placed prominently and visible as soon as one entered Barry’s house.[34] This could not provide a sufficient basis for the inference that Kim was Barry’s female companion with whom he was having a sexual relationship, particularly when Lee had said it was ‘just another photograph’ among others in the hall.
[34]Reasons [123].

His Honour also said that Barry did not want Kim and Alex to live with him in his house but found that:

this is not a reason to reject Kim’s evidence about the nature of their relationship. Barry’s unwillingness to have Kim and Alex live with him at Gap Road, Sunbury was more likely due to the state in which he kept the house, which was no place to bring up a child, and to the change of lifestyle, and the loss of privacy and independence, which cohabitation would have involved. An added complication was that, when he became ill, he was too frail to have Kim and Alex with him too often. So it was that his friend Maureen Sanders said Barry told her ‘he could not put up with all the noise and running around of the little boy’.[35]

Counsel contended that it was not open to his Honour to reach the conclusion that they were a ‘social unit’ in light of the evidence that Barry did not want to have Kim and Alex live with him.

[35]Ibid [131].

Counsel also submitted that there was an insufficient evidentiary basis for his Honour’s findings that:

Barry was a significant influence in Kim’s decision to have Alex. If it were not for Barry’s representations, it is quite possible that Alex would not have been born. Kim was comforted by and relied on Barry’s promise to help her and help her parent the child. If followed through, it meant she would not have to bring the child up on her own and the child would have a father-figure. Kim allowed herself to be persuaded to keep the child and thought that Barry would give her and the child the support which he promised.[36]

And that:

Alex was born after Barry persuaded Kim not to have an abortion. Barry made a commitment to help Kim and help her care for Alex. She trusted him to do so and had the child. Barry fulfilled his commitment until he died. Kim remained legally responsible for Alex as his mother and was his primary carer, but Barry supported her and him in substantial ways, emotionally, financially and practically. He was a father-figure to Alex and loved him like a son. He loved Kim not just as Alex’s mother but for who she was personally. Likewise Kim loved Barry not just as a father-figure for Alex but for who he was personally.[37]

[36]Ibid [110].

[37]Ibid [186].

It was further submitted that his Honour could not have concluded that the finding of the will kit, supported by Kim’s evidence, showed that Barry intended to make a new will specifying Kim and Alex as beneficiaries.[38] There were other explanations for the fact that an unused will kit was found in Barry’s home. In particular, other witnesses (such as Terence Gray) said that Barry had told them that he wanted to change his will to benefit a charity.
[38]Ibid [178]−[184], [327].

It was also submitted that his Honour had incorrectly taken the view that Kim was Barry’s primary carer after he became ill when there was evidence that Lee’s wife, Sandra and Keith’s partner, Freda had cooked and cleaned for him.[39]
[39]Ibid [177].

Counsel for State Trustees also argued that when the concessions and alleged contradictions in the evidence given on behalf of Kim and the evidence of Barry’s family and friends that they were unaware of the claimed relationship were taken into account, his Honour’s findings about the nature of the relationship between Kim and Barry were glaringly improbable. He placed particular reliance on:

·an alleged inconsistency between Kim’s affidavit evidence and her evidence at trial about when her sexual relationship with Barry began. The claim in her first affidavit that it commenced about 12 months after they became friends in 1998/1999 was said to be inconsistent with her May 2000 diary reference to the unnamed ‘TV guy’;
·references in Kim’s 2001 diary to ‘Rob’, with whom she admitted she had previously had a sexual relationship and to ‘Ilia’. The fact that there were 36 references to Ilia and far fewer references to Barry in that diary cast doubt on her claim about the time when she began a sexual relationship with Barry;
·an alleged inconsistency between her evidence that she had accepted Barry’s marriage proposal after Alex was born and her later evidence that she did not accept his marriage proposal;
·the evidence of Lorraine and Lisa that Barry had not participated in family functions and Lorraine’s concession that she had wrongly deposed that Kim and Alex had Christmas lunch with Barry, and that Lorraine had had Christmas dinner with them;
·Lisa Bedford’s evidence that she did not think that Kim and Barry were engaged, which contradicted Kim’s evidence that Barry asked her to marry him in 2002 and gave her an engagement ring;
·the conflict between Kim’s evidence that she frequently stayed overnight at Barry’s house and Lee’s evidence that he had not seen her car parked at Barry’s property; and
·the conflict between Kim’s evidence that Barry had intended to build a house at Deverall Road, Sunbury and her mother’s evidence that although they had talked about the house, Barry had not explicitly said they would live there together.

