Tsecouras v Price

[2006] NSWSC 701

CITATION:	Tsecouras v Price [2006] NSWSC 701
HEARING DATE(S):	3, 4, 5 July 2006
JUDGMENT DATE :	6 July 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	07/06/2006
DECISION:	Paragraph 90
CATCHWORDS:	Family Provision. Application under Family Provision Act by alleged de facto partner. Proceeding dismissed.
PARTIES:	Peter Tsecouras v Anne Price
FILE NUMBER(S):	SC 2280/05
COUNSEL:	Mr A.R Lakeman for defendant
SOLICITORS:	Hogan Geikie Poole for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 6 JULY 2006

2280/05 - PETER TSECOURAS v ANNE PRICE

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Diana Rosemary Keefe who died on 23 October 2003 aged eighty-one years. She was a single lady with no children and had not married.

2 The plaintiff is also a single man who appears to have no children and who claims to have been in a de facto relationship with the deceased. He appears in person.

The Will of the Deceased

3 The deceased made her will on 24 July 1992. Under that will she left her estate to eight friends equally and appointed one of them, the defendant Anne Price, as executrix.

Assets in the Estate

4 The estate consisted of the deceased’s home at 38 Glenview Street, Paddington worth $1.2 million and other assets worth $79,456. The estate was realised and was distributed on 3 June 2004 before these proceedings were commenced. The proceedings were commenced within time. Warning of the distribution was given to the plaintiff.

Family History

5 The deceased was born on 23 June 1922 and the plaintiff was born on 2 February 1936 in Greece. In 1945 Arthur Brown, one of the witnesses for the defendant, met the deceased. Another witness, a beneficiary Anne Price, who is also the executrix, met the deceased in the 1950s. The deceased had always lived at 38 Glenview Street, Paddington with her mother.

6 In 1955 Demetra Tsiamperlis came to live in the house next door to the deceased. At that stage the deceased’s mother was still alive and there was a close friendship between the deceased, her mother and Mrs Tsiamperlis.

7 It was either in 1958 or 1960 - and the difference is immaterial - that the plaintiff came to be a boarder at the deceased’s house. He had come from Greece in December 1958 and he first stayed as a boarder in a room at Ms Tsiamperlis’ property. After a few weeks he moved, and then came back again, by which time his room had been re-let. Arrangements were then made for him to become a boarder in the house of the deceased and her mother.

8 It seems clear that he continued there until May 1975. At that stage he left and went overseas for some six months because his father was ill. On his return to Australia there was no place available to him and he resided elsewhere.

9 At that time Lawrence (John) Moore, a godson of the deceased, was boarding with the deceased, he having commenced to board there in September 1975. Later he boarded there again between 1980 and 1981.

10 It is suggested by the plaintiff that between January 1983 and April 1983 he moved back in to the premises. This is not conceded and I will return to it later. However, what is perfectly clear is that in April 1983 he moved to a home at Zetland. That home had been purchased by him with his brother Con and the plaintiff has lived there ever since.

11 The deceased, as I have said, made her will on 24 July 1992 and died on 23 October 2003.

12 Between December 2003 and January 2004 the plaintiff gave instructions to his lawyers to act on his behalf and obtain advice from counsel at that stage.

13 A grant of probate was obtained in February 2004.

14 On 4 February 2004 there was a letter from the defendant’s solicitors to the plaintiff’s solicitors saying there was an intention to publish a notice of intent to distribute.

15 On 23 February 2004 the plaintiff filed a summons seeking orders against the defendant’s solicitors. A notice of intended distribution was published in the usual form on 25 February 2004. Following representations from the solicitors the proceedings against them were discontinued by the plaintiff on 9 March 2004.

16 On 3 June 2004 the administration of the estate of the deceased was completed by distribution. At the end of 2004 and early 2005 the plaintiff sought further advice from Hunt Bros, Solicitors and on 6 April 2005 he commenced these proceedings, some three weeks before the time limit for the commencement of the proceedings expired.

Eligibility

17 The plaintiff claims to be the de facto partner of the deceased. The plaintiff presented no case that he was involved in a close personal relationship with the deceased at the date of death. Although he did not present a case as having been part of the household of the deceased and partly dependent, I will give some consideration to that matter.

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

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

“Domestic Relationships.

