Pollock v New South Wales Trustee & Guardian

These proceedings concern the estate of Geoffrey James Benfield (the deceased) and the claim brought by the Plaintiff, Christine Winifred Pollock, for an order seeking provision under Ch 3 of the Succession Act 2006 (NSW) (the Act), and an order for her costs of the proceedings to be paid out of the estate.

A family provision order is one for the maintenance, education, or advancement in life of an eligible person. Relevantly, the Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

The deceased died on 26 September 2020, aged 70 years. He married his wife, Beverley Dawn Benfield, in March 1972 and they separated in 1996. A divorce order was made in relation to their marriage on 12 January 1999 and it became effective on 13 February 1999 (Ex. D1).

There were three children of the marriage being, Trenton James Benfield, who was born in April 1974, Dean Andrew Benfield, who was born in June 1976, and Wayne Mark Benfield, who was born in July 1979. Each was a witness, whose affidavits were read in the Defendant’s case, and each of them was cross-examined.

For the sake of convenience and clarity, I shall refer to the witnesses, after introduction, by his, or her, given name. No undue familiarity is intended.

The deceased left a duly executed Will made on 13 October 1978, in which he appointed the Public Trustee in, and for, the state of New South Wales, as the executor and trustee of his estate. Paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 (NSW), which commenced on 1 July 2009, provides that a reference to the Public Trustee is to be read as a reference to the NSW Trustee and Guardian. By Paragraph 11 of Schedule 1, the NSW Trustee and Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee and Guardian is constituted as a corporation by s 5 and has the status of a NSW Government agency by s 6 of the NSW Trustee and Guardian Act.

This Court, on 27 April 2021, granted Probate of the deceased’s Will to the NSW Trustee and Guardian, which is the named Defendant.

In the Will, the deceased left the whole of his estate to Beverley. In the event that she did not survive him by 30 days, the whole estate was left to his then two children, and any other child, in equal shares.

As a result of s 13(1)(a) of the Act, the divorce of a testator revokes, relevantly, a beneficial disposition to the testator's former spouse made by a Will in existence at the time of the divorce. No contrary intention appears in the deceased’s Will: s 13(2). Pursuant to s 13(4) of the Act, if a disposition is revoked by the section, the Will takes effect, in respect of the revocation, as if the testator's former spouse had died before the testator. In this case, it follows that the whole of the deceased’s estate passes to his three, now adult, children, in equal shares.

In the circumstances, no provision was made for the Plaintiff by the Will of the deceased.

The hearing was listed for four days, commencing on 7 June 2022, and was completed within that time. Mr P Wallis of counsel appeared for the Plaintiff, and Mr L J Ellison SC, with Ms A Djukanovic of counsel, appeared for the Defendant.

The Plaintiff’s Summons was filed on 9 July 2021, within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. The Plaintiff asserted, and the Defendant disputed, that she is a person with whom the deceased was living in a de facto relationship at the time of his death: s 57(1)(b) of the Act. The Defendant did accept, however, that the Plaintiff had been a person with whom the deceased was living in a de facto relationship for a period of time, but asserted that the relationship had ended by December 2012, that is to say, before the time of the deceased’s death.

The Defendant also accepted that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(e) of the Act, namely that she was a member of the household of which the deceased was a member and was wholly, or partly, dependent on him at that particular, or any other, time. (The Plaintiff relied upon this ground of eligibility in the alternative.)

In their written submissions, counsel for the Defendant wrote that the Plaintiff is an eligible person within s 57(1)(d) of the Act, namely that she is “a former spouse” of the deceased. Whilst it is not necessary to determine whether that submission is correct, it seems to me, that the concession is not one that should be accepted as a matter of construction of the section. Section 57 differentiates between a person who was the spouse of the deceased at the time of his, or her, death (s 57(1)(a)) and a person with whom the deceased person was living in a de facto relationship at the time of the deceased's death (s 57(1)(b)). Had it been intended to include the latter person in s 57(1)(d), which refers only to a former “spouse” of the deceased person, one might have expected that the words “or the person with whom the deceased person was formerly living in a de facto relationship”, or some similar wording, would have been included in s 57(1)(d) of the Act.

In the case of a person who is an eligible person by reason only, relevantly, of sub-paragraph (e) of the definition of "eligible person" in s 57, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act. That turns on whether she would be generally regarded as a natural object of the deceased’s testamentary recognition.

The Defendant did not dispute that, relevantly, and if it was necessary to establish this precondition to the making of an order, there are factors warranting the application (as an eligible person under s 57(1)(e) of the Act). That concession was properly made.

Assuming that the Court is satisfied that the Plaintiff is an eligible person and, if it is necessary, that there are factors warranting the making of her application, the Court must then be satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life, of the applicant, has not been made by the Will of the deceased: s 59(1)(c) of the Act.

Counsel for the Defendant did not dispute that adequate provision for the proper maintenance, or advancement in life, of the Plaintiff had not been made by the Will of the deceased.

What must then be determined is, what order for provision out of the estate of the deceased, if any, ought to be made for the maintenance or advancement in life of the Plaintiff, having regard to the facts known to the Court at the time the order is made: s 59(2) of the Act. The Defendant submitted that what provision ought to be made depends upon the category of eligibility that is established. (It may be that this reason provides a basis for the matter being so strenuously defended.)

Section 65(2) of the Act requires the Court to specify, relevantly, how the provision is to be made, including by payment of a lump sum of money. There was no dispute that the Court should require the provision to be made in this way. Again, the Defendant only disputed the amount of the lump sum of money that would be specified in the family provision order.

As the deceased dealt with all his estate in his Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary to refer to the Will of the deceased.

An order may be made in relation to property that is not part of the deceased’s estate, but which is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

There was no property that could be designated as notional estate of the deceased. It follows that it is only necessary to refer to the estate of the deceased.

The eligible persons, within the meaning of that term in s 57 of the Act, include the three children of the deceased. Whilst none of them has commenced proceedings for a family provision order, each, as a beneficiary, has given evidence of the bases, financial, and otherwise, of his claim, respectively, upon the bounty of the deceased. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though he, or she, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and his, or her, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. I shall refer to each beneficiary’s situation in life, later in these reasons.

The other eligible person identified is the deceased’s former spouse, Beverley, who is the mother of the three children. A notice of the application, and of the Court's power to disregard her interests, in the manner and form prescribed by the regulations or rules of court, was served on her, by the Defendant, on 29 July 2021. Perhaps, unsurprisingly, she has chosen not to make an application for a family provision order. However, she is a witness whose affidavit was read in the Defendant’s case, and she was cross-examined. In the circumstances, the Court will disregard her interests as a person who has not made an application: s 61 of the Act.

In this case, as the deceased made a Will, the family provision order that is to be made takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased: s 72(1)(a). There is no reason to make an order otherwise.

In a claim for a family provision order, factual context is necessary. It is convenient, next to set out some of the background facts, since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are not in dispute. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

The deceased was born in February 1950. At the time of his death, in September 2020, he was 70 years old.

The Plaintiff was born in August 1951 and is now almost 71 years old.

The Plaintiff first met the deceased in 1968 when they were both teenagers.

In April 1972, the Plaintiff married Ross Pollock. I have already noted that the deceased and Beverley married in March 1972. All four remained friends, during the respective marriages. They attended the home of the other, went out to dinner, and otherwise socialised together.

The deceased and Beverley moved to the Glenorie property in about 1979. I have already referred to the three children of the marriage.

The Plaintiff and Ross had two children, namely, Bettina Helen Pollock, who was born in July 1978 and Sarah Jane Pollock, who was born in May 1981. The deceased was the godfather to Bettina. The affidavits of each were read in the Plaintiff’s case, and each was cross-examined.

In about 1988, Ross accepted a job in Adelaide and the Plaintiff, he, and their two children, relocated there. On occasions, the deceased and Beverley would visit them there, and the Plaintiff and Ross would visit the deceased and Beverley when they visited Sydney.

In April 2000, the Plaintiff and her husband agreed to separate and in June 2000, Ross left the family home. (There was no evidence of their subsequent divorce.)

In about September 2000, almost 2 years after his divorce, the deceased and the Plaintiff formed a romantic relationship.

In June 2001, the Plaintiff sold the former matrimonial home in Adelaide and returned to Sydney with her two children. The Plaintiff and her daughters lived in a home she purchased, in early April 2002, at Kellyville. However, she would spend most weekends with the deceased, at the Glenorie property, and she also visited him there during the week.

In about March 2009, the Plaintiff sold the home at Kellyville and moved into the Glenorie property with the deceased. It is not in dispute that the Plaintiff was a person with whom the deceased was living in a de facto relationship between 2009 and late 2012. Whether that relationship continued thereafter, and if so, for how long, is the subject of dispute in these proceedings.

There were no children of the relationship of the deceased and the Plaintiff.

From the proceeds of sale of the Kellyville property, the Plaintiff gave each of her children a sum of $100,000, which was used towards the purchase of a property by each of them. This was done with the knowledge, and encouragement, of the deceased. (There was an issue raised about the amount given to Bettina and whether it was lent back to the Plaintiff. There was no specific contemporaneous evidence of the existence of a loan.)

It is not entirely clear whether there was any agreement made between the Plaintiff and the deceased to keep their assets separate, but it was undisputed that the deceased paid for most, if not all, of their joint expenditure. They travelled together, on holidays, both in Australia and overseas.

The deceased was an avid motorcycle rider. He was injured, in motorcycle accidents, a number of times, twice seriously, before his death. One of the areas of disharmony that came to exist between the Plaintiff and the deceased was said to be the Plaintiff’s refusal, after about 2012, to go riding, as the pillion passenger, with the deceased, on his motorcycle.

The Plaintiff admitted that there was discord between them between about 2013 and 2015, which seemed to escalate in the period between 2015 and 2017. She acknowledged that “our relationship would’ve suffered between mid-late 2013 to mid-late 2015 (…) due to the stress and anxiety”, which she attributed, at least in part, to some relationship, and pregnancy, issues that Bettina was going through. She gave evidence, in cross-examination, that the deceased had not been supportive of her during this period. Indeed, he had complained, more than once, that she was devoting more time to her two children, and her grandchild, than she was devoting to him.

The Plaintiff gave evidence that, in about July, or August 2015, the deceased told her that he was taking another woman to dinner. She expressed her displeasure at this revelation. However, this did not cause the deceased to change his plans. Apparently, a relationship with the other woman lasted for about 6 weeks thereafter. Unsurprisingly, this caused, and continued to cause, some tension in the relationship. However, it did not cause the deceased to terminate the relationship with the Plaintiff.

On 3 May 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

The Schedule that was provided to the Court in hard copy, was marked as Ex JS1.

At the commencement of the hearing, when the Court went through Ex JS1, senior counsel for the Defendant stated that he had a different version of the document and that there was a dispute whether one of the assets (with an estimated value of $2,470,637) would be able to be realised for that amount, or at all. This meant that on the Defendant’s case, the value of the deceased’s estate, at the date of the Schedule, was different from that appearing in the Schedule.

It was obvious that the value of the estate, at the date of the hearing, would be significantly affected if the relevant asset was of lesser, or no, value (as the Defendant seemingly asserted). Agreement between the parties on this topic, could not be immediately reached and the case proceeded with the parties, and the Court, not knowing the value of the deceased’s estate at the date of the hearing. The parties were requested to resolve any question relating to this dispute as soon as possible.

The Court raised the question of the value of the deceased’s estate again several times during the hearing, and senior counsel for the Defendant, on one occasion, stated that his instructing solicitor would attend the Court later in the day (after witnesses who were giving evidence remotely had concluded giving evidence) with an amended Schedule.

(During submissions, I indicated that the evidence of the value of the shares in a private company that was said to be in dispute (as to its realisable value), was in the order of $2.4 million and I would use the estimate of value to estimate the value of the estate (see Tcpt, 8 June 2022, p 99(26)-100(10).)

At approximately 1:45 p.m. on 9 June 2022, senior counsel for the Defendant provided a copy of an amended Schedule to the Plaintiff’s counsel and to the Court. The Court then endeavoured, once again, to clarify the nature and value of the estate at the date of the amended Schedule. This was not able to be resolved as there appeared to be material differences between the amended Schedule and Ex JS1 that were unable, then, to be explained.

In the circumstances, the Court had no choice but to allow the legal representatives of the parties a further opportunity to provide an updated Schedule to the Court, after the conclusion of the hearing.

At approximately 1:30 p.m. on Friday, 10 June 2022, another Schedule identifying the assets and liabilities of the estate at the date of the Schedule, was provided to the Court in Chambers. Without objection, this document was marked as Ex JS2.

In proceedings in which a claim for a family provision order is sought, at the pre-trial directions hearing, usually held 1 month before the hearing commences, the Court makes a direction in the terms set out above in order, amongst other things, to avoid unnecessary time being spent, at the hearing, debating the nature and value of the estate (or notional estate). One might be forgiven for thinking that careful, and considered, advice could not be provided to the parties, or beneficiaries, if, prior to the commencement of the hearing, if not well before, the legal representatives are not able to agree upon the nature and value of the deceased’s estate (and notional estate), or, at least, identify the value of the assets in dispute between them.

I have taken what follows from the Agreed Schedule, dated 26 May 2022 (Ex JS1), from discussions with counsel during the course of the hearing and the Amended Agreed Schedule, dated 10 June 2022 (Ex JS2). (I have omitted and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

The deceased’s estate, at the date of death, comprised the real property at Glenorie, a suburb of Sydney, about 44 kilometres north-west of the Sydney central business district ($1,900,000) (the Glenorie property), monies in the bank ($204,848), interests in several family companies including, Rynever Pty Ltd ($2,470,637), one share in Benfield Investments Pty Ltd ($1.00), an interest in Alliance Metal Solutions Pty Ltd ($330,432), and a death benefit in Benfield Investments Staff Super Fund ($934,942). In addition, there was the deceased’s interest in the Benfield Family Trust ($469,057). The estimated gross value of the deceased’s estate, then, was $6,309,916.

The liabilities of the estate, at the date of death, which totalled $20,228, included a debt to Ambulance NSW ($549), the costs of obtaining a death certificate ($49), credit card debts ($6,310), and reimbursement of the funeral expenses ($13,320).

The funeral expenses were mostly those paid by the Plaintiff, but also partially paid by the deceased’s sons, see Ex JS2. As at the date of the hearing, the Plaintiff had not been reimbursed for the funeral expenses that she had paid: Tcpt, 9 June 2022, p 199(1-3).