In relation to Alex’s claim, counsel for State Trustees submitted that his Honour had wrongly concluded that Barry:

formed a father-son relationship with Alex, one that was all the more important to Barry because he was a man who loved children but had no children of his own and to Alex because Barry was the ‘bestest dad in the whole world’ and never saw his real father.[40]

[40]Ibid [348].

Counsel submitted that although there was evidence that Barry was fond of and had a close relationship with Alex, it was insufficient to demonstrate on the balance of probabilities that he had assumed a role akin to that of a father. This was the case because Barry did not take Alex to or from school, and he did not take him to dental or medical appointments. Further, Lorraine’s evidence was that Kim would not allow anyone else (apart from Lorraine) to drive Alex in their car.

Submissions by counsel for Kim

Counsel for Kim conceded that caution was required in assessing a claim against under Part IV of the Act. However he submitted that Kim had withstood lengthy cross-examination and that there was other objective evidence of the relationship between Kim and Barry. His Honour had the opportunity to observe Kim and her mother at the trial and had found that they were honest witnesses. Although the relationship between Barry and Kim was an unconventional one, it was consistent with other evidence about Barry’s personality given by Kim and other witnesses. There was no reason for his Honour to reject Kim’s evidence about the closeness of their relationship.

There was substantial objective evidence in the form of Kim’s diary entries, photographs of Alex with Barry, and cards sent by Barry to Kim, which buttressed her claim that both she and Alex had had a close and loving relationship with Barry and that Barry had said he would look after them both when Kim became pregnant and had treated Alex as if he were his son. It had been put to Kim that she fabricated entries in her diaries to substantiate her claim and she had vigorously denied doing so. Because State Trustees had had the diaries examined by a handwriting expert, who had not been called as a witness, the judge was entitled to infer that his evidence would not have assisted the appellant. Nor did State Trustees cross‑examine Lionel, who said that Kim was Barry’s ‘choice’.

Counsel submitted that although his Honour may have used somewhat emotive language to describe the closeness of the relationship between Barry, Kim and Alex the conclusion he reached about their relationship was neither glaringly improbable, nor refuted by incontrovertible evidence.

Submissions by counsel for Alex

In addition to the photographs and cards to which I have referred, counsel for Alex relied on markings on the wall in Barry’s house showing that he had been measured regularly there. He emphasised Kim and Lorraine’s evidence that Barry and Alex regularly spoke to each other on the telephone before Alex went to bed and sang songs to each other and Lorraine’s evidence that Alex described Barry as ‘the bestest dad in the world’. Witnesses for both the respondents and for State Trustees had accepted that Barry was close to and fond of the boy.

Counsel submitted that although a father–son relationship was not necessarily required to establish that a person owed a moral duty to support another under Part IV of the Act, his Honour had correctly described Barry and Alex’s relationship as akin to that of father and son.

Conclusion on the nature of the relationship

The fact that the trial judge was in a position to assess the credibility and reliability of the witnesses who gave evidence at trial does not excuse an appellate court from:

the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.[41] In Warren v Coombes,[42] the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”[43]

As this Court there said, that approach was ‘not only sound in law, but beneficial in ... operation’.[44]

[41]Dearman v Dearman (1908) 7 CLR 549, 564, citing The Glannibanta (1876) 1 PD 283, 287.

[42](1979) 142 CLR 531, 551.

[43]Warren v Coombes (1979) 142 CLR 531, 551. See also Taylor v Johnson (1983) 151 CLR 422, 426; Jovanovic v Rossi (1985) 58 ALR 519, 522; cf Moran v McMahon (1985) 3 NSWLR 700, 715−6 (Priestley JA).

[44]Fox v Percy [2003] 214 CLR 118, 127 [25].