(1) For the purposes of this Act , a domestic relationship is:
(a) A de facto relationship, or
(b) A close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
(2) For the purposes of sub-section 1(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or charitable or benevolent organisation).”

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

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

“4 De facto relationships
(1) For the purposes of this Act , a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in sub-section (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(4) Except as provided by s 6, a reference to this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this sub-section, was a party to such a relationship.”

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

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

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

25 The second requirement is cumulative. There must be both domestic support and personal care. It is the provision of “personal care” which provides the clue to the meaning of the composite expression “domestic support and personal care”. Some of the primary meanings of “personal” include:

(a) of or pertaining to concerning or affecting the individual person or self; individual; private; one’s own.
(b) of or pertaining to one’s person, body or figure; bodily.

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

(a) The person concerned;

(b) an employed valet or lady in waiting;
(c) a mother for her sick child, or
(d) a daughter for her elderly incapacitated mother.

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

Eligibility

28 As I have indicated, the plaintiff presented no evidence to suggest he was in a close personal relationship with the deceased at the date of death and, accordingly, I will not address that aspect and I will turn to the claim that he was a de facto partner at the date of death.

29 The plaintiff conceded that when he first went to the deceased’s house he went as a paying boarder. He says this changed at some later unspecified time to being in a de facto relationship which lasted for forty or forty-five years. He expressed the length differently in different affidavits but without fixing on any particular event for its commencement.

30 The plaintiff appeared in person and drew his own affidavits. He seems to have concentrated his efforts on his allegation about the extent of the relationship and the alleged existence of a sexual relationship. Other important matters such as reputation and public aspects were not advanced and when challenged about them in affidavits of witnesses he conceded that they kept their private lives private.

31 On the defendant’s case the plaintiff would call in to see the deceased after he returned from overseas every few months or so but that the deceased did not welcome these calls. Thus, whatever relationship it was seems to have persisted up until the date of death.

The Nature and Extent of Any Common Residence

32 Plainly the plaintiff resided at the deceased from 1958 or 1960 to 1975 when he left to go overseas in May of that year. He returned in November 1975. His room had been taken and he did not reside at the premises again except, perhaps, for some months in early 1983. On his case he then lived at Zetland with his brother Con. His brother Con gave evidence that the deceased never went to that house.

33 This is thus a case where there has been a substantial period where the plaintiff and deceased lived in separate residences. The deceased never went to his home and he conceded that after he ceased residing with the deceased he did not have a key to her home and did not know where the burglar alarm control panel was located.

34 As far as the nature of the relationship is concerned, it is plain that the plaintiff concedes that at its commencement he was merely a boarder paying rent for the small room which he occupied. His brother also rented a room for a few months but then left.

35 The change in the relationship which is alleged by the plaintiff would obviously depend on whether he and the deceased had a sexual relationship. To assess this claim it is necessary to see what the evidence addresses on this aspect. In considering this aspect one should not lose sight of other factors in this case, namely, the complete absence of any financial interdependence, the ownership of property together and any public aspects of the relationship.

36 The plaintiff’s case was that from the time that he stopped living at Paddington, he visited the deceased, they went out shopping together and returned to her home where he often stayed the night.

37 I turn to the various witnesses on this aspect. Anne Price is the executor and one of the beneficiaries. She knew the deceased since the early 1950s when her mother and Diana’s mother was friends. At that stage Diana was some eleven years older than her and they frequently went out together as children. Mrs Price’s mother bought a home in Glenmore Road, Paddington, around the corner from Diana and Mrs Keefe’s home at 38 Glenview Road, Paddington. She left home when she was living with her parents at about eighteen years of age and she said the plaintiff lived with Diana, Ms Keefe, as a boarder for about six months after that. Diana and Mrs Price used to go out together from time to time and when they went out she would often find Mrs Keefe, Diana’s mother, waiting for her when they came home. A close personal friendship resulted from that time together.

38 She was thus in a position to observe the nature of the deceased and she noted that she appeared self-conscious at that stage in her youth and did not like being alone with men. So far as her interaction with the plaintiff is concerned, she met him when he came to board at Diana’s house. At that stage she says she was also a boarder at the house. There were two rooms which were let out in the house with other rooms occupied by Diana.