The estimated net value of the deceased’s estate, then, was $6,289,688.

The deceased’s estate, at the date of Ex JS2, comprised the Glenorie property ($2,800,000), monies in the bank ($204,847) (pending collection), interests in several family companies including, Rynever Pty Ltd ($2,416,637) (pending sale/transfer), the share in Benfield Investments Pty Ltd ($1), the Death Benefit in the Benfield Investments Staff Super Fund ($640,884), the interest in the Benfield Family Trust ($442,333) (yet to be paid), cash held by the Defendant ($266,313), shares in IAG ($4,195), and household contents ($24,915). The gross value of the estate, based on these estimates, is $6,800,127.

The liabilities of the estate, excluding the costs of the proceedings, which had already been paid out of the estate totalled $389,911. The unpaid liabilities were said to total $184,130.

The parties also agreed that another liability to be paid will be the costs and expenses of sale of the Glenorie property (estimated between $53,780 - $63,180), if it is sold. At the hearing, they agreed that the mean of the two estimates ($58,480) should be taken to be the estimated costs and expenses of sale: Tcpt, 7 June 2022, p 10(10-18).

It follows that, subject to the orders for costs, if any that are made, the estate of the deceased has a value, at the date of hearing $6,557,517. It is a large estate.

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

The Plaintiff’s costs, calculated on the indemnity basis, were estimated to be $130,500 and, calculated on the ordinary basis, to be $91,350 (in each case, inclusive of GST, and based upon a hearing of 4 days duration). Costs of the proceedings, totalling $2,817, have been paid by the Plaintiff.

The solicitor for the Plaintiff stated in his affidavit of costs that there was a conditional costs agreement made with the Plaintiff. At the hearing, and from the Bar table, without objection, the Court was informed that the costs agreement did not include any uplift factor: Tcpt, 7 June 2022, p 16(37-41).

The Defendants’ costs, calculated on the indemnity basis, were estimated to be $139,365 (inclusive of GST, and based upon a hearing of 4 days duration). Costs or disbursements, totalling, $15,365, have been paid from the deceased’s estate, leaving $124,000 left to be paid.

Accordingly, if the estimated costs of the parties ($215,350) are ordered to be paid out of the estate, and if the estimate of each party’s costs proves to be accurate, the value of the net distributable estate out of which an order for provision can be made is $6,342,167. It remains a large estate even after the payment of costs (if orders for costs are made).

At the commencement of the hearing, the Court asked whether how costs are to be paid could be determined as part of these reasons, to which counsel replied that there may be documents that are relevant to the determination of costs. It follows that there may have to be further consideration given to the issue of costs following these reasons being published.

When I deliver these reasons, I shall stand the matter over for a period of time to allow the parties to see if agreement as to the costs orders that should be made, including, in the case of the Plaintiff, whether a specified gross sum instead of assessed costs, can be reached. If agreement cannot be reached, it will be necessary to list the matter for the hearing of argument.

It is obviously impracticable to set out the contents of the affidavits or the cross-examination in full. However, this is a case that is particularly fact sensitive. It follows that credit findings assume a greater significance. The Court is required to determine, on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), whether the Plaintiff has proved her case.

Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]:

In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].

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

For example, as will be read, a de facto relationship means a relationship which exists in fact, and that is established by determining what the parties to the alleged relationship have done, or not done, as the case may be. The evidence about the nature of their relationship mostly came from the Plaintiff. Other witnesses were only able to give evidence about her, or his, role in the life of the Plaintiff and/or the deceased, her, or his, observations of the relationship between them, and what the deceased said to him or her.

On the question whether I accept the evidence, I remember that in Thomas v The Times Book Co [1966] 2 All ER 241 at 244; [1966] 1 WLR 911 at 916, Plowman J stated:

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

There is also the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549; [1915] HCA 14 (Isaacs J). The deceased is not available, at the hearing, to directly confirm, or deny, the specific statements made by the witnesses.

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

In assessing the evidence and making findings of fact, I also bear in mind what Hansen J wrote in Richardson v Armistead [2000] VSC 551 at [36]:

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

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

I remember, also, that the process of litigation, itself, subjects the memories of witnesses to powerful biases: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [19] (Leggatt J).

In Lachaux v Lachaux [2017] 4 WLR 57; [2017] EWHC 385 (Fam) at [36], citing Onassis and Calegoropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, it was noted by Mostyn J that:

I also refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79 at 107; [1989] HCA 60:

Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 at [157] (Kenneth Martin J); Evans v Braddock [2015] NSWSC 249 at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply “emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed”: Kogan v Martin [2019] EWCA Civ 1645 at [88] (Floyd LJ).

Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467] (Kunc J).

What Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48 at [119]-[120], must also be remembered:

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

These observations were described by Leeming JA, in Nominal Defendant v Smith [2015] NSWCA 339 at [82], as uncontroversial and “supported not merely by one’s ordinary experience but also by a body of psychological evidence”.

I have also had regard, amongst other things, to whether the evidence given is inherently plausible or implausible; whether it is evidence that is specific as to time and otherwise consistent; whether, in a material way, it is, or is not, conformable to other evidence in the case including the available contemporaneous documents; and whether it is contradicted by other evidence which is undisputed or indisputable. I have endeavoured to consider the evidence, not only in its context, but in the context of the total evidentiary mosaic. Common sense and ordinary experience in life is also applied.

It is important to repeat that in cases where there is a dispute about whether a de facto relationship exists, that “it is conceivable that two people intimately connected to each other in one way or another, can see the same thing in entirely different ways”: Smyth & Pappas [2011] FamCA 434 at [14] (Cronin J).

Finally, I should refer to a part of what was written by Windeyer J in Quijarro v Robson [2008] NSWSC 818 at [36]:

There was no dispute that in 2015, the Plaintiff sought advice from a solicitor, Ms S Foote, of Collins & Thompson, in Hornsby, about her rights.

In circumstances that were not fully explained, a copy of the file of the solicitor who the Plaintiff saw in 2015, was not produced until the second day of the hearing and provided to the legal representatives of the parties.

The delay in obtaining the file, and the necessity for the legal representatives to consider its contents, required the cross-examination of the Plaintiff to be interrupted, and for her to be recalled, on the third day of the hearing, for further cross-examination, on the documents that had been produced.

During the cross-examination, a copy of part of the solicitor’s file was provided to the Plaintiff and was subsequently tendered in the Defendant’s case: Ex. D6. She was cross-examined on the contents of some of the documents.

I take what follows from her evidence and the solicitor’s file. I do not include a reference to all of the documents forming the exhibit, which I have otherwise carefully read and considered.

The first document, being a handwritten file note dated 29 September 2015 of the solicitor, discloses a conference between the Plaintiff and Ms Foote for 30 minutes. It includes the following information:

There is then a copy of the letter, which other evidence confirmed had been handed by the deceased to the Plaintiff shortly after she told him that she had sought advice from a solicitor. It is not necessary to repeat the whole of the letter verbatim, but the important parts of the letter are set out below:

(“Andrew” or “Sala” is not referred to by any of the witnesses in evidence, nor by counsel for either party. Although there was evidence that a “Sala Siaosi” did make deposits into the Plaintiff’s bank account in 2013, there was no evidence given as to his, or her, identity or the role he, or she, played in the lives of the deceased and the Plaintiff: Affidavit, Christine Winifred Pollock, 27 September 2021, Annexure A.)

There is then, in the file, a copy of a letter, dated 22 April 2015, from W L Browne & Associates Pty Ltd, addressed to the deceased and the Plaintiff, relating to the 2014 Financial and Income Tax return of Benfield Investments Staff Super Fund. Relevantly, it shows that each of them was a member of the Fund. The letter is said to have enclosed his, and her, individual Tax Return for 2014.

There is a handwritten file note, dated 4 November 2015, which identifies a telephone conference, between the Plaintiff and Ms Foote. It reveals the following:

It should be noted that there is no evidence, in the solicitor’s file, or otherwise of the date when the letter referred to in the file note, was actually sent to the deceased. Nor is there any evidence disclosing its contents. However, there is a draft letter, dated 22 October 2015, included in the bundle of documents that was tendered, which was in the following terms:

It was accepted by counsel for the Defendant that there was no original, or copy, of the final letter that was sent to the deceased in evidence.

There is then another handwritten file note, dated 19 November 2015, which refers to a telephone conference between the Plaintiff and Ms Foote, and which file note, relevantly, states:

(In cross-examination, the Plaintiff agreed that following receipt of the solicitors’ letter, the deceased had told her that he was prepared to spend half of what he owned to fight any claim that she made. She could not, otherwise, remember any further details of her conversation with the deceased following receipt of the solicitors’ letter: Tcpt, 9 June 2022, p 265(1-9); 266(17-23).)

Reference should also be made to a handwritten file note, dated 17 December 2015, which reveals another telephone conference between the Plaintiff and Ms Foote, the solicitor, which, relevantly, states:

There is no file note recording any conversation, held between the Plaintiff and the solicitor, in January 2016. Nor is there any other document that reveals any subsequent instructions given by the Plaintiff to Ms Foote at that time. However, there is no copy of any letter, sent to the deceased, in 2016.

Finally, there is a copy letter, dated 9 November 2017, addressed to the Plaintiff, from Ms Foote, which indicated that the solicitors had not heard from her, and that the file would be closed if the Plaintiff did not contact the firm within 14 days. (This letter corroborates the Plaintiff’s evidence that she took no further steps in relation to separation from the deceased after 2015.)

It will be necessary to return to the Plaintiff’s evidence of what followed her seeing the solicitor later in these reasons.

What is important about the letter from the deceased to the Plaintiff, in part quoted above, is that the Plaintiff accepted that the parts quoted above reflected the relationship as it was in about 2015 and continuing, generally, until 2017: Tcpt, 7 June 2022, p 91(45)-93(6).

What is equally important, is that, despite the deceased having been told that the Plaintiff had seen a solicitor, he did not state, unequivocally, that he regarded their relationship as at an end, but rather, he sought her view, about what she wanted to do. There is no evidence that, in response to the question posed, she stated that she regarded the relationship as at an end.

The deceased also stated in the letter that “you’re still my first choice of romantic partner”. This does not suggest that he wished to terminate their de facto relationship.

There was also no dispute that following receipt of the letter from the deceased, the Plaintiff did not terminate the solicitor’s instructions. In fact, her solicitor, upon instructions from the Plaintiff sent a letter to the deceased. As has already been discussed above, a copy of that letter is not in evidence. Yet, there was no evidence that, following the sending to, and receipt by, the deceased of the letter, either the Plaintiff, or the deceased, said to the other that the relationship was at an end. Indeed, they continued to live in the Glenorie property until the death of the deceased.

During the hearing, a number of other contemporaneous documents were tendered. It is necessary to refer to them.

There were tendered several copy medical documents. The Plaintiff tendered a copy of two Healthscope documents, one of which was titled “Healthscope Informed Financial Consent” and one which was titled “Discharge Summary” and was dated 25 October 2019 (Ex P4). The first document indicates that the deceased had the “Couple Gold Premium Hospital and Premium Extras” level of health cover. The second document, on page two, under the heading “Clinical Management” stated that “Mr Benfield lives with his partner”.

The Plaintiff also tendered a letter dated 5 February 2021 (Ex P5) from RT Health to the Plaintiff. Relevantly, the letter states “Thank you for your recent advice regarding the passing of your husband Geoffrey”.

(In respect of the Healthscope documents, the reference to the Plaintiff as the “partner” of the deceased may have some significance. However, in relation to the letter from RT Health, I would infer that describing the deceased as her husband was the way in which the Plaintiff described herself.)

On the third day of the hearing, there was tendered an agreed statement regarding Benfield Investments Staff Superannuation (Ex D2), which revealed that the Plaintiff had been listed as a second member of the Fund until the financial year ending in 30 June 2016. In the financial years ending in 30 June 2017 and 30 June 2018, the only listed member was the deceased. No information regarding the 2019 and 2020 financial years was included in the exhibit.

The Defendant tendered, without objection, a summary of the individual tax returns of the Plaintiff for the years ending 30 June 2019, 30 June 2020 and 30 June 2021 (Ex D3). The summary revealed that in each of those years, the Plaintiff did not disclose having a spouse or declare any spousal income.

Additionally, the Defendant tendered a summary of the information of the deceased’s taxation returns from 2015-2021 (Ex D4) as well as a copy of the deceased’s tax returns the financial years ending 2015 to 2021 (Ex D5). These documents reveal that in his income tax return for the financial year ending 30 June 2015, the deceased had disclosed a spouse, and spousal income, totalling $14,319. However, in each of the following financial years (2016 to 2021), the deceased did not disclose any spouse, or spousal income.

Before going to the evidence of the witnesses, it is important to try to gain an understanding of who the deceased as a person. Inevitably, in a case against a deceased’s estate, an important witness cannot give evidence. That person’s character, knowledge and intentions, have to be discerned from the evidence of others.

In this case, the nature, and character, of the deceased was revealed during the hearing by descriptions of him given by a number of the witnesses. The evidence was, broadly speaking, consistent.

The deceased was described as a generous and caring man, who was a good listener, particularly in relation to his family and friends: Tcpt, 8 June 2022, 109(35-42); Tcpt, 9 June 2022, 211(38-45); 240(33-34), 251(42-48). He was also described as “matter of fact”, yet “very direct”. He often spoke his mind, which sometimes came across as “stirring” or “antagonising”: Tcpt, 8 June 2022, 107(7-8), 109(23-24), 163(47-49); Tcpt, 9 June 2022, 243(39)-244(4), 251(42-48).

He was also described as a person with strong views, who stood up for his position, adopting on occasion a “my way or the highway” attitude: Tcpt, 8 June 2022, 164(1-9), 166(3-4); Tcpt, 9 June 2022, 211(28-33), 241(4-8). He often said “blokes don’t change”: Affidavit, Christine Pollock, 9 July 2021 at par 113, Tcpt, 7 June 2022, p 57(41-46), p 65(42-44).

Yet, the deceased’s sister Lyn, stated that his decision-making was not impulsive, but well thought through, often consulting others in important decisions: Tcpt, 9 June 2022, 212(7-20).