However, in deciding whether the trial judge’s ultimate conclusion that Barry, Kim and Alex were a social unit tantamount to a family should be set aside, this Court is not required to conduct a new trial by re-examining each finding made by the trial judge, and reaching an independent conclusion on each piece of contested evidence.[45]
[45]Compare the useful discussion of the role of an appellate court reviewing findings of fact in Nexus Adhesives Pty Ltd v RLA Polymers Pty Ltd [2012] FCAFC 135, [6]−[9].

It is trite law that claims against the estate of a deceased person must be approached with caution. However, as counsel for State Trustees ultimately accepted, the appellant can only succeed if it can demonstrate that the trial judge’s decision was ‘inconsistent with facts incontrovertibly established by the evidence’, or which was ‘glaringly improbable’ or ‘contrary to compelling inferences’.[46]
[46]Devries v Australian National Railways Commission (1993) 177 CLR 472, as cited in Fox v Percy [2003] 214 CLR 118, 139 [66] (McHugh J).

I turn first to the matters relied upon by counsel for the State Trustees as incontrovertible evidence contradicting his Honour’s findings. The first of these related to alleged contradictions in Kim’s evidence about the time when her friendship, and her sexual relationship, with Barry began. Kim’s evidence was that she had a bad memory and had not looked at her diaries before swearing her first affidavit. Given her claim that they had been together from at least 2001 until Barry died, it is not inconceivable that she could simply have forgotten precisely when their sexual relationship began. In 2000, she was dealing with the death of her father, her mother’s diagnosis with potentially fatal cancer and the unexpected conception of a child.

The second of these related to her 2001 diary references to Rob and Ilia. In my view, these were not necessarily inconsistent with her entering into a sexual relationship with Barry some time later in that year. Kim admitted that she had previously been involved with Rob, but her diary entry on 20 March 2000 recorded that they had ‘definitely split up’. There were certainly numerous references to Ilia in the early part of 2001, but they were equivocal as to the nature of their relationship. She may well have been flirting with Ilia or (as his Honour found) considering the possibility of a relationship with him at that stage, though it went no further. It is not clear whether the appellant attempted to identify Ilia with a view to calling him as a witness. Certainly Rob (whose surname was known) was not called by State Trustees in order to explore the nature of Kim’s relationship with him in 2001.

A third inconsistency related to alleged contradictions in Kim’s evidence that Barry had proposed to her. The cross-examination of Kim about her refusal to accept Barry’s proposal was confusing. She said that in saying earlier in the trial that she ‘did not accept’ his proposal, she had been referring to the second proposal. When the evidence is read as a whole, this was entirely plausible, as was the reason she gave for not agreeing to marry Barry when he was dying.

A fourth alleged inconsistency was the conflict between Kim’s claim that she frequently stayed overnight with Barry and Lee’s evidence that he had never seen Kim’s car parked at the house. As I explain below, Kim’s evidence on this matter was supported by her diary entries. Further, in cross-examination, Lee conceded that he could not identify Kim’s car. In my opinion, none of these matters made his Honour’s finding about Kim’s relationship with Barry ‘glaringly improbable’.

It must be accepted that much of Kim’s evidence about private conversations and incidents involving Barry could not be corroborated by the evidence of other witnesses (although, of course, corroboration was not legally required). Neither Lorraine or Lisa were disinterested witnesses. Further, in cross-examination, Lorraine qualified the statement in her affidavit that Barry, Kim and Alex generally had Christmas lunch together, although she explained it by saying that Kim had taken Barry a plate of food which they ate together later in the day. There is an entry to that effect in Kim’s 2001 and 2008 diaries.

There was also dispute about Kim’s claim that she cared for Barry when he was ill, in light of the evidence of Barry’s brother Keith and Lee that most of the cooking and cleaning for him was done by Keith’s partner, Freda and by Lee’s wife, who were not called as witnesses.

The appellant argued that his Honour gave too much weight to Lionel’s evidence. Standing alone, Lionel’s evidence that Kim was Barry’s ‘choice’ and that there was a glamorous photograph of Kim in Barry’s hall provided only minor support to Kim’s claim to have been in an intimate relationship with Barry, including a sexual relationship, for a number of years. However, when combined with the other evidence given in support of Kim and Alex’s claims, his Honour was entitled to take account of it in reaching his conclusion about the nature of the relationship.