39 She recalls that the plaintiff ceased boarding there at some stage when he went back to Greece to visit his father who was dying. She spoke of being aware that after he returned from Greece the plaintiff visited the deceased a few times. She gave evidence of conversations she had with the deceased and the deceased referred to these visits by the plaintiff. The deceased’s comments were that he came by to have tea, came unannounced, and sometimes she saw him lurking about outside. She indicated from time to time she was not really interested in seeing him. Apart from odd references to these visits she made no other reference to him.

40 So far as her observations of the deceased’s treatment of him are concerned, she saw he was treated as a paying boarder and referred to him in no other way, other than being one of her former boarders.

41 The other point which she made was the plaintiff was never present at the social gatherings held by the deceased at her house. He was not present at any of the dinner parties or social outings that she and the deceased had on a weekly basis.

42 At the end, after the death of the deceased, she said there were allegations that the plaintiff had made that he left some underpants at the deceased’s house. She and her husband and the neighbour carefully went through the house and she swears to the fact that there were no items of men’s clothing of any sort, nor any belongings belonging to any of her former boarders.

43 Although she is now elderly, she gave her evidence in a straightforward way and I accept that evidence.

44 I turn to the evidence of Arthur Brown. Arthur Brown also is a beneficiary. At the time he gave evidence before me he was ninety years of age. He knew Diana and her mother since 1945 and during all that time, since he first met her, she resided at 38 Glenview Street, Paddington. At that stage he was living in Liverpool Street, Paddington, which is about 200 yards away. He was married and ultimately his wife Alice died in 1990. He deposed to the fact that he and his wife went out for meals or went to dinner and Mrs Keefe’s house for dinner parties and sometimes the deceased would come to his house.

45 After Mr Brown’s wife passed away in 1990 he started seeing Diana on a more regular basis, sometimes twice a week. What he would do would be to meet her for lunch and dinners. They would also celebrate birthdays, Christmas and other particular events.

46 He said in about 1990, after his wife passed away, he spent just about every Christmas at Diana’s home except for 1998 when she went next door. He kept a diary, apparently, and there is in evidence entries from 1990 and 1991 in which he records his visits and lunches with the deceased and what he did.

47 It is plain that the friendship they had was one which did not involve any sexual relationship and it was one which arose because she was a lonely single person and he was a lonely person whose wife had died. He gave evidence of the nature of the deceased. Over the fifty-three years he knew her he could say she was not married, never lived in a de facto relationship, and he was never aware of her having a lover or a partner in all the years he knew her. He never saw her or observed her engaging in any intimate contact with a man.

48 He described her as a very independent and strong woman and during the many times that they went out she would not let him pay for her or even buy her a cup of coffee. He described her as a very proper woman who would not let him hold her hand and she was always very well composed in social situations, particularly in the presence of other men. Photos of the deceased show her as a pleasant enough woman who would probably fit the description given to her by Mr Brown.

49 As far as the plaintiff is concerned, Mr Brown recalls that he became a boarder and rented a room from Diana’s mother. He remembers him going overseas. He also remembers the way Diana spoke about him - she just simply referred to him as a paying boarder.

50 He also gave evidence that the plaintiff was not present at any of the dinner parties and social gatherings held by the deceased and her mother, and he was not present at any of the social functions which he and his wife attended.

51 He also ascertained as a result of discussion with the deceased that the plaintiff had been visiting her at her home unannounced after he left. Apparently the plaintiff dropped in and wanted to have a cup of tea and she was annoyed when he dropped in like that and did not know why he wanted to see her.

52 Mr Brown was ninety years of age at the time he gave his evidence. He was bright and alert and apart from a stoop he looked years younger. He was an intelligent man and gave his evidence in a forthright manner and I accept him as a witness of truth.

53 Demetra Tsiamperlis was likewise a beneficiary in the estate and met Diana, as I have mentioned, in 1955 when she moved next door to 36 Glenview Street, Paddington. They were very close friends until her death and they saw each other almost every day. They frequently ate meals together and often had coffee together. They apparently used to go to a club in Bondi once a week and they went shopping together and to the hairdresser. They helped each other in times of illness and would take each other on visits to the doctor and the like.

54 She recalls the plaintiff coming but, as I said, she herself let out a room to him for five or six weeks until he went to work for his uncle in the country. When he came back, as he did not have a room, she recommended him to the deceased and he commenced renting a room at the deceased’s property. She referred to the brothers of the plaintiff also being present and renting rooms but they apparently left, according to the witness, at the deceased’s request.