Some of the witnesses admitted that, at times, the deceased liked to be in control, and, as a result, was, sometimes, selfish and demanding, which could make him difficult to live with: Tcpt, 8 June 2022, 139(26-30), 142(1-12); Tcpt, 9 June 2022, 211(35-36), 251(42-48), 240(39)-241(8). He was also said to be one who took control of his own life, wanting to make sure that he was the master of his own fate: Tcpt, 9 June 2022, p 241(4-15).

From the various descriptions given of him, I am not persuaded that the deceased would not have taken steps, unambiguously and unconditionally, to act upon a determination to separate, and, thereby, end the de facto relationship, if that is what he wished to do. The descriptions of him make it difficult to comprehend him taking no concrete steps to end the relationship, by, for example, firmly telling the Plaintiff to vacate the Glenorie property, if, as is asserted by the Defendant, the de facto relationship that had existed, had come to an end.

I am also unconvinced that indications of the type relied upon to demonstrate the end of the relationship, such as him not being completely faithful to the Plaintiff, and him having a secret dalliance, or dalliances, at different times, conclusively revealed the end the de facto relationship. It is relevant to note that none of the dalliances were for consistently long periods of time, and, more importantly, to the exclusion of the Plaintiff. She never ceased to reside at the Glenorie property.

As will be read, even Ms Sutton, whom he had known for a long time, recognised the role that the Plaintiff played in the deceased’s life.

None of the dalliances, when taken with other objective considerations, are inconsistent with the deceased having a commitment to a shared life with the Plaintiff. None clearly demonstrated an intention, on the part of the deceased, to permanently end his relationship with her. The criterion of a commitment to a shared life should not be dismissed as unsatisfied because a person considers himself (or herself) free to have involvements of a sexual nature with another person or persons: Robson v Quijarro [2009] NSWCA 365 (Basten JA, Ipp and McColl JJA agreeing). Indeed, as will be read, some of the evidence demonstrates that the deceased did not feel that he could do as he wished.

Whilst all the circumstances must be considered, the most important witness, it seems to me, who could give evidence, in this case, about the existence of the relationship, is the Plaintiff. She gave evidence about the whole of the relationship, including what she and the deceased was each doing and saying. Overall, whilst I found the Plaintiff to be far from loquacious, answering most of the questions monosyllabically, I tend to the view that she was endeavouring to tell the truth. I found her to be an honest, sincere and reliable witness.

The cross-examination, which was necessary, and which covered a range of elements of the relationship, in parts, would have been extremely painful for her, as it involved the conduct of the deceased, about some of which conduct the Plaintiff said she knew nothing at the time it had occurred. She remained calm, and courteous, to senior counsel for the Defendant, and I believe that she did her best to answer the questions asked of her. Indeed, she made concessions when necessary and answered questions in a straightforward and clear way.

In my view, whilst the Plaintiff clearly has a personal interest in the outcome of these proceedings, her evidence more closely accords with the objective chronology of events.

I tend to the view, accepting her evidence, that between about 2013 and 2017, the relationship was difficult for the Plaintiff and for the deceased. I am satisfied that they navigated the difficult time, each in her, and his, own way, and, thereafter, the relationship improved, although it might not have been as it was, particularly in the period 2009 to 2012.

Yet, it is, perhaps, the objective elements, in, and after, 2017, about which she gave evidence, and which were not the subject of real challenge, that give the real colour and significance to the relationship in the years before the deceased’s death and enables the Court to determine the nature of their relationship at the time of his death.

The Plaintiff swore three affidavits, the first of which, sworn on 9 July 2021, comprised 220 paragraphs, spanning 33 pages; the second, which was sworn on 27 April 2022, comprised 23 paragraphs, spanning 6 pages; and the third, in reply, which was sworn on 27 September 2021 comprised 43 paragraphs, spanning 7 pages.

As has already been stated, it was not disputed that a romantic relationship started in about 2002, that the Plaintiff moved into the Glenorie property, with the deceased in 2009, and that they were in a de facto relationship, at least until 2012 or 2013.

In cross-examination, the Plaintiff admitted that when she moved into the Glenorie property, she had given each of her daughters $100,000 and had lodged a caveat over the property subsequently purchased by each, for the purpose of protecting each of them in the event a spouse made a family law property claim.

The Plaintiff gave evidence that during this period, she was responsible for cleaning the Glenorie property and for its general maintenance. She said that from 2009, the deceased paid for her private health insurance, car, fuel, and e-tag expenses, and provided a mobile phone and credit card for her benefit. From 2009 until 2016, he had his accountant prepare her income tax returns, and that he had included her as a beneficiary of his self-managed superannuation fund (the Benfield Investment Staff Super Fund): Affidavit, Christine Winifred Pollock, 9 July 2021 at pars 76, 80-84.

In October 2009, she asserted that the deceased had bought her a new BMW car, although this was disputed by Dean, who stated that the car was purchased as a corporate car for tax purposes: Affidavit, Christine Winifred Pollock, 9 July 2021 at par 85; Affidavit, Dean Benfield, 2 September 2021 at pars 23-25. In whatever capacity it was purchased, it was the vehicle that the Plaintiff drove.

From September 2014 until July 2015, the deceased permitted Bettina, who had separated from her former partner, to live at the Glenorie property: Affidavit, Christine Winifred Pollock, 9 July 2021 at pars 103-104, 108.

In about July or August 2015, the Plaintiff became aware that the deceased was taking another woman, only known to her by the name, Narelle, out for dinner. Indeed, he had said to her “Can I borrow your car? I am taking a lady to dinner. I do not want to take her in this car.” Also, at about this time, the Plaintiff discovered emails between the deceased and Narelle. Unsurprisingly, the Plaintiff stated her relationship with the deceased suffered and that they gave each other “the cold shoulder”, socialising with each other less than they had been in the past.

In cross-examination, the Plaintiff readily admitted that whilst they were in a relationship, she had trusted that he would have no other relationships and that when he referred to going out with another woman, that constituted a breach of her trust and that he had let her down: Tcpt, 7 June 2022, p 47(38)-48(45). All of this evidence should be accepted.

The Plaintiff admitted that their relationship had experienced difficulties from mid-2013 due to a number of factors including, the lack of support from the deceased, communication difficulties, anxiety related to her children’s circumstances, and her decision not to go on motorcycle rides with the deceased. However, she stated that even during this time, they “continued to live together and maintain our relationship”, and that the deceased would only spend nights away from home when he was on a motorcycle trip: Affidavit, Christine Winifred Pollock, 27 September 2021 at par 23; Affidavit, Christine Winifred Pollock, 9 July 2021 at pars 109-114.

As stated, in September 2015, the Plaintiff contacted Ms Foote to seek advice about separating from the deceased. She recalled that later in 2015, on her instructions, her solicitors sent the deceased a letter indicating her intention to separate and move out.

In cross-examination, the Plaintiff suggested that this letter may have sought $300,000 from the deceased as a sum by way of a property settlement. The Plaintiff agreed that she had given the figure of $300,000 to her solicitor. Initially, in response to a question from the Bench, the Plaintiff stated that the $347,000 that was placed in the superannuation fund was the source of the figure of $300,000 that she had discussed with her solicitor. However, on the third day of the hearing, when the Plaintiff was recalled for cross-examination, she claimed that the figure was not related to her knowledge of the superannuation fund but was the amount she believed she needed, when added to an inheritance that she had received, to purchase another property: Tcpt, 7 June 2022, p 51(48)-53(2), p 87(27-36); Tcpt, 9 June 2022, p 271(46)-272(8).

She denied that she had ever asked the deceased for $1,000,000. She agreed that the letter made clear the seriousness of what had happened and conveyed an intention to separate and to move out of the Glenorie property.

On the third day of the hearing, there was a further cross-examination of the Plaintiff, which was focussed on the documents produced in the solicitor’s family law file. The Plaintiff agreed that she told the solicitor, Ms Foote, that she had separated from the deceased in December 2013, because the solicitor had asked whether they were living in the same room.

The Plaintiff stated that she had all correspondence sent to the home in Kellyville, because she did not want the deceased to have any idea of what she was doing.

The Plaintiff acknowledged that she had resigned as a director of the deceased’s company, after her solicitor explained to her the legal implications of being a director, because she was concerned that she would be responsible for the debts of the company and lose the inheritance she had received from her mother, not because they were separating.

The Plaintiff admitted that she had been incorrect in some of the dates in her affidavit, and that having perused the documents from the family law file, it was likely that the letter was sent by her solicitor to the deceased in early December 2015, rather than in August or September as she had said in her earlier evidence. While the Plaintiff agreed that she was generally precise about dates, because she kept a diary, she could not locate her diary from this period.

The Plaintiff gave evidence that when the deceased received the letter from the solicitor, he was angry, due to her request for $300,000, that he then tore up the letter and that he said, “This is not going to happen”. She said that she understood this to mean that he was communicating that they would not separate, not that he would not pay her the money. Looking at the continuation of the Plaintiff’s occupation of the Glenorie property, and other evidence, I tend to the view that the deceased may have meant both things.

In cross-examination, the Plaintiff denied that if she had received the $300,000, she would have left the deceased.

Even though the Plaintiff had wanted to separate, she said that after the deceased read the letter from the solicitor “I didn't want to do it anymore, when I saw his face”. She had written, in her affidavit, that she “had regret and guilt and sadness”. She had also written that she told him that she was sorry and that she had “never truly wanted to separate”. She further described her feelings at the time (Tcpt, 7 June 2022, p 83(24-40), 85(1-10)):

It was not suggested to the Plaintiff that she had not felt that way, or that her description, did not reflect her true feelings. The evidence demonstrates the extent of her then feelings towards the deceased despite the events that had occurred. She also said that she forgave his conduct, which had been one of the causes of her seeing a solicitor: Tcpt, 7 June 2022, p 60(17-19). It seems that so far as she was concerned, she was in a committed relationship. Indeed, having seen, and heard the Plaintiff give evidence on this topic, I accept her evidence.

The Plaintiff gave evidence that between 2015 and 2017, whilst there was not the same level of intimacy and love, she and the deceased continued to eat meals together, they shared household chores, they socialised together, and lived together (except for when the deceased went on his motor motorcycle trips). Whilst she acknowledged that the relationship remained strained, they also continued to have day to day interaction and communication, and that they would chat, briefly, about each other’s day. She also said that they “still shared the bedroom [but that] he didn't sleep there”: Tcpt, 7 June 2022, p 64(10-14). (I accept, in this regard, that she was referring to them continuing to have a sexual relationship.)

Overall, the Plaintiff maintained in cross-examination that during this period she remained a person with whom the deceased person was living in a de facto relationship. She expressly denied that they were very much leading separate lives. I accept her evidence in this regard.

The Plaintiff also claimed that, from about 2017, she and the deceased had grown close again, and that the relationship was as good as it had ever been. Thereafter, she had no knowledge, or even suspicion, that the deceased was having a relationship with another woman.

She confirmed that in answer to the solicitor’s letter, sent to her in 2017, she had responded, informing the solicitor that she did not wish to proceed with the property settlement anymore, stating that their relationship had improved: Tcpt, 9 June 2022, p 267(42)-268(3). That there is nothing else in the solicitor’s file, relating to the matter, corroborates her evidence.

In March 2018, the deceased was involved in a serious motorcycle accident. The Plaintiff, in 2018 and in 2019, took the deceased to all of his medical appointments, visited him every day when he was in hospital, and was responsible for giving him care and support. She assisted with showering and providing him with food whilst he was in hospital and she maintained the Glenorie property. She said that what she did, she did out of “loyalty and love”: Tcpt 7 June 2022, p 74(08-11).

The Plaintiff stated that when the deceased was in hospital, he and the nurses would refer to her as “his partner”. She also stated that the hospital staff and doctors would sometimes call her “Mrs Benfield”, to which the deceased would respond by winking and smiling at the Plaintiff: Affidavit, Christine Winifred Pollock, 9 July 2021 at par 146. This evidence was not objected to and she was not cross-examined on it. Whilst I do not place undue weight on it, I tend to the view, bearing in mind the regular attendances at the hospital, and the evidence of what she did whilst there, that her evidence had the ring of truth and reflected the reputation and public aspects of the relationship at the time.

In 2018, the Plaintiff also bought the McGraths Hill property, and Bettina and Billy moved into that property. She denied that her motivation for purchasing this property was so that she could move out in the event of another confrontation with the deceased.

The Plaintiff stated that from 2008 until his death, she and the deceased were physically intimate. She explained that the reason her clothes were in the spare room was because there was insufficient room in the master bedroom to fit all of their clothes and that the deceased showered downstairs because that shower was more accessible. Again, in cross-examination, the Plaintiff maintained that she and the deceased shared a bedroom, but conceded that following his injuries in 2006, the deceased mostly slept in his chair downstairs: Tcpt, 7 June 2022, p 64(1-14).

The Plaintiff gave evidence that throughout 2018 and 2019 she and the deceased had attended a number of family events: Affidavit, Christine Winifred Pollock, 9 July 2021 at pars 124-125, 127-129, 140, 147-148.

It was put to the Plaintiff, that basically after 2017, the Plaintiff did domestic work, cleaning work, attending to the house, but that she was no longer the de facto wife of the deceased. She agreed that she did those things but denied that she was not in a de facto relationship with the deceased: Tcpt, 7 June 2022, p 66(28-31). She also gave evidence that the deceased continued to fully fund the relationship as he had done previously.

The Plaintiff denied being aware of all of the emails passing between the deceased and Ms Sutton after 2017. She said that she saw one but did not confront the deceased about it. Whatever he was doing with Ms Sutton, the Plaintiff said it was being done behind her back. She said even if he had a relationship with Ms Sutton, he continued his relationship with her and that “he had me. He looked after me well”: Tcpt, 7 June 2022, p 73(42-43), 74(13-14).

Bettina affirmed one affidavit in these proceedings, dated 27 September 2021, which comprised 30 paragraphs, spanning 5 pages. The deceased was her godfather: Affidavit, Bettina Pollock, 27 September 2021 at pars 3-5.

I accept that Bettina would wish to support the claim made by the Plaintiff. However, I formed a favourable impression of her veracity and did not have any sense, whilst she was giving her evidence that it was being tailored to support the Plaintiff’s case. I accept her as a witness of truth.

Following the separation with her partner, Ben, in September 2014, Bettina moved in with the deceased and the Plaintiff at the Glenorie property for a period of about nine months. During this time, she observed that they were having some difficulties in their relationship and that there was occasional tension between them, but that overall, she observed a “happy and loving relationship”. She also noted that the Plaintiff would do most of the domestic duties and cared for the injuries suffered by the deceased: Affidavit, Bettina Pollock, 27 September 2021 at pars 14-17.