Moreover, in assessing the accuracy of Lionel’s perceptions about the nature of the relationship, it is significant that Kim’s diary recorded that she and Alex had spent time with Barry, Lionel and his wife, but not with other friends of Barry. Lionel was not cross-examined about what he meant by saying that Kim was ‘Barry’s choice’. Lee agreed that a glamorous photograph of Kim was in the hall, although he said it was ‘just another photograph in the hall’.

I would reject the argument that the age difference between Kim and Barry made it improbable that they had a close personal and sexual relationship of the kind relied upon. Relationships between older men and younger women are not uncommon. Clearly Kim benefited from Barry’s kindness to her and Alex.

Most of the witnesses agreed that Barry was fond of and had a close relationship with Alex. Barry attended Alex’s birth, gave him presents, paid some of his expenses, played with him and spent time with him. This evidence supported Kim’s claim that Barry had agreed to help her with Alex if she did not have an abortion. Lorraine’s evidence of what Barry had said to her, and of the fact that Barry was very closely involved in Alex’s life from the time that he was born, supported Kim’s claim that Barry had played a part in persuading Kim not to have an abortion.

Lorraine’s evidence about the telephone conversations between Barry and Alex before Alex went to bed has a ring of truth about it. The closeness of their relationship was also evidenced by the existence in Barry’s house of the marks on the wall measuring Alex’s growth and of drawings done by Barry and Alex.

In my view, Barry’s failure to tell his brother Neil’s children or widow, who lived in Queensland and whom he rarely saw, about his relationship with Kim, did not make it glaringly improbable that he had a sexual relationship with Kim.

Barry’s failure to acknowledge the existence of the relationship to Terence Gray and Maureen Sanders, and to Keith and Keith’s partner Freda, could have caused his Honour to reach a different conclusion, but did not require him to do so. Most of the witnesses agreed that Barry was a solitary man who kept personal matters private. On balance, I consider it was open to his Honour to attribute Barry’s secrecy about his relationship with Kim to Barry’s unusual personality, to the fact that his family was unaware of him having any previous relationship with a woman and to his embarrassment at entering into a relationship with a much younger woman.

The finding of the will kit in Barry’s house gave some support to Kim’s evidence that he was intending to change his will to benefit her and Alex. Standing alone, this would not have been sufficient to support his Honour’s finding, but like Lionel’s evidence, it was part of the factual matrix which it was necessary for his Honour to consider. The glamorous photograph of Kim in Barry’s hallway gave some support to her claim that she had a close relationship with him, as did a number of birthday cards from Barry to Kim, containing messages demonstrating a degree of closeness between them.

Kim’s credibility was also enhanced by admissions she made against interest. She referred to Barry’s fondness for his niece Christine, although she said that he had considered that his brother Neil had provided for her. She also said that he had intended to provide for his sister. She conceded that Alex did not call Barry ‘dad’ and that others, including Freda and Sandra, had assisted Barry with housework and cooking when he was ill.

I am fortified in my view by Kim’s diary entries. There are relatively few references to Barry in the 2000 diary and some of them are positioned in a way which could support the argument that they were added later, a matter which Kim denied in cross-examination. Relatively little weight could be accorded to these diary entries, particularly because the original diary was not produced. The same cannot be said about many of the references Kim made to Barry in later years.

In her 2001 diary, Kim referred to her grief at the death of her father, and the support provided by Barry. She also alluded to staying at Barry’s house or visiting Barry on numerous occasions.[47] On 23 April 2001, the diary recorded that ‘Barrie’s brother is dying so he’s gone to Queensland to be there, meanwhile I’m looking after his dog and house and stay morning and night.’ On May 10 2001, it recorded that ‘Barrie’s pretty upset now we seem to always talk about Dad and Neil.’ The diary entry of August 29 2001 referred to Kim having an ultra-sound and says that ‘Barrie laughed at what the baby looked like (Alien) his eyes watered’. On 18 October 2001, Kim recorded that ‘Barrie’s happy it’s a boy’. On 24 November 2001, which was during Kim’s pregnancy, she recorded that Barry was ‘over a lot I’m always sick’.
[47]See, eg, entries on 11, 22 and 28 January, 2,17, 24, 25 and 26 February, 26 and 30 April, 29 May, 25 August and 25 September.