55 She also had a number of opportunities to discuss with the deceased the visits back to the house of the plaintiff. In one of them she recalled a conversation where, after such a visit, the deceased said,

“Peter Tsecouras has come back from Greece, he wants to rent a room again. I told him I have no beds left and he was upset that I had not left the bed available for him. Does he think I am his mother.”

56 She was also - particularly because one boarder had committed suicide at her home - not been keen to have any more boarders, except for her godson John.

57 Importantly, being the next door neighbour she said she can recall that the plaintiff did not move back into Diana’s house or rent a room after he returned back from overseas. This is important because her observations would be ones which would be accurate because she was in the house virtually on a daily basis and if he did move back in 1983 for a period of three months obviously that would be plain to her.

58 She also recalls later occasions when apparently the plaintiff rang the deceased and wanted to come over for coffee. The deceased would then ask the witness to come in from next door at the time to be there when he arrived. Apparently this happened about twice a year.

59 She was obviously quite close to the deceased and she gave evidence that they talked intimately over the forty-eight years of their friendship. The deceased never spoke of having any boyfriend, lover or partner, nor did she see the deceased engage in any sort of relationship with a man. She described her as a strong lady and she had never seen her hold a man’s hand. She described her as crossing her legs in the presence of a man and she always wore longer skirts down to her ankles. She was very conscious about not showing any part of her body to anyone, particularly to men.

60 She participated in the searches through the house when the deceased’s things were packed up and found absolutely no evidence of any man’s clothing or items belonging to the plaintiff or any other form of boarder.

61 Plainly enough she was in a good position to know who was visiting the deceased and would have observed any such relationship which the plaintiff alleges to have happened if it had existed. I accept her as a witness of truth.

62 Lawrence Alan Moore is also a beneficiary and had known the deceased most of her life. The family association was that their parents knew each other for seventy-five years and they had known each other since school days. His family originally lived in Darlinghurst in 1969 but then moved to Earlwood and, despite that relocation, kept in touch. He would take Diana to various outings and to family events. He lived with the deceased as a boarder on two separate occasions, the first time in September 1975 and the second in 1980-81. He paid money for his room. They were both members of the Eastern Suburbs Leagues Club and would go there occasionally for dinner.

63 He recalls having met the plaintiff when he was a boarder at the deceased’s house. He and his brother often visited the deceased at her home and he saw the plaintiff arriving and leaving the house like all other boarders. According to his observation the deceased treated him just like all other boarders and he did not notice any special or other different relationship between them. He did not observe any special treatment. When he moved in in 1976 the plaintiff had left some time before. Occasionally the plaintiff dropped in when he was there and had an occasional chat but there was no physical contact or any emotional interaction between them according to his observations.

64 After he ceased residing there in 1981 he continued to visit and occasionally the plaintiff would arrive unannounced. The deceased would let him and offer him tea or coffee and the witness described her attitude towards him as neutral. When she was ready to go to bed both he and the plaintiff would leave and he would often give the plaintiff a lift back to the city. He did not see him at the house again after the early 1990s.

65 Plainly he has had an opportunity to observe but not as good an opportunity as some of the other witnesses. I thought Mr Moore was a thoughtful person, and accurate in giving his evidence. He was not shaken and I accept his evidence.

66 The only other evidence of observations called by the plaintiff was his brother Con and he claimed to be a witness to his brother’s de facto relationship. He gave no detail and was only there a few months. I find it most unlikely that any further relationship had started. Thus he had nothing to observe. He said she never came to the home at Zetland and he took phone call messages from her. The extreme generality of evidence is of no assistance.

67 There is a serious question concerning the credit of the plaintiff. He has appeared in person throughout and this has created for him the usual difficulty that occurs with a person appearing for themselves.

68 I turn first to deal with his demeanour. In his conduct of the case when giving evidence he was an advocate and avoided the question by engaging in debate. This happened frequently despite warnings. This advocacy obviously enabled him to avoid the question and the transcript reflects these occasions when he failed to answer questions and went on despite warnings several times.

69 On another occasion he refused to answer a question as to who was the secretary who prepared his affidavit. After refusing several times to do so I directed him to do so and he still refused. I did not take any further action at that stage. It was plain he was prepared to refuse to obey a direction of the court.