Bettina gave evidence that the deceased cared for her son, Billy, like his own grandson: Affidavit, Bettina Pollock, 27 September 2021 at pars 28-29, Tcpt, 8 June 2022, p 107(30-41). This was not the subject of any challenge.

In cross-examination, Bettina elaborated that between 2015-2017, the deceased “wasn’t very happy because [the Plaintiff] stopped doing a few things that he liked her doing” and that there was “tensions and bickering”: Tcpt, 8 June 2022, p 106(41-48), 111(22-39). She said that there was “maybe some stirring” by the deceased.

She also stated that the Plaintiff had told her in 2015 that she had been to see a lawyer, who had then written a letter to the deceased seeking payment of an amount of money. She said she had actually seen the letter, but did not have a copy. However, she said that although the Plaintiff was seeking a payment from the deceased, the Plaintiff had not told her that the relationship with the deceased was over, although agreed that she had said words to the effect of "I'm done with him. I'm telling him to pay me out and I'm going": Tcpt, 8 June 2022, p 110(21)-111(9).

Bettina did not discuss the nature of the problems between the deceased and the Plaintiff with him.

Bettina gave evidence that even after she had moved out of the Glenorie property, she would see the deceased and the Plaintiff once or twice a week, either at the Glenorie property or elsewhere. They would “often go to dinner at the Glenorie Club”. It was not put to her that the Plaintiff did not go.

In 2018, whenever Bettina visited the deceased in hospital after his motorcycle accident, she observed that the Plaintiff was present at the hospital and that she and the deceased were affectionate towards each other. She recalled that the Plaintiff, rather than the nurses, would assist in showering the deceased.

In cross-examination, Bettina stated that in the last few years of the deceased’s life she did not notice any “frostiness or coolness” between the deceased and the Plaintiff and she did not recall the deceased complaining about the Plaintiff: Tcpt, 8 June 2022, p 109(10-21).

Bettina corroborated the Plaintiff’s evidence that the Plaintiff did not stay the night at the McGraths Hill property regularly at any time after its purchase.

With some insight, Bettina, in answer to a question concerning the nature of the relationship between the Plaintiff and the deceased, acknowledged that the relationship changed. She said at Tcpt, 8 June 2022, p 110(15-19):

I am satisfied that Bettina’s evidence is truthful and that it is broadly consistent with much of the other evidence given in the proceedings.

I accept that Sarah, also, would wish to support the claim made by the Plaintiff. However, I formed a favourable impression of her veracity and did not have any sense, whilst she was giving her evidence that it was being tailored to support the Plaintiff’s case. I accept her as a witness of truth.

Sarah affirmed one affidavit in these proceedings, dated 27 September 2021, which comprised 31 paragraphs, spanning 5 pages.

She would visit the deceased and the Plaintiff several times a month, and said she observed that the Plaintiff and the deceased had “a close and loving relationship” and that the deceased liked to spoil the Plaintiff. In cross-examination, she described their relationship in the first few years as:

She said that the deceased had cared for, and assisted, her, as if she was his own daughter (although she admitted that the deceased would sometimes give her a hard time). She annexed to her affidavit, screenshots of text messages that she had sent to the deceased in September 2020, which wished him a “Happy Father’s Day”.

However, Sarah acknowledged that the deceased and the Plaintiff had some difficulties in their relationship in 2014, which she believed was due to the Plaintiff’s decision not to go on rides with him on his motorcycle. In cross-examination, Sarah said that she first became aware of this issue in the relationship at the end of 2012, when the deceased made comments about the Plaintiff’s decision to not go riding with him.

She later claimed that she also believed that the difficulties between the Plaintiff and the deceased were caused by the amount of attention that the Plaintiff was devoting to Sarah’s health problems and also to Bettina and Billy. This had resulted in the Plaintiff having less time for the deceased. (This evidence was corroborated by the contents of the letter that the deceased had handed to the Plaintiff to which reference has been made.)

Sarah also recalled a conversation in late 2014, or early 2015, in which the Plaintiff had told her that she was upset because the deceased was going on a date with another woman.

In cross-examination, Sarah stated the Plaintiff had told her she had seen a lawyer and that a letter had been sent to the deceased but did not recall the details of the letter, other than recalling her understanding that there was some kind of settlement proposed in the letter: Tcpt, 8 June 2022, p 117(50)-118(14).

In the period between 2015 and 2017, Sarah observed that the deceased and the Plaintiff would still have dinners and watch TV together, and that they were still respectful towards one another, even though she observed some increased tension in their relationship: Tcpt, 8 June 2022, p 118(23)-119(21).

After the deceased’s motorcycle accident in 2018, Sarah would visit the deceased several times a month, and observed that the Plaintiff devoted her time to caring for him. In cross-examination, Sarah added that from 2017, she witnessed the deceased and the Plaintiff “rebuilding” their relationship:

I am satisfied that Sarah gave her evidence sincerely and truthfully. Her evidence is consistent with much of the other evidence given in the proceedings.

Mr Smith made one affidavit in these proceedings affirmed on 23 September 2021, which comprised 16 paragraphs, spanning 4 pages. He was a witness who had no interest in the result of the proceedings.

Mr Smith had known the Plaintiff and the deceased for approximately 20 years, and had first met them at the Glenorie Motorcycle Group. He gave evidence that he would see them, most often, at the Glenorie RSL Club, on a Thursday night, when they would attend the meetings of the Club: Tcpt, 8 June 2022, p 124(1-6).

He said that the Plaintiff and the deceased “always presented themselves as a couple” around the motorcycle group and at the RSL Club, and that they provided each other with emotional, and physical, care and support. He noted that they “were not prone to public displays of affection”.

In cross-examination, Mr Smith said that to him, the deceased and the Plaintiff were “partners”: Tcpt, 8 June 2022, p 124(4). He only observed a change in their relationship when the Plaintiff stopped accompanying the deceased on motorcycle rides. He added there were occasions, after 2017, in addition to motorcycle rides, when the deceased would socialise without the Plaintiff. However, he said that broadly he did not observe changes in the way that the deceased socialised with the Plaintiff. He maintained that the Plaintiff still attended most of the weekly bike club meetings with the deceased.

Mr Smith stated that, in 2018, he would visit the deceased, weekly, in hospital after the accident, recalling that the Plaintiff was always present when he visited. He also remembered that the deceased would get the Plaintiff to assist with showering him and would not let the nurses shower him.

Even though in cross-examination, he agreed that he would see the deceased only every couple of months, there was really no challenge to the Plaintiff’s evidence on this topic.

Mr Smith said that the deceased had never discussed his relationship with the Plaintiff with him.

There is no reason to not accept the evidence of Mr Smith. He was clearly giving evidence, most of which was really not the subject of any real contest, and which was truthful.

Judith Lloyd swore one affidavit, dated 27 September 2021, which comprised 12 paragraphs, spanning 3 pages. She was a witness who had no interest in the result of the proceedings.

She was a close friend of the Plaintiff, had known the Plaintiff and the deceased, for over 20 years, and had lived not far from the Glenorie property. She, too, was a member of the Glenorie RSL Touring Club, with them, for over 10 years.

Ms Lloyd observed that the Plaintiff and deceased “in a loving and caring relationship” and had a “mutual co-dependency”. She elaborated, in cross-examination, that they were a team and would prepare meals for each other when the other went to work. She stated she did not observe any changes or difficulties at any point in their relationship from 2013 until the deceased’s death: Tcpt, 8 June 2022, p 135(34-40), p 141(35-49).

However, she acknowledged, in cross-examination, that the Plaintiff had told her that she was thinking about consulting lawyers about family law problems and that she was “thinking of” leaving the deceased. She did not know whether the Plaintiff had actually gone to see lawyers or whether the lawyers had written to the deceased.

She also remembered the Plaintiff telling her, sometime in 2015 or 2016, after the conversation about lawyers, about her concerns with the deceased going out on a date or motorcycle ride with another woman. She recalled that they had two, or three, conversations of a similar nature and that the Plaintiff discussed two women in particular. She believed these conversations stopped after the deceased had his accident in 2018.

She stated that after each of his motorcycle accidents, the Plaintiff would provide significant medical attention, and care, to the deceased, even when he was in hospital. She recalled the deceased saying to her “I really appreciate Christine and what she does for me, I couldn’t do it without her”. She recalled that whenever the deceased went in for surgery, the Plaintiff would be there, that she gave him a kiss as he was taken to, and also when he came back from, surgery.

The week before the deceased died, Ms Lloyd recalled the deceased saying that the Plaintiff had looked after him “like a prince”: Tcpt, 8 June 2022, 136(48)-137(1), 137(15-17).

There is no reason to not accept the evidence of Ms Lloyd. It was clear that she was giving truthful, and sincere, evidence, most of which was really not the subject of any real contest.

Anne Marie Bronwen, gave evidence in one affidavit, made on 27 September 2021 which comprised 9 paragraphs, spanning 3 pages and she, too, was cross-examined. She was a witness who had no interest in the result of the proceedings.

Mr and Mrs Bronwen lived in the same street as did the deceased and the Plaintiff. They both agreed that the Plaintiff first moved into the Glenorie property in 2009. She wrote that since 2003, the Plaintiff and the deceased had been in a “close and affectionate relationship”.

In cross-examination, she affirmed that, even after 2018, she had observed them to be affectionate, and caring, to one another. She explained that this was displayed in the way they looked at each other, through how they spoke to each other, and with the use of compliments made by one to the other: Tcpt, 8 June 2022, p 132(25-30), p 132(41)-133(42).

Ms Bronwen gave evidence that the Plaintiff would visit the deceased in hospital every day, following his motorcycle accidents.

In cross-examination she admitted that the Plaintiff did not discuss the “bad patches” of her relationship with the deceased with her, and neither did the deceased: Tcpt, 8 June 2022, p 131(40)-132(19). She also said that the Plaintiff did not really spend time at Bettina’s house but would only do so “maybe for a night” to look after Billy, in which case she would feed the dog.

There is no reason to not accept the evidence of Mrs Bronwen. It was clear that she was giving truthful evidence, most of which was really not the subject of any real contest. Her evidence was corroborated by the evidence of her husband.

John Bronwen also affirmed an affidavit in these proceedings, on 27 September 2021 which comprised 11 paragraphs, spanning 3 pages. He was not cross-examined on his evidence. Presumably, this was in order to save time. Like his wife, he was a witness who had no interest in the result of the proceedings.

Mr Bronwen attested that he had observed the Plaintiff and the deceased attend a variety of events together including, ANZAC Day memorials, dinners at the Glenorie RSL Club, Glenorie Motorcycle Club events, shopping, and weekend bike trips. He stated that he observed “both of them to appear happy and content” and “to be loving and caring towards each other”: Affidavit, John Bronwen, 27 September 2021 at pars 7-8, 11.

Mr Bronwen remembered that the Plaintiff would spend almost every day at the hospital because she often asked him and his wife to feed the dog whilst she was away from the Glenorie property.

There is no reason to not accept the evidence of Mr Bronwen. Most of his evidence was really not the subject of any real contest.

Brian John Ellis, swore one affidavit, sworn 24 September 2021, which comprised 11 paragraphs, spanning 3 pages. He was a witness who had no interest in the result of the proceedings.

Mr Ellis met the deceased and the Plaintiff through the Glenorie RSL Touring Club in 2014. He said he would see them regularly at Club meetings, Club social functions, and for dinners at the Glenorie RSL Club. In cross-examination, Mr Ellis added that even though the Plaintiff did not ride with the deceased, on occasions, she would come by car, and stay with the deceased on their weekend bike trips. He said that she continued to attend the weekly club meetings and host Christmas parties for the Club, with the deceased: Tcpt, 8 June 2022, p 128(38-45).

(Bearing in mind the date of the first meeting, his evidence corroborates the Plaintiff’s evidence that she and the deceased continued to socialise together, even after 2014.)

Mr Ellis attested that, following the deceased’s accident in 2018, during eight of the twelve visits he had made to the deceased in hospital, the Plaintiff was also present.

Mr Ellis observed that the Plaintiff and the deceased were in “a happy, caring, and loving relationship” and that the deceased was very fond of the Plaintiff’s grandson.

In cross-examination, Mr Ellis said that neither the deceased nor the Plaintiff discussed their relationship with him.

I accept the evidence of Mr Ellis. His evidence accords with much of the other evidence and was corroborated by the evidence of his wife.

Elizabeth Morag Ellis swore one affidavit on 24 September 2021, which comprised 6 paragraphs, spanning 3 pages. She was not cross-examined on her evidence. Presumably, this was in order to save time.

Mrs Ellis met the deceased and the Plaintiff through the Glenorie RSL Touring Club in 2014. She recalled that for as long as she had known them, they had been living together and were a couple. She stated that they “spoke of a happy homelife together” and that the deceased was very fond of the Plaintiff’s grandson. She observed that the Plaintiff “devoted her time to caring and supporting” the deceased and “went above and beyond to make sure all his needs were being met”: Affidavit, Elizabeth Morag Ellis, 24 September 2021 at par 6.

Mrs Ellis gave evidence that during four of the six times she had visited the deceased in hospital, the Plaintiff was also present.

I accept the evidence of Mrs Ellis.

I next turn to the evidence of the Defendant’s witnesses.

Even though each of the Defendant’s witnesses may have been repeating what the deceased had said to him, or to her, I found that overall, the evidence, particularly each of the children of the deceased, seemed to exhibit a sense of grievance in the Plaintiff having brought this claim. In my view, this tended to colour the evidence given.

There are also aspects of his, and her, evidence that I do not accept, where it conflicts with the evidence of the Plaintiff and the witnesses called in her case.

I also tend to the view that some of the conversations with the deceased occurred during the period 2015 and 2017, when there were difficulties in the relationship of the deceased and the Plaintiff.

Dean swore three affidavits in these proceedings, the first on 2 September 2021, which comprised 68 paragraphs, spanning 8 pages; the second, on 5 November 2021, which comprised 21 paragraphs, spanning 3 pages; and the third, sworn on 23 May 2022, which comprised 18 paragraphs, spanning 4 pages.