There were also frequent references to Kim, or Kim and Alex visiting or talking to Barry in the 2003, 2004 and 2006 diaries.[48] Kim referred to Barry leaving a present for Alex ‘at mum’s’ on 12 January 12 2004, and to going to the show with Barry and Alex on 27 September 2004. On 12 July 2006, she wrote that ‘Barry came to kinder again to watch Alex with the other kids because Alex said no one will talk to him’. She also recorded a conversation between Alex and Barry on 22 July 2006 where Alex asked Barry if, in another life, he could have been Barry’s ‘real Dad’, and told Barry he would have been a good son. Kim recorded that ‘Barry could hardly speak he then said no you’re the best son’.
[48]See, eg, Notes and December 2003, 2, 9 and 22 February, 6 and 27 April, 18 August, 12 December 2004, 1 January, 4 February, 30 September (recorded as Barry’s birthday) 2006.

In the latter part of 2006, Kim referred to Barry’s cancer diagnosis and doctor’s appointments.[49] The 2007, 2008 and 2009 diaries frequently referred to Barry’s illness, to Kim’s visits to his home and to things she did to care for him.[50] Kim also referred to conflict between herself and Keith’s partner, Freda.[51] On July 11 2008, she recorded that she bought a container for Barry’s tablets, a heat massager, woollen innersoles for his shoes and a bed underlay. On 25 December 2008, she recorded that she and Alex had Christmas with Barry and she took up all his favourite food and took him a cushion for his chair and couch, while he bought Alex a trampoline.
[49]See, eg, 24 and 28 November.
[50]1, 3, 17, 18, 25 and 27 January, 7 and 18 February, 18 and 22 March, 25 and 27 July, 30 September, 12 and 31 October, 2, 13, 16, 17, 24, 25, 26 and 30 November, 15, 25 and 31 December 2008, 2, 4 , 8, 18 and 31 January, 17, 22, 23 and 25 February, 4 and 18 March 2009.
[51]22 March and 29 June 2008.

On appeal, counsel for State Trustees did not argue that his Honour should have held that the diary entries were fraudulently fabricated after Barry died, although Kim was cross-examined on this issue at the trial. Any such accusation would have been a serious one, to which the principle in Briginshaw v Briginshaw applied.[52] His Honour was entitled to reject it, in light of Kim’s denial that this had occurred, and the failure of State Trustees to call the expert they had commissioned to examine the original diaries.
[52](1938) 60 CLR 336.

The State Trustees also argued that although Kim relied on extracts from her 2000 diary exhibited to her third affidavit, she did not produce the original of that diary to the State Trustees or the Court, and that neither an original or copy of her 2002 and 2005 diaries were produced either.

I accept that the failure to produce the original of the 2000 diary might perhaps cast some doubt on the extracts from it exhibited to her affidavit. Kim did not rely on the 2002 and 2005 diaries, but the originals of the diaries for the years 2001, 2003, 2004, 2006, 2007, 2008 and 2008-2009 were before the Court. It was not clear what had happened to the originals of the 2000 and 2005 diaries, although Kim testified that they might have been mislaid because she had moved several times. She also testified that she had given the original of the 2000 diary, from which extracts were exhibited to her affidavit, to her solicitors, but that it had apparently been mislaid.

Having regard to the production of the originals of the majority of the diaries over the relevant period and the contents of those diaries, I consider that his Honour was entitled to conclude that there was no reason to think that the production of the originals of the 2000, 2002 and 2005 diaries would have taken the matter any further. That is particularly the case because Kim herself did not take advantage of the entry in her 2009 diary which said that Barry had asked her to marry him shortly before he died. This was brought to the attention of the Court by counsel for the State Trustees.

Support for Kim’s claim is also provided by photographs exhibited to Kim’s third affidavit. They include a photograph of a heavily pregnant Kim which she said was taken by Barry, and two photographs of Kim in hospital after giving birth to Alex, which Kim said were in Barry’s house and were returned to her by his relatives after his death. There were several photographs of Barry with Alex, including a photograph of them beside a Christmas tree with Barry wearing a Father Christmas hat, a photograph of Alex and another child in a miniature train with Barry, photographs of Barry and Alex in a swimming pool and on a tractor, and photographs of Barry helping Alex to ride a bike.