70 He attempted to tender documents without the other side seeing them. When he handed up submissions and I made a direction that they were to be given to the other side so they could see what was being handed to me, he tried to snatch them away. He insisted on using the Greek interpreter; this after he spent forty-five years in Australia, and he claimed it was needed because of the difficulties with court terms. It seemed perfectly plain to me he understood my rulings on questions without any interpretation of them. As he spoke to his secretary in English he clearly could communicate sufficiently to get his affidavit prepared.

71 On his demeanour alone I would not accept him as a witness of truth and would need corroboration before accepting his version.

72 However, it goes further than this, as there were inconsistencies in his story which in a sense reflect on his credit. He could not state the birthday of the woman he had a de facto relationship with for forty-five years. He celebrated his, his name day and when he came to Australia and his excuse for not knowing her age was because he said women do not like disclosing it. That could be true but I would have thought it extraordinary that there would not be some discussion of her birthday if the relationship was of the type he asserted to the court. He even had difficulty in giving any indication of their relative age differences.

73 He failed to call any independent witness to support his case. The obvious one was his friend, Mr Panaretos who lived at the premises at Paddington when he lived there. He even had his phone number but did not call him. He frequently misstated the deceased’s name, calling her O’Keefe and not Keefe. The same thing occurred in the Coroner’s court. I would have thought the plaintiff would have taken some care about such matters, especially in relation to a woman with whom he lived for all those years.

74 Another strange incident happened after the death of the deceased. He made a request that he take the stove out of the premises. Why he would want to do so I don’t know: but this seems inconsistent with someone who said they were as wife and husband although not married.

75 The evidence he presented in affidavit differs from the story he told his solicitor when he earlier sought advice. What happened was that when he started the proceedings against the solicitors he served copies of all the letters that he had with his solicitors and their file notes of the advice which he was given, thus obviously waiving any privilege. Those file notes are instructive in that they say that he claimed he rented a room at the outset, then became the lover, lived there for many years until 1983. Then he described the relationship as boyfriend till about two years ago. He talked about maintaining the friendship until death, obviously over the last couple of years. He paid rent whenever he stayed there. He had no rights to move back there and he did not contribute to any of the conservation of the property.

76 That story does not suggest that they lived in a de facto relationship to the full extent that it was suggested by the plaintiff in his affidavit evidence. It may be that the advice which he had, which was he would not succeed, has led to the change in his story.

77 There is another matter and that is the complete absence of any photographs, cards or letters from the deceased. There is also no evidence of any statement the deceased may have made to any other person confirming that there was a relationship whether sexual or otherwise with the deceased. These matters are properly admissible and if there were any doubt they might have been made to people such as the friend whom he did not call.

78 There is also some documentary evidence in the case and that comes from what was a jury notice that the plaintiff received. The section that deals with being excused from jury service was attached to one of the plaintiff’s affidavits. That was completed by the deceased in her handwriting. She gave the information that the person, namely the plaintiff, cannot read or understand English and therefore should be excused from jury duty. She as required to state the relationship to the person on the jury roll and she put there “friend”.

79 There was a strange matter of security cameras. It is apparent from the evidence of Mrs Tsiamperlis that she installed a burglar alarm in 1998 and a week or so later the deceased also had an alarm installed. The plaintiff has been labouring under the misapprehension that there were cameras in the property. No doubt he was referring to what were sensors which may have given the appearance of cameras. It is plain from all those who actually saw it that it was a burglar security alarm.

80 The evidence given by the plaintiff included the fact that he did not know where the controller for this burglar alarm system was located. He also, as I have recounted, said he did not have a key to the house. Thus these factors are quite inconsistent with the plaintiff being a person who says he was a de facto partner who stayed the night and had a sexual relationship over a period of forty-five years.

81 Having regard to the matters I have mentioned, including:

(a) The failure to call independent witnesses;
(b) The ability of the defendant’s witnesses to observe if there was such a relationship with the deceased;
(c) The evidence about the deceased’s character and personality;
(d) The documentation in the case:

82 I do not accept the plaintiff’s claim that a sexual relationship existed between himself and the deceased. Also, I do not accept that he lived there for a few months in 1983. I am thus satisfied that he had resided there between either 1958 and 1960 and 1975 and at that time he was a paying boarder.