Dean denied that the Plaintiff and the deceased were in a de facto relationship. He recalled several conversations between 2014 and the deceased’s death in 2020, in which the deceased had said “Christine and I aren’t together anymore”, “we haven’t been intimate since at least 2008”, and “we are done”. In cross-examination, Dean maintained that deceased made those statements and did not accept that the statements were inconsistent with the Plaintiff moving in with the deceased in 2009.

In re-examination, Dean said he believed the relationship had begun to change in early 2012, as he had observed raised voices, with the deceased becoming upset and yelling at the Plaintiff, and with objects sometimes being thrown. He believed that this continued for a period of two or three years. He recounted a specific argument at Christmas in 2014, in which the deceased and the Plaintiff argued about giving the dog a ham bone. (Both Lyn and Helen, also gave evidence of this argument, although they stated that it occurred at Christmas in 2013. They accepted that the Plaintiff had been feeling some stress and strain due to Bettina’s difficult pregnancy and the upcoming birth of Billy during this time.)

In answer to questions from the Bench, Dean said that he would characterise the relationship during that period as hostile, and not close or loving: Tcpt, 8 June 2022, p 191(1-16).

Dean then claimed that the relationship changed again after that period and that the deceased and the Plaintiff “[p]retty much stopped talking to each other and became quite distant”. However, he then claimed that the relationship shifted again some years later, in around 2017 or 2018:

In one conversation, Dean asked the deceased why the Plaintiff was still living with him if they were not together. The deceased replied: “She insists on staying here and I can’t get her to leave”: Affidavit, Dean Benfield, 2 September 2021 at par 6.

In cross-examination Dean agreed that, generally, the deceased would not have his plans prevented by others and that he would stand up for his position. Yet, he was not prepared to concede that it was unusual that the deceased could not “get rid” of the Plaintiff: Tcpt, 8 June 2022, p 185(43)-186(8).

Notably, Dean stated that he had one specific conversation with the deceased in November or December 2014 (a date which was more likely to have been in 2015 if it occurred), in the following terms:

In response to a question from the Bench, Dean said that he did not recall a figure of $300,000 being mentioned by the deceased, and maintained that it was $1,000,000.

Dean also stated that he thought the label of the Plaintiff as a “live in maid” was harsh, because he thought that the deceased had a “good relationship” with the Plaintiff and that she was “good friend” or “lifelong friend”: Tcpt, 8 June 2022, p 172(26-40), 173(14-35), 179(6-9). He disagreed with the proposition that the Plaintiff did more for the deceased than a good friend would do. Yet, he accepted that the Plaintiff and the deceased shared a house together, that they would cook for each other and that they went out socially together, including to the motorcycle club meetings. He also agreed that the deceased had included the Plaintiff on his health insurance, assisted her, at least for a time, with her taxes, and had paid for most of her expenses, whilst she attended to household duties and maintained the Glenorie property.

Despite these things, Dean was reluctant to characterise her involvement as “active”: Tcpt, 8 June 2022, p 185(23-24).

Dean claimed that since October 2006, the deceased had slept in a recliner downstairs and consequently, could not have shared a bed with the Plaintiff, who slept upstairs. Helen, his wife, also gave evidence to this effect.

In 2013, when Dean was living in the Glenorie property, he observed that the Plaintiff’s clothes and personal items were stored in a third bedroom, not in the master bedroom, and observed that the Plaintiff slept in the master bedroom, while the deceased slept downstairs.

In 2019, Dean said that he observed that the deceased would have his showers and his wardrobe in the downstairs part of the house.

Dean gave evidence that the generosity that the deceased showed the Plaintiff was not atypical of his behaviour towards other friends, as he was “very well known for his generosity and his preparedness to assist people financially, whether they were friends or family”. Trent also gave similar evidence in his affidavit. Neither of them identified any specific examples of the generosity said to have been given to friends, and none were called in the Defendant’s case.

In cross-examination, Dean agreed the Plaintiff did visit the deceased in hospital, both in 2018, and after the deceased’s earlier accidents, but stated he did not know the frequency of her visits. Trent and Wayne gave similar evidence on this topic, although Wayne denied that the Plaintiff was there frequently, or that he witnessed her provide “extensive care”: Tcpt, 9 June 2022, p 244(11-50).

Although Trent stated that he believed that his brothers also assisted the deceased, Dean agreed, in cross-examination, that the Plaintiff was the only one who assisted the deceased with his care after the accidents, because the deceased did not want his sons doing it. However, Dean understood the Plaintiff was doing this only as a friend of the deceased. He had no complaint of the care the Plaintiff provided to the deceased.

In answer to a question from the Bench, Dean stated that he did not arrange for alternate care for the deceased because:

In cross-examination Dean also agreed that across all periods of their relationship the Plaintiff would generally attend all family events which were held at Glenorie, but stated that she would rarely attend events that were held elsewhere.

Whilst it is probable that Dean was endeavouring to give evidence to the best of his recollection, I found that his evidence, in some respects was quite implausible. The description of the nature and character of the deceased, quoted earlier, which accorded broadly, with Dean’s description, suggests that had the deceased really wanted the Plaintiff to leave the Glenorie property, he would have been able to have her do so. That he did not, and that they continued to live there is telling.

The deceased’s description of the Plaintiff as a live-in maid, whilst it may have been said by the deceased, perhaps reflects the anger that he felt, at the time, rather than being an accurate representation of the whole of their relationship. Equally, to describe the conduct of the Plaintiff as being that of only a close, or lifelong, friend, and nothing more, and for the deceased’s three sons, to abdicate to her, and her alone, the responsibilities of attending to the deceased’s needs after his several accidents, particularly the accident in 2018, does not paint an accurate, or in my view, objective, picture of their relationship.

I prefer the evidence of the Plaintiff, and the other witnesses called in the Plaintiff’s case, to Dean’s evidence where that evidence conflicts. Whilst I am unable to conclude that he was giving false evidence, I had the firm view that he was attempting to downplay the nature of the relationship that existed between the deceased and the Plaintiff.

Trent swore three affidavits in these proceedings, the first was sworn on 3 September 2021, which comprised 60 paragraphs, spanning 7 pages; the second was sworn on 9 November 2021, which comprised 26 paragraphs, spanning 4 pages; and the third was sworn on 23 May 2022 comprised 22 paragraphs, spanning 3 pages.

Trent also denied that the Plaintiff was in a de facto relationship with the deceased, describing the Plaintiff as the deceased’s cleaner, carer and friend: Tcpt, 9 June 2022, p 233(2-5), 235(35-40). Perhaps, these are roles she performed, but that description, in my view, is not an accurate representation of the entirety of their relationship.

The nature of Trent’s evidence causes me to have some concern about the veracity of some of his evidence, although, in fairness to him, it may be based on what he was told rather than what he observed. Although I do not suggest that he was seeking to deliberately mislead the court through the giving of false evidence, I consider that his evidence was affected, significantly, being refracted through the prism of his own perception of the relationship, which was somewhat distant, rather than the true nature of the relationship.

In cross-examination, Trent indicated that he moved to Victoria in 2010, and that following his relocation, the deceased would visit him in Victoria approximately six times throughout the year, but otherwise their contact was mostly by telephone. He stated that whenever the deceased visited him, he would always come alone. He agreed that he did not come to Sydney as often: Tcpt, 9 June 2022, p 224(31)-225(28).

In 2013, Trent stated that the deceased told him that the Plaintiff was never at home, and only spent a few nights a week at the Glenorie property, and that she was spending most of her time with her daughter, Bettina and her baby. The fact asserted in the statement, too, is inconsistent with other evidence given in the case.

Trent deposed that he had several conversations with the deceased, during this period, where he suggested that their relationship was over. For example, he alleged the deceased said:

Another such conversation was in the following terms:

In cross-examination, Trent maintained that he had those conversations with the deceased.

Trent also recalled that, at about that time, the deceased had said that he had started seeing a new lady who worked on a dive boat. Wayne also recalled the deceased mentioning the “bird from the boat”. However, other than conversations with the deceased, neither of them had any direct knowledge of the nature of the relationship if there was one.

In cross-examination Trent stated that he thought that the Plaintiff knew about Melita (a woman with whom the deceased had, perhaps, had a relationship during his relationship with the Plaintiff), and this “other lady” because she had driven the deceased to the airport. It is difficult to accept the statement based only upon what he said, noting, also that his knowledge was due to what he said the deceased had told him.

I tend to the view that, more probably than not, the deceased had not told the Plaintiff about the lady on the dive boat. I accept the Plaintiff’s denial of knowledge about other women, other than Melita, if there were any, who the deceased was seeing after 2017.

Around Christmas in 2016, Trent stated that the deceased was looking at regional properties to move into, and that he wanted to know whether Trent would talk to Wayne about moving in with him because “I don’t trust [the Plaintiff]”. (It seems somewhat ironic that the deceased would mention “trust” in the circumstances of the case.)

Trent was also asked in cross-examination about the contents of a document that the Plaintiff had created, as a contemporaneous record of her conversation with him, following the deceased’s death. Trent agreed that he did have a telephone conversation with the Plaintiff on 1 November 2020 and that the conversation was in very similar terms to the contents of that document, although he disputed some minor aspects of the document.

It is necessary to repeat parts of the document, accepted as being an accurate record of the conversation held not long after the deceased’s death.

During cross-examination, Trent could not recall whether the Plaintiff had sounded shocked during this conversation but said “I was aware that she was either recording the conversation or someone else was listening, and it just to me felt like she was putting on a little performance”: Tcpt, 9 June 2022, p 233(10-14).

There was no basis for the suggestion that the Plaintiff was “putting on a little performance” and such an assertion had not been put to the Plaintiff. One might have thought that the conversation between the Plaintiff and Trent would have been the subject of cross-examination had this been a genuine concern. It was not. Furthermore, had he truly believed that the conversation was being recorded, or that someone else was listening, it is surprising that some of the statements reflected in the document, which are inconsistent with the Defendant’s case, and his evidence, would have been said.

Overall, I do not accept Trent’s evidence where it conflicts with that of the Plaintiff.

Wayne swore three affidavits in these proceedings, the first, 3 September 2021 comprised 34 paragraphs, spanning 5 pages, the second, sworn 5 November 2021 comprised 15 paragraphs, spanning 3 pages, and the third sworn 26 May 2022 comprised 22 paragraphs, spanning 4 pages.

Wayne denied that the Plaintiff was in a de facto relationship with the deceased, although in cross-examination, agreed that from 2009 to 2013, the deceased and the Plaintiff would eat meals and cook together and watch television together. However, from his perspective they “seemed quite distant” and it did not appear that there was a close relationship between them because “there was two separate (…) living arrangements going on in the household”: Tcpt, 9 June 2022, p 239(21-30).

This evidence is inconsistent with all of the other evidence in the proceedings, at least in the period from 2009 to 2012, and I do not accept his evidence.

Wayne stated that the deceased never discussed with him his feelings about the Plaintiff refusing to ride with him.

In the following period, from 2013 to 2016, Wayne claimed that when he would visit the deceased, the deceased and the Plaintiff would rarely be in the same room as each other. In cross-examination, Wayne elaborated that the way the deceased and the Plaintiff spoke to each other in this period remained consistent, and the only real change was that the Plaintiff was not at the Glenorie property as frequently because she was visiting her grandson, Billy.

Wayne agreed however, that the deceased was very fond of Billy and cared for the Plaintiff’s daughters: Tcpt, 9 July 2022, p 241(17-46).

Wayne recalled that he had several conversations with the Plaintiff between 2013 to 2018, where the Plaintiff told him the only reason she was still there was because of the dog and that she did not like the deceased.

Wayne stated that Trent informed him that the Plaintiff had given a letter to the deceased and “tried to get $1 million out of him”. Although he could not recall the exact time, Wayne remembers that he had a conversation with the deceased where he raised the letter given by the Plaintiff. The deceased replied: “Yeah don’t worry about that. It’s nothing I can’t handle”: Affidavit, Wayne Mark Benfield, 3 September 2021 at pars 17-18.

At a family BBQ in 2016, Wayne claims that the deceased said to him: “If it’s not one problem its [sic] another. I’ve got debtors for the business on one side, and Christine on the other.”

Wayne believed that from 2013, the Plaintiff ceased attending family birthdays and Christmases. He admitted that from 2018, after the deceased’s accident, the Plaintiff would accompany the deceased to family events, but that she would mostly speak to her daughter Bettina, and not the deceased and his family: Affidavit, Wayne Mark Benfield, 3 September 2021 at pars 15-16.

Wayne gave the following evidence:

Upon further questioning, he stated that he could not say whether the Plaintiff and her family were there in a service role, but that he did not consider her to be there as part of the family: Tcpt, 9 June 2022, p 243(1-18). That suggestion had not been made to the Plaintiff or to either of Bettina or Sarah. Bearing in mind the conduct of the Plaintiff, throughout the years, even between 2013 and 2017, the suggestion that she was no more than a service provider, should not be accepted.

I do not accept Wayne’s evidence where it conflicts with that of the Plaintiff and the witnesses called by her. I tend to the view that Wayne, like each of his siblings, gave evidence in a way that was sought to significantly downplay the role of the Plaintiff in the deceased’s life. The description of the Plaintiff as being at family functions “as part of an arrangement” is simply implausible.

Mimi Therese Stoffels (“Mimi”) swore one affidavit in these proceedings, sworn 3 September 2021 comprised 12 paragraphs, spanning 3 pages. She is the daughter-in-law of the deceased, and is Trent’s wife.

Mimi claimed that between 2002 and 2014, the Plaintiff would complain to her about the deceased saying words to the following effect: “Geoff is not the man I believed him to be, he is horrible. I’ve made a big mistake”. She maintained that these conversations occurred during cross-examination. At least in the period before 2013, this evidence is inconsistent with all of the other evidence in the case. The duration of the period, which includes the years 2002, when the deceased’s relationship with the Plaintiff was said to have commenced (in a romantic way), and 2009, when the deceased asked her to move into the Glenorie property, in addition to the evidence of the witnesses of the close and loving relationship during this period, leads me to doubt the veracity of Mimi’s evidence on this topic.

Sometime after Christmas Day in 2013, Mimi recalls that she and the family went on a boat trip with the deceased and the Plaintiff. During that trip Mimi stated that she and the Plaintiff had the following conversation:

In cross-examination, Mimi maintained that this conversation occurred and that it was a figure of $1,000,000 that the Plaintiff mentioned. However, I accept the Plaintiff’s denial of having met with Mr White.

(The failure by the Defendant to call Peter White, without explanation, leads me to infer that his evidence would not assist the Defendant’s case.)