The approach to be taken in considering whether a trial judge’s ultimate finding was open was explained by Chernov and Eames JJA in Nolan v Nolan:[53]

Although the observations made by the High Court in Chamberlain (No 2)[54] and Shepherd[55] were expressed in the context of criminal proceedings, the principles also have application in civil cases.[56] Indeed, Tadgell JA explained in Longmuir[57] that, both in the civil and criminal law context, the evidence in question must be evaluated as a whole and that the object of the exercise in a case such as the present, where direct proof of the disposition contended for is not available, is to ascertain ‘whether the evidence paints a picture to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.’ Thus, it seems plain enough that, when a court is asked to infer a fact from various items of indirect evidence, it must consider the combined or cumulative effect of the evidence.[58]

That is how his Honour’s finding as to the nature of Barry, Kim and Alex’s relationship must be considered by this Court.

[53][2004] VSCA 109.

[54](1984) 153 CLR 521.

[55](1990) 170 CLR 573.

[56]Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125, 129 (Winneke P).

[57]Ibid 141.

[58][2004] VSCA 109 [120].

Family relationships have become increasingly diverse. Changes in the law have resulted in ties based on affection, rather than formal legal status, receiving greater recognition for a variety of legal purposes. Part IV itself recognises that a person may have a moral duty to provide for the maintenance and support of another person, even in the absence of a de jure marriage or a de facto relationship, or a parent/child relationship.

A man and a woman[59] may have an emotional commitment to each other akin to that of family members, even if they do not live together. Such a commitment may exist even though the parties are not financially dependent on one another and neither party contributes to the building up of the other parties’ property. The scope of Part IV is not confined to those in relationships which do not conform to traditional ideas about male/female and parent/child relationships.
[59]Or a same sex couple.

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

For these reasons, I consider that his Honour’s conclusion that the relationship between Barry, Kim and Alex was tantamount to a family relationship was neither ‘contrary to compelling inferences’ nor ‘glaringly improbable’.

I would therefore reject grounds 1 to 5.

The quantum of the orders — grounds of appeal 6 and 7

Having decided that Barry had a responsibility to provide for Kim and Alex, the trial judge was required to determine the amount of any provision which should be made having regard to the maters set out in s 91(4)(e) to (p) of the Act.[60] These are as follows:
[60]In his reasons, the judge considered the evidence on these matters in the context of deciding whether Barry had a responsibility to provide for Kim and Alex under s 91(1) and whether his will made adequate provision for them, as was required under s 91(4).

(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j) the age of the applicant;
(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n) the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p) any other matter the Court considers relevant.

The trial judge’s reasons
The size and nature of the estate (s 91(4)(g))

In considering the size and nature of Barry’s estate, the judge noted that there was some dispute about the value of certain small items in Barry’s estate, including the value of his last motor vehicle and some of his machinery. However, his Honour said that this had ‘little bearing on the ultimate value of the estate.’[61]
[61]Reasons [231].

His Honour accepted that the State Trustee’s final submission that Barry’s estate was worth approximately $1.6 million (net of CGT and estimated accumulated legal costs) was ‘a reasonable estimate of the value of the estate at the time’.[62] However, that estimate was based on the assumption that Barry’s properties at Gap Road and Deverall Road in Sunbury would sell for approximately $1.55 million.
[62]Ibid [232].

After the hearing, the Court was informed that the properties sold for $2.155 million (that is, $555,000 higher than expected). Accordingly, his Honour concluded that a reasonable estimate of the value of the estate is approximately $2.1 million.[63]
[63]Ibid [234].

Financial resources and needs of the applicants and beneficiaries (s 91(4)(h) to (j))

His Honour described Kim’s earning capacity as ‘at best very limited’,[64] with her only income being the disability pension and some part-time work as a personal carer.[65] His Honour said that, without provision from Barry’s estate, Kim would be largely dependent on social security and possibly some part-time work and would never be likely to own her own home.[66]
[64]Ibid [237]
[65]Ibid [238].
[66]Ibid [239]

Similarly, Alex who was aged nine at the time of the judgment, was found to have substantial financial needs,[67] and was wholly dependent upon Kim for support since Kim had been unable to obtain any child support payments from Alex’s father.[68] His Honour accepted the evidence of Hugh Sarjeant, an actuary, that the costs of raising and educating Alex to the age of 22 (including school fees at Salesian College, Rupertswood and paying HECs for a tertiary education) would be a total of $211,319.[69]
[67]Ibid [245].
[68]Ibid [242].
[69]Ibid [244].