83 In these circumstances, and bearing in mind the lack of evidence to suggest:

(a) Any public aspect of the relationship;
(b) Any commitment to shared life;
(c) Any financial interdependence;
(d) Any joint use or acquisition of property:

84 I am satisfied that the plaintiff was not in a de facto relationship with the deceased at the date of death.

85 I should address whether the deceased may have been in 1960 to 1975 part of the household of which the plaintiff was a member and also partly dependent upon him. The question of “household” has been discussed in a number of cases over the years and there is extensive discussion in Kingsland v Macindoe [1989] VR 273. It seems clear that the word in its ordinary sense is as set out in the Oxford Dictionary:

“The ‘holding’ or maintaining of a house or family; housekeeping; domestic economy...the inmates of a house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment.

86 McClelland J in Munro v Lake (unreported, NSWSC 8 February 1991) dealt with the situation where a stepdaughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements.

87 In Markulin v Drew (unreported, NSWSC 12 August 1993) Young J dealt with the matter at some length:

“In Benny v Jones supra, I said that the question of what is a household in this legislation was awkward. I then reviewed a series of cases in Canada and North America dealing with exceptions to insurance policies whereby damage to members of the insured’s household are not covered. As I mentioned in Benny v Jones the cases have taken the view that one cannot have a household of one, a household involves the existence of a householder and that a household consists of the members who live in the domestic establishment including servants and attendants.
The word is wider than family. In Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577, 580 Rand J in the Supreme Court of Canada noted the difference between people who were in the household and those who were of a household. He said ‘The circle of those “in” is larger than those “of”, a good example of which is furnished by the case of Home Insurance Co v Pettit 143 So 839 (1932). There the exception was of theft by a person “in” the household of the insured and an uncle, temporarily a guest of the insured’s father was held to be of that description. See also Calverley v Gore District Mutual Fire Insurance Co (1959) 18 DLR (2d) 598, 606 where a live-in farm hand was held to be a person in the household but not of the household. IN that case Schroeder JA in the Ontario Court of Appeal said that a person “in the household” can more easily disengage himself from that relationship or association than a person who falls within the more intimate category.’
It is to be noted that in the instant statute the words are ‘of the household’. In Kingsland v Macindoe [1989] VR 273, Gobbo J had to look at the words ‘member of the household’ under the Victorian Crimes (Family Violence) Act . His Honour considered under that Act persons whose sole relationship was that of sharing a house did not qualify as members of a household. He did, however, thoroughly discuss the English, Australian and Canadian authorities on the meaning of the word ‘household’.
In the Court of Appeal in Benny v Jones it would not appear that any of the authorities which I considered in my judgment or those which Gobbo J considered in Kingsland’s case were referred to the Court. Priestley JA, however, did deal with the question of what is a household in (1991) 23 NSWLR at 564.
From the report it would not appear that any of the decisions referred to in my judgment on the question of household were referred to the Court of Appeal or that they looked at them. Priestley JA merely said: ‘I do not see there is any meaning of the phrase “a member of a household of which another person was a member”, which would not encompass the way in which the plaintiff lived in the same house as his friend for three and a half years.’
Although Priestley JA has given the leading judgment in the majority of the cases on this Act that have gone to the Court of Appeal and anything that falls from his Honour is of tremendous value whether obiter dicta or otherwise, I think it would be inappropriate to put too much weight on this dictum if it is out of line with other judicial pronouncements on the concept of household.
Needham J in Moloney v Goodwin (1 August 1989) was clearly of the view that before one could have a household one had to have a quasi-family unit. Whilst a mere boarder would not be ‘of the household’ a boarder who supported the deceased like a brother or son might have done, did qualify. In the instant case Mr and Mrs Markulin and their daughters on any description of the word ‘household’ constituted a family unit. There is no doubt that Mrs Markulin was a member if not a co-head of that family and household. The problem is whether, on the evidence, the deceased was a member of that household, at least between 1982 and 1985.
In Munro v Lake 8 February 1991, unreported, McLellanbd J considered whether a stepdaughter who had regularly visited the deceased’s home and stayed from Friday to Sunday night with her mother, the deceased’s wife, was a member of the deceased’s household. His Honour, after referring to my decision in Benny v Jones and Kingsland v Macindoe [1989] VR 273 said: ‘The concept of membership of a household...connotes a degree of continuity and permanency of mutual living arrangements...’.
He considered that apparent regularity of weekend visits would not be sufficient to make a person a member of a household. In Wagstaff v Wagstaff , a decision which Windeyer J gave when a Master of 6 December 1991, his Honour had to deal with the situation where the applicant, Nancy, was a former workmate of the deceased who had borne him a child. The deceased was still living with his legal wife at the relevant time. However, for some time the deceased would visit Nancy twice each day during the week for breakfast and in the evening and would also see his child. He also visited every Saturday and Sunday but only on one occasion did Nancy, the deceased and the child go away together for a weekend. Nancy gave evidence that on his visits the deceased would change out of his suit into casual clothes, play with his daughter, and then change back into his suit to go home.
Windeyer J said there was no doubt at all that the principal household of the deceased was with his wife, but then said:
‘The question is whether or not he was also a member of the household of [Nancy]...I accept that it may be possible in special circumstances to be a member of more than one household at the same time.
Mr Green probably managed that; see Green v Green (1989) 17 NSWLR 343. But the ordinary meaning of being a member of a household requires the member to live in that household. A child living at home with the family is a member of both family and household but upon moving out to live elsewhere remains a member of the family but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient...