Mimi gave evidence that from 2014 onwards, the Plaintiff would no longer accompany the deceased when he would travel down to visit her and her family: Affidavit, Mimi Stoffels, 3 September 2021 at par 5.

Mimi also recalls that sometime in 2017, when the deceased came to visit her home, he complained about the Plaintiff and her daughters living in his house, saying that “She won’t fucking leave!”: Affidavit, Mimi Stoffels, 3 September 2022, at par 9.

Mimi also gave evidence about a conversation she had with the deceased, in 2018, where he stated:

She stated that she asked whether the Plaintiff was still living with the deceased, to which he replied “Yes, she won’t leave unless I pay her out”: Affidavit, Mimi Stoffels, 3 September 2021 at pars 10-12.

When cross-examined about this conversation, Mimi stated that she was unsure whether the Plaintiff was still living with the deceased, and explained that, at the time, she understood that the Plaintiff was living at her own place, but that she would “come and go as she pleased” at the Glenorie property. She admitted that this understanding was solely derived through what the deceased told her: Tcpt, 9 June 2022, p 251(14-32).

In answer to a question from the Bench, inquiring whether the deceased explained to her why it was “difficult”, Mimi explained that the deceased felt “uncomfortable”. She stated that the deceased liked to have parties and bring people home, and that he associated with women generally but that “the idea of bringing women home after a night at the club, I would imagine it would’ve been a little bit difficult for him or uncomfortable for him”: Tcpt, 9 June 2022, p 251(50)-252(11).

However, subsequently, she moderated her evidence, agreeing that the deceased’s comment was in the context of bringing a woman with whom he may be having, or seeking to have, a sexual relationship, rather than bringing people home more generally: Tcpt, 9 June 2022, p 252(13-16).

One asks rhetorically, if the relationship had ended, why a person described by others as the deceased had been, as one with strong views, who stood up for his position, who adopted, on occasion, a “my way or the highway” attitude, who had disclosed to the Plaintiff his intention to take another woman out to dinner, would allow the Plaintiff to retain a key to the Glenorie property enabling her to come and go, day or night, as she pleased, or would not tell her to stay away, at particular times, if that is what he wanted her to do.

I do not accept Mimi’s evidence where it conflicts with that of the Plaintiff and her witnesses.

Helen Jean Benfield, the wife of Dean Benfield, swore one affidavit on 2 September 2021, which comprised 18 paragraphs, spanning 3 pages.

In cross-examination, Helen characterised the relationship between the deceased and the Plaintiff from 2009 and 2013, as “boyfriend and girlfriend” not as de facto partners. It is impossible to accept her evidence on this topic bearing in mind all of the other evidence and the admission made by the Defendant as to the de facto relationship at least until 2012. It is another example of an attempt, by a witness called in the Defendant’s case, to play down the relationship that existed between the Plaintiff and the deceased.

She agreed they attended “some” family events together, and that they were both at the Glenorie property during family events, but disputed that they jointly hosted those events, or that the Plaintiff would cook at these events: Tcpt, 9 June 2022, p 216(18)-217(29). This evidence, too, is difficult to reconcile with other evidence of witnesses called in the Defendant’s case.

Helen deposed that the Plaintiff rang her on the telephone and that during that call, the following conversation occurred:

In cross-examination, Helen stated that she remembered the conversation because it occurred on her son’s birthday. (The Plaintiff agreed that she had a conversation with Helen on the telephone that day, but she could not recall the content of that conversation: Tcpt, 9 June 2022, p 271(15-44).)

In cross-examination, Helen agreed that from 2017, when she saw the deceased and the Plaintiff every month, that they outwardly interacted with each other in the way that they always had done.

I do not accept Helen’s evidence where it conflicts with the evidence of the Plaintiff, or the other witnesses called in her case.

Beverley Dawn Benfield (“Beverley”), the former wife of the deceased and the mother of Dean, Trent and Wayne swore one affidavit in these proceedings, sworn 23 August 2021, which comprised 17 paragraphs, spanning 3 pages.

Following their separation, Beverley would still see the deceased at family birthdays and at Christmas. She recalled that “more often than not” the Plaintiff would be absent from these celebrations, which is inconsistent with some of the other evidence. She remained adamant on this point upon cross-examination.

In 2014, Beverley recalls having a conversation in which the Plaintiff said: “I really want to leave Geoff, but I have nowhere to go, can I come and stay with you?”: Affidavit, Beverley Dawn Benfield, 23 August 2021 at par 11.

When cross-examined on this conversation, Beverley could not explain why the Plaintiff had asked to stay with her, given she had other accommodation available. She maintained however, that the conversation did occur.

The Plaintiff could not recall this conversation: Tcpt, 9 June 2022, p 270(12-14).

Beverley remembers that on Christmas Day in 2016, she had a conversation with the deceased to the following effect:

She understood this conversation to indicate that the deceased no longer considered himself to be in a relationship with the Plaintiff: Affidavit, Beverley Dawn Benfield, 23 August 2021 at par 8.

Lyn Condon (“Lyn”) swore one affidavit in these proceedings, sworn 2 September 2021 comprised 33 paragraphs, spanning 5 pages. She is the sister of the deceased. She, too, has no interest in the result of the proceedings.

Lyn denied that the Plaintiff was in a de facto relationship with the deceased after 2012. She recalled that the deceased regularly told her that his close personal relationship with the Plaintiff ended after the Christmas/New Year period in 2012. She was also aware that the Plaintiff’s decision not to ride with the deceased was a source of tension between them.

In cross-examination, Lyn denied that the relationship between the Plaintiff and the deceased improved after 2016. However, somewhat inconsistently, she agreed that after 2016, the deceased and the Plaintiff continued to host, and attend, family events together, that they socialised together, and went out to dinner together. She maintained however, that it was less regular than it had been previously, and that from 2016, the deceased would generally visit her and her husband, Steve, without the Plaintiff.

In re-examination, Lyn elaborated that she thought there was a decline in their relationship, that they were less close, because she observed that they did not hold hands or have any “intimate relationship as far as body language”. She described the relationship as “strained” and that the deceased held a grudge against the Plaintiff: Tcpt, 9 June 2022, p 211(5-10), 212(32-33).

Lyn also recalled that in 2016, the deceased asked her and her husband to accompany her to inspect a property he was intending to purchase in the Central Coast region. The deceased told her that he was wanting to move without the Plaintiff because: “There is no relationship there anymore. She is only helping with the cleaning and I can’t see any other way to get her to move out”: Affidavit, Lyn Condon, 2 September 2021 at pars 4-6.

The Plaintiff had given evidence that the deceased had spoken to her about moving up to the North Coast, together. Again, bearing in mind the nature and character of the deceased, it is implausible to conclude that had he wanted to, he would not have been able to have the Plaintiff vacate the Glenorie property.

In 2020, after Lyn and her husband updated their wills, she remembers having a discussion with the deceased by telephone to the following effect:

Her questions about the deceased’s testamentary intentions, and suggesting that $100,000 may not be enough, suggest that Lyn must have harboured a belief, at that time, that the Plaintiff and the deceased had a relationship that was more than that described by the deceased.

While Lyn agreed that the Plaintiff had cared for the deceased after his accidents, particularly in 2018, she believed that after he had recovered “he’d be off on his own doing his own thing”: Tcpt, 9 June 2022, p 212(35-40).

She gave no evidence of attending upon the deceased to assist in looking after him after the serious motorcycle accident in 2018.

I do not consider her evidence about the relationship to be supported by other objective evidence that I have heard.

Melita Lucy Sutton (“Melita”) swore one affidavit in these proceedings, sworn 1 September 2021, which comprised 17 paragraphs, spanning 4 pages. She has no interest in the result of the proceedings.

Melita first met the deceased in 1996, at which time they commenced a relationship, which subsequently ended on 17 December 2000.

After their relationship had ended, the deceased kept in contact with Melita through telephone conversations, texts, emails, cards, and the occasional lunch: Affidavit, Melita Sutton, 1 September 2021 at par 6. In cross-examination Melita agreed that there was no romantic relationship her and the deceased between 2001 and 2014.

In 2015, the deceased visited her at her house in Umina Beach, at which time Melita claims they had the following conversation:

Following this conversation, Melita stated she was open to seeing the deceased again on an intimate basis. In cross-examination, Melita added that the deceased had told her that his relationship with the Plaintiff, had ended in 2013: Tcpt, 8 June 2022, p 154(25-27).

Melita recalled that on a number of occasions she had conversations with the deceased to the following effect:

In cross-examination, Melita stated that she did believe the deceased that his relationship with the Plaintiff had ended, but explained that they had multiple conversations on this topic, because the deceased wanted her to stay at Glenorie with him, but she refused because the Plaintiff, as a previous partner of the deceased, was still living there “as a housekeeper”, and the deceased could not understand why she was upset about that.

She stated that in these conversations, the deceased was emphatic, to the point of using “bad language”, that he was no longer in a full-time relationship with the Plaintiff: Tcpt, 8 June 2022, p 155(11-37).

Melita said that on average she would meet with the deceased several times a year and kept in communication with each other until the deceased’s death.

In cross-examination, Melita could not recall whether she was intimate with the deceased in 2020. She was confident however, that she never saw him, in an intimate way, after he had his prosthetic leg. This event had occurred in November 2019. It follows that she did not.

Whilst the deceased may have made the statements that are attributed to him, his description of the Plaintiff as a servant was most disrespectful, and did not, in my view, reflect the true relationship, even in the years 2013 to 2017.

As stated earlier, even if a sexual relationship with the deceased had occurred, I am satisfied that it co-existed with the period during which the deceased was in a de facto relationship with the deceased. It does not necessarily follow that the deceased did not have a degree of commitment to a shared life with the Plaintiff.

The Plaintiff is currently employed as a contract cleaner on an ad hoc basis. On average, she works between 15-20 hours each week, but this has been highly variable due to COVID continuing to affect her clients.

The Plaintiff denied that she received any cash in hand, although Bettina gave evidence that when her mother helped her with a cleaning job, on occasion she would give her some cash, although stated that other times the client would directly pay Plaintiff: Tcpt, 7 June 2022, p 46(15-30); Tcpt, 8 June 2022, p 105(2-25).

The Plaintiff’s gross monthly income is $4,465, consisting of $2,000 rental income from the McGrath’s Hill property and $2,465 income from her work providing cleaning services: Affidavit, Christine Winifred Pollock, 27 April 2022 at pars 8-9. The Plaintiff’s monthly expenditure, which was not the subject of cross-examination, totals almost $4,000.

The Plaintiff has been drawing upon her savings to meet her living expenses that are not able to be met from her income.

The Plaintiff’s assets and liabilities include the McGraths Hill property, a car, and savings of under $6,000.

Her liabilities include a debt secured by mortgage on the McGraths Hill property ($262,467) and a debt due to her daughters ($26,000) which represents money she borrowed for the purpose of buying her car.

During cross-examination, the Plaintiff accepted that $763,000 represented the purchase price for the McGraths Hill property in 2018, and that the value of the property has likely risen since 2018: Tcpt, 7 June 2022, p 43(44-50).

The Plaintiff believed that she may have entitlements under the ‘Benfield Investment Staff Superannuation Fund’ and the ‘Benfield Family Trust’, however she is unsure as to the amount of any entitlement. She stated in her affidavit, and maintained in cross-examination, that although the statements from the Superannuation Fund and the Family Trust state that she received several distributions from each, during the period of 2011-2016, she did not actually receive any of these payments.

She maintained that the deceased “was always in control of our finances”: Affidavit, Christine Winifred Pollock, 27 April 2022 at pars 13-20.

The Plaintiff seeks a lump sum provision to enable her to pay off her debts and provide a fund for exigencies of life, which will take into account future medical expenses in relation to her conditions of stress, anxiety, sleep deprivation, asthma and ongoing pain and discomfort from motorcycle accidents. She stated that, at the age of 69 (now almost 71), as she only works part time, is unlikely to obtain further gainful employment, has no superannuation, and a tiny amount of savings, the obligation of the deceased was to make such provision for her.

During the hearing, the Plaintiff tendered a copy of screenshots of different properties in the Kellyville/Baulkham Hills area, which Counsel for the Plaintiff submitted would be suitable accommodation for the Plaintiff (Ex P2). The Plaintiff agreed, immediately, when asked, that she had not inspected any of the homes depicted in the photographs and that she had been referred to one by an agent, which she then downloaded and the others that she had downloaded from the internet.

She also accepted, in cross-examination, that she did not need a property with four bedrooms, or even one with three bedrooms and three car spaces, and that the Glenorie property was too big for her current needs, and that, in the future, it would be too much to maintain.

In relation to the McGraths Hill property, in which Bettina and Billy live, the Plaintiff admitted that she visited them there, but had only stayed there occasionally whilst the deceased was alive and even since his death. She also agreed that it was smaller than the Glenorie property, it was much easier to maintain and that she would have no trouble living there and could move there permanently if she had to: Tcpt, 7 June 2022, p 45(24-29), 43(21-26), 49(49)-50(15), 89(5-21).

Counsel for the Plaintiff submitted that the Plaintiff ought to be provided with sufficient provision to enable her to purchase alternate accommodation. In light of the Plaintiff’s evidence, I do not accept this submission. The Plaintiff can live in the McGraths Hill property if she wishes to with, or without Bettina and Billy, or can sell it and purchase alternative accommodation.

Dean and his wife Helen, operate their own landscaping business in partnership. Helen also sometimes works for Coles.

Dean’s total income for the financial year ending 2021 was $2,101, and Helen’s total income was $24,357. Dean gave evidence that their business has been and continues to be affected by the COVID pandemic: Affidavit, Dean Benfield, 23 May 2022 at pars 6-9.

In his updating affidavit, Dean stated that the family’s monthly expenditure totals $5,175. He did not explain how the difference between the family income and the expenditure was met, even though their disclosed liabilities, for credit card loans, total only $9,471. It is difficult to accept the evidence when there is an unexplained disparity of expenditure over income.

The nature and value of the property of Dean and Helen, are as follows:

In cross-examination Dean conceded that in the period between his first and his updating affidavit, it was possible that the value of the Wyongah property had increased.

Dean may also have an interest in the “Benfield Family Trust”. The Trust Deed has been unable to be located.