His Honour found that the beneficiaries under the will had limited financial resources and substantial financial needs and, as required by s 91 (4)(i), took account of the disabilities suffered by some of them. Margaret, who was entitled to one‑third of Barry’s estate under the will, was 73 years old, and her sole income was the disability pension. She was in ‘extremely poor health’, had a ‘modest home’ which secured a $12,000 mortgage and had debts of approximately $20,000.[70]
[70]Ibid [247]−[250].

Similarly, Keith, who also received a third of the estate under the will, was aged 69, was suffering from bowel cancer and heart problems. He had no savings and was mainly reliant on the age pension for income (although he had limited income from a private pension with a capital value of $100,000).[71] An assessment of the needs of Margaret and Keith would necessarily have taken account of the fact that they were both elderly.
[71]Ibid [251]−[253].

Barry’s nephews and nieces, Karen, Steven and Christine were each entitled to a third of their deceased father’s share (that is, each was entitled to one ninth of Barry’s estate). Karen was a single parent with three teenage children, with whom she lives in rented accommodation. Karen does not work, and does not receive child support payments, though she was expecting to enrol in further education and receive a student benefit. Her sole means of support was the disability pension, rent assistance and a family tax benefit. She did not own any real estate, and to make ends meet, had been borrowing money from her mother.[72]
[72]Ibid [254]−[258].

Barry’s nephew, Steven, who was 42 at the time of the judgment, owned his own home, which was ‘heavily mortgaged’. His Honour found that he had ‘modest financial resources’, although he had a ‘better long-term earning capacity’.[73]
[73]Ibid [268]−[271].

Christine, who was then 37, has Down’s Syndrome and other health problems, and is incapable of living independently. She received a disability pension and earned $140 a fortnight from her work at Endeavour Industries. Her mother, Roslyn, gave evidence that Christine was close to Barry and gave evidence that he assured Roslyn that Christine would be cared for. In Kim’s affidavit in reply, she deposed that Barry was close to Christine, but that he considered his late brother Neil had ‘provided well for all of his children’, especially Christine, and that he did not ‘see it as his responsibility to leave [Christine] any more money’.

Applicants’ contribution to Barry’s welfare (s 91(4)(k))

His Honour found that Kim made a ‘significant contribution to Barry’s welfare as his close personal companion and sexual partner’[74] and by encouraging and supporting the development of his relationship with Alex.[75] He said that this contribution ‘was all the stronger because he was a man who had ‘problems with intimacy’, problems which he was able to overcome to a substantial degree with them.’[76]
[74]Ibid [284].
[75]Ibid [285].
[76]Ibid.

Although the practical help provided by Kim when Barry was ill was constrained by her own physical problems and the untidy state of his house, she had also contributed significantly to Barry’s welfare by caring for him when he was ill.[77] By loving Barry, who had no children of his own, as if he were his father, Alex had also enhanced Barry’s welfare.[78]
[77]Ibid [286].
[78]Ibid [289].

Contributions of other beneficiaries to Barry’s welfare (s 91(4)(p))

His Honour also took account of Christine’s contribution to Barry’s welfare through their loving relationship over a lengthy period. He did not regard any of the other beneficiaries as having made particular contributions to Barry’s welfare or to the building up of his estate. [79]
[79]Ibid [290].

His Honour also referred to benefits previously provided by Barry to Kim and Alex,[80] and modest benefits provided by him in maintaining Margaret’s house (s 91(4)(1)).[81] Apart from his Honour’s finding that Barry intended to make a new will making provision for Alex and Kim,[82] he did not regard any of the other matters in s 91(4) as relevant.
[80]Ibid [294]−[295].
[81]Ibid [296].
[82]Ibid [311].