It follows that the plaintiff is not an eligible person and her claim should be dismissed with costs.’

Windeyer J’s statement that it is possible to be a member of two households must, in my view, be completely correct. It is not at all uncommon in this day and age that a child of a broken marriage will stay with his or her father from Friday night to Monday morning because the mother works weekends, and will live with his or her mother from Monday through to Friday because the father works weekdays. The child may very well have clothes and toys and books at both the mother’s home and the father’s home. The child would clearly be in two households.

Likewise, the Mr Green to whom Windeyer J referred who had a legal wife and two de facto wives whom he kept in ignorance of each other’s existence and managed to spend roughly two days a week with each, may well have been involved in three households in all of which he may have been the householder.
Accordingly, I accept that it is possible for Mr Ackerman to have been a member of the Markulin household even though he may also have been a member of the Legge household or he was a member of a household involving his suite at the Airport Hilton Hotel. If, however, the American cases are correct that it needs more than one person to constitute a household, there was no household involved with the deceased’s suite at the Airport Hilton Hotel. It is not necessary to go into that matter further.
The only other decision that I think I need refer to is the decision of the Court of Appeal in Light v Anderson (1992) DFC 95-120. I have already set out its facts. The Court of Appeal never appeared to consider whether the plaintiff was a member of the household, presumably it was common ground that such a housekeeper was a member of the household. If she were not a member of the household it is hard to see how the court could possibly have made an order.
It seems to me that what is to be learnt from the cases, particularly the Court of Appeal decisions in Benny v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provision Act provided that there is in fact a household and that the plaintiff has some intimate connection with the householder or another member of the household even though the plaintiff does not fall into the category of a quasi-wife or quasi-child.
Thus, a fellow birdwatcher who lived in the house and shared expenses with the deceased was a member of the same household as was a live-in housekeeper who was paid a moderate wage, went away on trips with the deceased and had sex with him on more than a casual basis could be a member of the household even though she was in no way a de facto wife. It was important that she was not a mere housekeeper or employee either. When I use the words ‘intimate connection’ I do not limit that to persons with whom there is a sexual relationship. The bond between them, however, must be quasi-familial or that of a friendship rather than that of landlord and boarder or master and servant. However, there is nothing to stop a person who enters a house as a servant ending up as an intimate friend.”

88 Having regard to my findings in no sense could the plaintiff be part of the family unit and thus part of the family household. He had a room for which he paid and lived his own separate life. There also does not appear to be any evidence of dependency. In those circumstances he is not an eligible person.

89 I also record that the plaintiff presented no evidence of how he had been left without adequate provision for his education, maintenance and advancement in life. Indeed, he presented no information as to his financial circumstances. This is only consistent with him bringing these proceedings for some other purpose, the chief of which appears to be using this as a vehicle to complain about his being left out of the deceased’s will because of some perceived plan of the beneficiaries. There is absolutely no evidence of any such plan as the ones which appeared before me did not even know that they were included in the deceased’s will until after she died.

90 I dismiss the proceedings and I order the plaintiff to pay the defendant’s costs. I order the exhibits be returned.

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