Dean gave evidence of his competing financial need. He indicated that he would like to send his two children to the nearby Grammar school for high school. He also requires a sum to pay for his son’s occupational therapy, and to cover the costs of hearing aids for his wife. Dean indicated that both he and his wife will need their cars replaced: Affidavit, Dean Benfield, 5 November 2021 at pars 13-21.

In his most recent affidavit, Dean indicated that his house had been partly renovated and that the total estimated costs of completing these renovations would amount to $177,000: Affidavit, Dean Benfield, 23 May 2022 pars 16-17.

There is little doubt, bearing in mind the estimated value of the deceased’s estate, that even after provision is made for the Plaintiff, there will be sufficient left, to satisfy Dean’s competing needs.

Trent conducts his own plumbing business, but says that he has not had any regular work for the last 25 months. Trent’s total income for the financial year ending in 2021 was $24,503. His gross fortnightly income consists of government support payments which total $720. Mimi is a full-time carer for their daughter April.

In his updating affidavit, Trent stated that the family’s monthly expenditure totals $9,224. He did not explain how the difference between the family income and the expenditure was met, although their disclosed liabilities, for various loans, total $41,283.

The nature and value of the property of Trent and Mimi, are as follows:

Trent may also have an interest in the “Benfield Family Trust”.

Trent gave evidence of his competing financial circumstances. He indicated that he would require a sum to pay for the ongoing care and therapy for his daughter, April, who has Down Syndrome and low muscle tone. He indicated that he would like to send his other two children to the nearby Grammar school when in high school.

Trent indicated that there were renovations and maintenance required to his property, which total $150,000. Additionally, he would like to install a swimming pool, to improve the low muscle tone of his children. Trent indicated that him and his wife would like to purchase new cars, and also a ski boat for the family.

There is little doubt, bearing in mind the estimated value of the deceased’s estate, that even after provision is made for the Plaintiff, there will be sufficient left, to satisfy Trent’s competing needs.

Wayne’s total income for the financial year ending in 2021 was $24,053, and his wife, Katherene’s total income was $136,015. He is a carpenter by trade. He has recently started a new business venture “3B Innovations Pty Ltd” to design and manufacture aluminium windows. However, that business has no assets.

In his updating affidavit, Wayne stated that the family’s monthly expenditure totals $9,058.

The nature and value of the property of Wayne and Katherene, are as follows:

Somewhat surprisingly, there is no reference to any cash in bank or cash savings.

Wayne may also have an interest in the “Benfield Family Trust”.

Wayne gave evidence of his competing financial need. He indicated that he would require a sum to pay for surgery for his wife and one of his dogs. He indicated that he would like sufficient monies to provide a contingency fund to cover expenses for periods when he is unable to work, due to a previous workplace injury. Finally, Wayne indicated that his diesel car has several issues which will require repairs, the estimated cost of which is $4,000.

There is little doubt, bearing in mind the estimated value of the deceased’s estate, that even after provision is made for the Plaintiff, there will be sufficient left, to satisfy Wayne’s competing needs.

In his written submissions, counsel for the Plaintiff submitted that the Plaintiff is an eligible person pursuant to s 57(1)(b) of the Act as she was in a de facto relationship with the deceased from 2009 until his death. He submitted that the relationship between the Plaintiff and the deceased fulfilled the definition in s 21C of the Interpretation Act 1987, exhibiting many of the factors listed in s 21C(3).

He made reference to the comments of Windeyer J in Hooper v Winton [2002] NSWSC 1071 at [36], and to what I had written in Sadiq v New South Wales Trustee and Guardian [2015] NSWSC 716, to support his submissions that despite the imperfections in their relationship, including that the deceased had a relationship with other women, and the difficulties in their relationship, acknowledged by the Plaintiff, between about 2013 and 2017, during which there was a letter sent threatening family law proceedings, the de facto relationship had continued.

Moreover, he submitted that these issues were outweighed by other evidence that suggested the relationship had continued, including, that the Plaintiff continued to care for the deceased during his considerable medical treatments; that they continued to live together; that the deceased had continued to financially support the Plaintiff; that she had continued to support him, and that they had continued to socialise with family and friends.

In his closing submissions, counsel made reference to the letter written by the deceased to the Plaintiff, following her disclosure to him that she had seen a solicitor, in which he wrote, “[y]ou are still my first choice of romantic partner”. He submitted that even at “the worst time in their relationship” the deceased still considered that he was in a de facto relationship with the Plaintiff.

Counsel referred to the evidence of the Plaintiff given in cross-examination, that after she saw the reaction of the deceased to the letter from the solicitors, she regretted her decision and no longer wished to separate from the deceased.

Counsel submitted that given her age, and previous training, it was unlikely that the Plaintiff would continue in employment for very long, and would be unlikely to find other work. Moreover, he highlighted that the Plaintiff does not have any superannuation or similar fund to assist her with future medical and other expenses associate with old age.

I have already referred to his submission about the McGraths Hill property which I do not accept.

Finally, counsel made reference to the value of the estate, submitting that it was more than adequate to accommodate proper provision for the Plaintiff, and leave sufficient assets for each of the deceased’s children.

In oral submissions, counsel for the Plaintiff submitted that $1,250,000-$1,300,000 would be within the range of provision that ought to be made for the Plaintiff if she was found to be in a de facto relationship with the deceased, and that $1,000,000-$1,025,000 would be appropriate provision for the Plaintiff if she was found to not have been in a de facto relationship at the time of the deceased’s death.

Counsel for the Defendant disputed that the Plaintiff was the de facto spouse of the deceased at the date of death but conceded that the Plaintiff was an eligible person as a person who was at any particular time wholly or partly dependent on the deceased and a member of the household (s 57(1)(e)), and that there were factors warranting pursuant to s 59(1)(b).

They submitted that whilst the Defendant accepted that the deceased and the Plaintiff had been in a de facto relationship, by 2012, the deceased was acting in a manner inconsistent with “a man committed to a de facto relationship and living with the Plaintiff as if they were a couple”.

Reference was made to the following factors: that the deceased vacated the shared bedroom, that he undertook his hobbies separately to the Plaintiff; that he openly discussed his relationships with other women, and communicated to others that the Plaintiff was his cleaner. They also emphasised the following factors, to demonstrate that the relationship had terminated, namely, that the Plaintiff, in her 2019-2021 tax returns, did not disclose any spouse; that the Defendant did not disclose any spouse on his tax returns from 2016; that the Plaintiff utilised, from at least 2019, a different accounting firm from the deceased to prepare her tax returns; and that the Plaintiff had instructed solicitors to send a letter which conveyed the possibility of family law proceedings, and seeking $300,000 as a property settlement.

Counsel referred to Fairbairn v Radecki [2022] HCA 18, in support of their proposition, that the living arrangements, in this case the Plaintiff continuing to occupy the Glenorie property with the deceased, should not be determinative of their de facto status. In their oral submissions, senior counsel submitted that the abovementioned acts, were sufficient evidence to conclude that the deceased had terminated the relationship: Tcpt, 15 June 2022, p 306(8)-308(9).

In their written closing submissions, senior counsel for the Defendant alluded to several matters which they submitted adversely impacted on the Plaintiff’s credit. These included, that the Plaintiff did not arrange for the solicitor’s file to be produced at an earlier stage, that she did not provide an updated value of the McGraths Hill property, in addition to several inconsistencies in her evidence given in cross-examination.

Counsel for the Defendant submitted that considering the financial information provided by the Plaintiff, it appeared that, with some provision, she could comfortably live in the McGraths Hill property, or otherwise purchase an alternative property in the Glenorie area.

Counsel submitted that in the event that the Court was satisfied that the Plaintiff was a person with whom the deceased was living in a de facto relationship at the time of his death, adequate and proper provision would be provide a lump sum that would enable her to discharge the mortgage on the McGraths Hill property and provide a fund for exigencies in life. In their written closing submissions, counsel submitted the amount to discharge the mortgage comprising of $275,000, and $325,000 as a fund for exigencies of life, making a total of $600,000, would be sufficient provision for the Plaintiff.

In the event the Plaintiff was a person wholly or partly dependent on the deceased and a member of the household of which the deceased was a member, a lump sum of $475,000 would be adequate and proper, calculated upon the basis that she should be able to discharge the mortgage ($275,000) and provide $200,000 as a fund for exigencies of life.

Both parties agreed that the Plaintiff has benefited from continuing occupation of the deceased’s home since the death of the deceased, and that this occupation should be terminated three months following the delivery of the judgment in this matter.

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case, about which there was really no dispute.

This type of legislation has been described as having been “enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded”: Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [2] (Gleeson CJ).

The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). In New South Wales, it is a multi-category-based eligibility system. There are six categories of persons by, or on whose behalf, an application may be made.

As mentioned above, the Plaintiff submits that she is an eligible person pursuant to s 57(1)(b) of the Act as she was a person with whom the deceased person was living in a de facto relationship at the time of the deceased's death.

The task for the Court, in determining whether the Plaintiff was an eligible person under s 57(1)(b) involves a careful and sensitive, consideration of all the evidence of the human relationship that existed between the parties.

I discussed the relevant principles in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716. The orders made were the subject of an appeal (which was dismissed). The Court of Appeal did not identify any part of what had been written on the principles as being in error: Sadiq v NSW Trustee and Guardian [2016] NSWCA 62. (An application for special leave to the High Court was dismissed upon the basis that any appeal would not enjoy sufficient prospects of success to warrant a grant of special leave: Sadiq v NSW Trustee and Guardian [2016] HCASL 180.)

There is no definition of “de facto relationship” in the Act. However, the expression “de facto relationship” is now common parlance in Australia. As Lindsay J wrote in Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 at [35]:

Nor is there a precise test, identified in the Act, for determining whether such a relationship exists. However, the “Note” to s 57(1) provides that "De facto relationship" is defined in s 21C of the Interpretation Act 1987 (NSW).

Section 21C of the Interpretation Act, provides:

Importantly, the definition does not require an exclusive relationship.

The legislation has been recast, so that it no longer uses any reference to “husband and wife”, which terminology could lead to an inappropriate search for analogies to the legal relationship of marriage.

The ways the persons may live together as a couple is not prescribed by the section, or by the Act. The language of the section is sufficiently broad to accommodate the many ways a de facto relationship may exist. That conclusion is supported by s 21C(3) of the Interpretation Act, which provides:

The existence of such a relationship is determined taking into account "all the circumstances" of the relationship, which include any, or all, of the circumstances listed in the section. The court is entitled to attach such weight to any circumstance, as may seem appropriate. In one case, some of the factors listed may be relevant and some may be irrelevant; inevitably some may have greater prominence than others.

There are nine circumstances referred to, which may be grouped into “private” ((c), (d), (e) and (f)), and “public” ((a), (b), (g), (h) and (i)), headings. They are no more than reminders, or indicators, of matters that are to be taken into account in deciding the question whether the parties lived in a de facto relationship: Piras v Egan [2008] NSWCA 59 at [146] (Campbell JA).

None of the matters listed are of decisive significance. The criteria are inclusive but not exhaustive. They all, however, suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other’s emotional lives, a conclusion that people are a couple living together involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 at [14] (Bryson AJ).

The last paragraph of the section makes clear that the criteria are not to be weighed against each other and given individual weightings of importance. Ultimately, they may be used to assist in determining whether the parties were in “a relationship as a couple”. However, they should not overshadow that central concept.

The criteria listed in s 21C(3) of the Interpretation Act do not state what has been described as the “essence” of a de facto relationship, which is to be found in the phrase “as a couple”. The word “couple” is not defined in the Act.

The 6th Edition of the Shorter Oxford Dictionary (2007) defines “couple” as a union of two. The word “couple” comes from the Latin word “copula” which is a bond, tie, or other connecting item.

One might argue that the inclusion of the term “living together” would require physical cohabitation. However, the sub-section makes it clear that a common residence is not the only circumstance of the relationship that the Court must consider, and is not, necessarily, an essential element to be proved. To recognise that feature, acknowledges that, sometimes, a couple may choose to conduct a shared life without sharing “a common residence on a full-time basis”: Vaughan v Hoskovich [2010] NSWSC 706 at [51] (White J).

The High Court in Fairbairn v Radecki, discussed the concept of a de facto relationship including the term “living together” (albeit in s 4AA(1) of the Family Law Act 1976 (Cth)). At [33], reference was made to SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1; [2015] FCAFC 69 and to Crabtree v Crabtree (1963) 5 FLR 307, in each of which cases it was noted that “cohabitation of a residence or residences is not a necessary feature of ‘living together’. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world”.

As was stated by the Court of Appeal in Smoje v Forrester [2017] NSWCA 308 at [42], the state of “living together”:

The test whether the notion or concept of living together as a couple is satisfied is an objective one. It involves assessing the nature and extent of the claimed common residence as well as other aspects of the relationship. What is important is the nature of the union (as a couple) rather than how it manifests itself in quantities of joint time: Jonah & White (2011) 258 FLR 236; (2011) 45 Fam LR 460 at [66] (Murphy J).

This is not to say that two persons cannot live separately and apart even when they both reside in the one home. In Fairbairn v Radecki at [36], quoting Crabtree v Crabtree at 309 (Sugerman and Dovey JJ), it was pointed out that this “might take place where ‘there is such a forsaking and abandonment by one spouse of the other that the court can say that the spouses were living lives separate and apart from one another’.”

Thus, the concept of “living together” must also be read in the context of the concept of “as a couple”. It seems to me, then, that the notion includes the following elements that require evaluation:

Whilst each element suggested above does not import any concept of proportion of time, each should exist over a long enough period, to amount to “living together”.

If two people do not “live together as a couple”, they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various criteria listed. As Barrett J wrote in Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8 at [11], when considering the phrase living “as a couple”:

Ultimately, the court must consider the nature of their union and whether there was a merger of two individual lives into life as a couple. The search is for such a relationship, as it existed at the date of death, and which had manifested such characteristics for at least two years prior thereto.

Once the physical, or factual, aspects, of the relationship have been examined, whether a mental ingredient also existed may be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future.

Common sense dictates that a relationship may change, or develop, over time. Thus, its legal character at one point may not represent its character at another. Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.

The significance of qualifications of these kinds appears from passages in the leading judgment of Basten JA in Robson v Quijarro and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65 at [120]-[124].

Other cases make it clear that the term “de facto relationship” constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685 (Kearney J); Light v Anderson [1992] NSWCA 136 at 4 (Handley JA, Kirby P and Priestley JA agreeing); Bar-Mordecai v Hillston, at [86], [125]; Hayes v Marquis [2008] NSWCA 10 at [73]-[74] (McColl JA, Beazley JA and Einstein J agreeing). It is the composite picture that must be looked at and individual factors should not be isolated and attributed relative degrees of importance.