In determining the amount of provision to be made under s 91(4)(c), his Honour said that the amount should:

reflect the promise he made to help Kim and to help her care for Alex. In terms of Barry’s responsibilities, that promise implies a proper degree of maintenance and support for both Kim and Alex, especially during his minority, reflecting his separate relationship with them. Barry’s intended new will must also be taken into account.[83]

[83]Ibid [338].

His Honour said that, at the same time, the provision should leave a ‘substantial amount’ for the beneficiaries identified in Barry’s will. He awarded Kim a lump sum $450,000, stating that:

the court should make an order in Kim’s favour for a substantial legacy. The amount should be enough, separately to the amount which should be ordered in favour of Alex, for Kim to buy (or contribute substantially to the cost of) a unit or other modest accommodation for her and Alex, and in which she can live when he grows up. I think an amount of $400,000 is appropriate for this purpose. I will add $50,000 as for contingencies.[84]

[84]Ibid [340].

His Honour awarded $400,000 for Alex’s benefit, on the basis that:

the court should make an order in Alex’s favour which will be sufficient to pay for his upkeep and education during his minority, for a motor vehicle when he turns 18 years of age and for a deposit on a home or investment property at that time.[85]

[85]Ibid [341].

Grounds of appeal 6 and 7 claimed that:

6. The learned trial judge erred in exercising his discretion under section 91 (4) (c) of the Act in ordering that the first respondent receive provision in the sum of $450,000, and that a sum of $400,000 be paid into Court to be held by the Senior Master for the benefit of the second respondent until he attains the age of 18 years, and in particular erred in the following respects:
(i) in finding that-
“The amount of provision for Kim and Alex should reflect the promise he made to help Kim and to help her care for Alex” (para 338) and that “Barry should be kept to the promise which he made to support Kim and help her care for Alex if she took her pregnancy to full term, which promise he faithfully kept himself when he was alive.” (para 352)
(ii) in failing to properly consider the indicia contained in section 91 (4) (e) to (p), inclusive, in particular sub paragraphs (h) and (i) as required by section 91 (4) (c), in deciding the amount of provision to award the respondents;
(iii) in consequence of the errors referred to in (i) and (ii) supra, his Honour made excessive provision for the respondents from the estate of the deceased.

7. In the exercise of his discretion under s.91(4)(c) in ordering the quantum of provision for the Respondents referred to in Ground 6 hereof, the learned Trial Judge:-
a. failed to consider properly or at all, alternatively
b. failed to play any or any sufficient weight upon,
the financial resources (including earning capacity) and financial needs of the existing beneficiaries in the Will.

Conclusion on grounds 6 and 7

The principle in House v The King[86] applies to decisions as to the quantum of orders made under Part IV of the Act. As I have explained, his Honour carefully explained the factors which he had taken into account in deciding the amount of the orders which should be made. His Honour had regard to all of the matters in s 91(4) which were relevant to the claim.

[86](1936) 55 CLR 499.

The purpose of the Act is not to give effect to promises made by testators, but rather to make orders which adequately provide for the maintenance and support of those for whom a testator has a moral responsibility to provide, by reference to the factors set out in s 91(4). Thus it would have been an error for his Honour to have determined the amount of the orders solely by reference to some specific amount that Barry had promised to leave Kim and Alex.

However, in my view, his Honour did not do so. Rather, he attempted to balance the financial needs of Barry’s siblings and nephews and nieces having regard to their age, health and other resources against the needs of Kim and Alex, with whom he had had a close and loving relationship in the last years of his life. In doing so, his Honour gave detailed consideration to the financial resources, earning capacity and financial needs of the beneficiaries.[87]
[87]Reasons [247]−[271].

His Honour’s reasons do not disclose any error of principle and the amount ordered does not demonstrate that such an error must have been made. In effect, his Honour ordered that slightly less than half of Barry’s estate be used to support Kim and Alex, with whom he had had a close and loving relationship in the last years of his life, whilst more than half of the estate was to be distributed to the beneficiaries under his will.

Grounds 6 and 7 fail.

For these reasons, I would dismiss the appeal.

TATE JA:

I agree with Neave JA.

DAVIES AJA:

I agree with Neave JA.

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[2012] VSCA 274

16 November 2012