It follows that the determination of the existence of a de facto relationship is essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration. A value judgment is required to be formed. Accordingly, the Court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed, with care and sensitivity, cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship, then the statutory test is met: Scragg v Scott (2006) 25 FRNZ 942; [2006] NZFLR 1076 at [64].

Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact. In Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted, with approval, the following passage from the judgment of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128 at 131:

Although the cases referred to in the last paragraph were decided many years ago (as evidenced by the reference to “the opposite sex” in the passage quoted), the general principle stated applies equally now as it did then.

In reaching the conclusion about the existence of the relationship, the Court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping. Thus, although said in another context, I agree with Bender FM in Dakin v Sansbury [2010] FMCAfam 628 at [13], that:

The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243, at paragraphs [64]-[65] of the judgment:

However, as was pointed out by Allsop CJ, in Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 at 304-305; [2016] FCAFC 5 at [3]:

Thackray J (Kent and Watts JJ agreeing) wrote in Na v Tiu (No 2) [2017] FamCAFC 269 at [43]-[44]:

Bell P confirmed in Estate of the Late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324 that a de facto relationship is not required to be perfect, writing at [43]:

It can be seen, from what has been set out above, that the concept of a de facto relationship is complex and diverse. Yet, it is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship. Importantly, also, unlike a marriage which continues to exist until the dissolution by the Court, there is no presumption, or inference, of continuance of a de facto relationship.

A de facto relationship, unlike a marriage, can commence and end without any legal pre-requisite or formality. Furthermore, unlike a marriage, which commences, and ends on a defined day, when a de facto relationship commences, and whether, or when, it ends, can be the subject of some dispute and uncertainty. Often, it is impossible to conclude that the relationship began or ended on a specific day. (In stating the last matter, of course, I omit the circumstance of the death of one of the parties.)

The dispute and uncertainty exist because a de facto relationship tends to develop over time. Similarly, it tends to break down over time as well. Nevertheless, in this case, the Court must determine when the de facto relationship commenced and whether it had ended at the time of the deceased’s death. The end of the relationship is often not clear or finite.

In this case, it is the Plaintiff who must establish, on the balance of probabilities, that a de facto relationship existed and that it continued until the time of death of the deceased.

In Howland v Ellis [2001] NSWCA 456 at [20], Stein JA wrote (Meagher JA and Ipp AJA agreeing):

Dutney J, in S v B (No 2) [2005] 1 Qd R 537; (2004) 32 Fam LR 429; [2004] QCA 449 at [33], wrote:

(I take the reference to the “robustness of marriage” to mean no more than acceptance of the fact that a marriage persists until a court grants a divorce order, whereas a de facto relationship comes to an end as a result of the conduct of the parties or one of them.)

At [48], his Honour added:

It is important to note that Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740; [1989] NSWCA 100 added a reference to, “in that sense keeps apart”.

There can be little doubt that a de facto relationship, like a marriage, may include periods of separation. But the de facto relationship ends only when one, or both, of the parties form the intention to sever, or not to resume, the relationship and he, she, or they act on that intention. There can be uncertainty about the future, but the de facto relationship persists even though they do not do all of the things together that they had previously done. Keeping apart must have a finality about it and that is best evidenced where the de facto relationship has none of its previous characteristics. The ending of the relationship must have a permanence about it rather than a temporary suspension: Smyth & Pappas at [11] (Cronin J). Indeed, a de facto relationship may continue notwithstanding that the parties may have separated temporarily while they attempt to work through some difficulties encountered in their relationship. An interruption which, in a reasonably long relationship, may be no more than a hiccup, does not, necessarily, bring the relationship to an end. Whether it has ended is a conclusion reached having regard to all the circumstances.

Yet, a conclusion that the relationship has ended is not precluded by the presence of an ongoing relationship, or even cohabitation, of some sort. However, as was written in Sun v Chapman (No 2) [2021] NSWSC 1231 at [12], by Emmett AJA, it might be regarded as “unusual that the de facto relationship that appears to have existed came to an end without separation”.

Ultimately, whilst “a de facto relationship is inherently terminable at any time [it] continues to exist only insofar as the indicia which give the relationship its … character continue to exist”: H v P [2011] WASCA 78 at [56] (Murphy JA, Pullin and Buss JJA agreeing).

As people enter, and decide to remain, in a marriage with a variety of purposes and motives, hopes and anticipations, so, also, can persons who enter, and then, remain, in a de facto relationship. The ultimate test is whether, at the time of the deceased’s death, it can be said that the parties had a mutual commitment to a shared life.

As stated, the Defendant submitted that whilst there had been a mutual commitment to a shared life for a period of time, that commitment ceased when the deceased went out with another woman, or women, and acted contrary to his commitment to the Plaintiff.

I do not accept this submission. The Plaintiff remained living in the Glenorie property, which she regarded as her home, something which the deceased did not seem to dispute, as he took no steps to have her leave. Indeed, there is no direct evidence that he had ever asked her to leave the Glenorie property, although he may have told some people that she would not leave. Furthermore, there was no evidence, that persuades me that whilst she continued to live there, there were two separate households, not one. A couple are not obliged to spend every waking moment together. Each may engage in activities, see people socially, and attend family events separately.

The event in 2015, when he told her that he was taking another woman to dinner, unsurprisingly, one might think, was the catalyst that caused her to see a solicitor, but his liaison with the other woman appeared to last only a matter of weeks.

I accept the Plaintiff’s evidence that she did not spend much time away from the Glenorie property, only occasionally going to the McGraths Hill property to assist Bettina and to be with Billy.

There does not seem to be any real dispute that she and the deceased continued to eat meals together and continued to communicate one with the other. They appeared to have socialised together (albeit perhaps not as much as they had done previously). The deceased continued to financially support the Plaintiff, as he had done throughout the earlier years of the relationship. The Plaintiff’s two children, and her grandchild, continued to enjoy a close, warm, and loving, relationship with the deceased. Importantly, the Plaintiff continued to look after, and care for, the deceased without the assistance of other family members. I am satisfied that she and the deceased maintained a sexual relationship although with his state of health, after 2018, the nature and intensity of the sexual relationship may have diminished.

It is clear that the Plaintiff depended upon the deceased financially, there being no dispute that he paid for most of their joint expenditure. There was some financial independence, there being no evidence of a joint bank account or joint property.

I have earlier mentioned the fact that the children of the deceased permitted the Plaintiff, alone, to care for the deceased when he was unwell. Very significant, to my mind, is also the fact that she paid for the deceased’s funeral, and was, it seems, permitted to do so by other family members. (I have earlier noted that she is to be reimbursed out of the estate for those expenses.)

These matters do not support the submission that there was “such a forsaking and abandonment by one spouse of the other that the court can say that the spouses were living lives separate and apart from one another.

I have dealt with the reputation and public aspects of the relationship and the evidence of the independent witnesses who have no interest in the result of the proceedings.

Whilst I have read the documents that formed part of the solicitor’s file notes, the Plaintiff’s request to the solicitor to put things on hold, and then to do nothing, which prompted the communication in 2017, which resulted in the solicitor writing to say that the file would be closed, supports the Plaintiff’s evidence that the relationship between her and the deceased was improving and that the relationship had not ended permanently.

Looking at the composite picture, that even though the relationship between Plaintiff and the deceased went through serious difficulties between 2015 and 2017, and perhaps through less serious problems between 2013 and 2015, and whilst they might have lived in a somewhat strained situation, as evidenced by the statement made to her then solicitor that they had separated, in fact, they did not “keep apart”.

Bearing in mind all of the facts of the case, I am satisfied that the Plaintiff was a person with whom the deceased was living in a de facto relationship at the time of his death.

In light of this finding, it is not necessary to deal with the other ground of eligibility upon which the Plaintiff has relied. In any event, there is no dispute that the Plaintiff is an eligible person within the meaning of s 57(1)(e), being a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased was a member.

There is also no dispute that there are factors warranting the making of her application.

The next question for the Court to determine is whether the Plaintiff has been left with inadequate provision for her proper maintenance or advancement in life in relation to the estate of the deceased.

The answer to this question “constitutes a finding of fact, albeit one that is, in light of the subjective character of the matter to be decided, evaluative. Nevertheless, making the finding involves a binary choice – either adequate provision has been made, or it has not. A finding on the issue does not, therefore, involve an exercise of discretion”: Strang v Steiner [2019] NSWCA 143 at [76] (Macfarlan JA); at [131] (White JA); at [190] (McCallum JA).

Into whichever category of eligibility the Plaintiff falls, there was no dispute about this element, which is the mandatory legislative imperative that drives the ultimate result. I am satisfied that the making of no provision for the Plaintiff is not proper, and that consideration must be given to making a family provision order “out of the estate of the deceased as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”: s 59(2).

Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

The question that must next be determined is what, in all the circumstances constitutes adequate and proper provision.

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

In Re Dennis (Deceased) [1981] 2 All ER 140 at 145-146, Browne-Wilkinson J wrote:

In Vigolo v Bostin (2005) 221 CLR 191 at 228-229; [2005] HCA 11, Callinan and Heydon JJ said of the words "maintenance", "support" and "advancement":

In Alexander v Jansson [2010] NSWCA 176 at [18], Brereton J (with Basten JA and Handley AJA agreeing), said:

More recently, in Lewis v Warner [2016] 3 WLR 1545 at 1553; [2016] EWHC 1787 (Ch) at [26], Newey J wrote:

In McCosker v McCosker (1957) 97 CLR 566 at 575; [1957] HCA 82, Dixon CJ and Williams J wrote:

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote:

In Goodman v Windeyer (1980) 144 CLR 490 at 505; [1980] HCA 31, Murphy J wrote:

In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said (Hodgson JA agreeing):

In my view, advancement in life may be seen as provision that will improve, and enhance, the material situation of the Plaintiff.

In determining the nature of any order for provision, the Court may have regard to the matters set out in s 60(2) of the Act.

I have referred to the fact that the estate is of large value. I remember, however, that whilst the value of the estate is a consideration in determining an application for provision, its value does not justify the Court re-writing the deceased’s will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 at [67] (Hargrave J).

I note that the Plaintiff is not cohabiting with another person.

Section 60 does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

Under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

As I have determined the question of eligibility, and because there is no dispute that the Plaintiff’s application was made within the time prescribed by the Act, I turn now to the nature of the order to be made in favour of the Plaintiff.

I have dealt with the family, or other, relationship between the Plaintiff and the deceased, including the nature and duration of the relationship (which was lengthy); the nature and extent of the deceased’s estate and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered (which is large); the financial resources (including earning capacity (which is limited, particularly bearing in mind the nature of the work that she does and her age) and the Plaintiff’s financial needs, both present and future, as well as those of each of the deceased’s three children, as a beneficiary of the deceased’s estate; the Plaintiff’s age and physical disabilities; the non-financial contribution made by the Plaintiff to the welfare of the deceased over many years (which was significant); the financial provision made for the Plaintiff by the deceased during his lifetime, or made by the estate in permitting her to remain in occupation of the Glenorie property since the deceased’s death (which was generous); that the Plaintiff was being maintained, significantly, by the deceased before his death; that there is no other person liable to support the Plaintiff; the conduct of the deceased; and the testamentary intentions of the deceased, including evidence of statements made by him.

I am of the view that the deceased had a significant obligation and responsibility to the Plaintiff as the person with whom he was living in a de facto relationship at the time of his death. In reaching this conclusion, I have considered “the tenor of their relationship and their dealings with each other since its inception”: Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524 at [251] (Rees J). I have also borne in mind, that the relationship included the difficult period, particularly between about 2015 and 2017. Yet, almost all of the evidence from disinterested witnesses, in that period, confirms the continuation of a shared life.

The obligation and responsibility to each of his children as competing claimants on his bounty, even though it does not appear that any of them had been financially dependent upon him for many years before his death has not been disregarded.

In my view, the value of the estate is sufficiently large to satisfy the obligations that the deceased had to each of the eligible persons who must be considered. The question, ultimately, involves an intuitive, or an evaluative, judgment. The measure to be applied is not what has been given to the beneficiaries, but what the Plaintiff needs for her proper maintenance and advancement in life, having due regard to all the circumstances of the case. It is not a mathematical assessment, or one that is dependent upon only calculating the costs of meeting demonstrated need.

Whilst I remember that the Act was never intended to enable the freedom of testamentary disposition to be so encroached upon that a will-maker’s decisions expressed in his Will should have only a prima facie effect, the real dispositive power being vested in the Court, and taking into account the matters to which I have referred in s 60(2) of the Act, in my view, the Plaintiff, should receive, by way of provision, a lump sum of $850,000 out of the estate of the deceased. The provision should be provided out of the residuary estate.

The lump sum will enable her to pay off her debts (about $300,000) and will leave her with a capital sum of about $550,000 for exigencies of life. She has a home into which she can move if she wishes. She can use the lump sum, after paying offer her debts, to provide an income and/or to assist her to purchase alternative accommodation if that is what she wants to do. At the age 71 years, she requires a reasonable fund to protect her from the vicissitudes of life.

It is unnecessary to determine the provision that should be made if I am in error as to the relationship of the Plaintiff as the person with whom the deceased was living in a de facto relationship at the time of his death. It seems to me, however, having regard to the matters set out above, that a lump sum in the same amount could be provided out of the estate to the Plaintiff, if she was a member of the household of which the deceased was a member and was wholly or partly dependent upon him.

Even if the de facto relationship did not exist at the time of death, the Plaintiff’s needs remain the same as do, in my view, the obligations and responsibilities of the deceased to her. Accepting the evidence of the Plaintiff and her witnesses, as I have done, in all the circumstances, does not alter, in any significant way, what would be adequate and proper for the maintenance and advancement in life of the Plaintiff in the event that she was a member of the household and wholly or partly dependent upon the deceased.

The value of the deceased’s estate that remains, even after the payment of costs, will be significant, and in all probability, no less than about $5,400,000, which should yield about $1.8 million to each of the children of the deceased.

It follows that the Plaintiff has been successful in the proceedings. However, I am unable to determine the question of costs. If agreement cannot be reached, counsel should also be heard in relation to the precise form of the orders to be made to give effect to these reasons.

The Court: