TURNLEY v SWAAB [1999] NSWSC 594

New South Wales Supreme Court CITATION : TURNLEY v SWAAB [1999] NSWSC 594 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 4856/97 HEARING DATE(S) : 28/05/99 JUDGMENT DATE : 28 May 1999

PARTIES : DONALD HERBERT TURNLEY v FREDERICK SWAAB AND ANOR JUDGMENT OF : Master Macready

COUNSEL : J.N. West QC and N.J. Kidd for the plaintiff L. Ellision for the defendant SOLICITORS : Richard Barron for the plaintiff Swaab Attorneys for the defendant CATCHWORDS : Family Provision DECISION : Paras 76-78

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

FRIDAY 28 MAY 1999

4856/97 - DONALD HERBERT TURNELY v FREDERICK SWAAB - ESTATE OF GLORIA JARMAN

JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Gloria Elvira Jarman who died on 19 July 1995 aged ninety-two years. She was survived by two second cousins and the plaintiff. The plaintiff alleges that he was in a de facto relationship with the deceased from 1975 until the date of death. 2 The last will of the deceased was made on 28 October 1993 and under that will the deceased appointed two solicitors who were executors and gave a bequest of the residue of the money in her Advance Bank account to her second cousin, Doctor Sandor. She gave her property which is Unit 9, 59 Gilderthorpe Avenue, Randwick, to the trustees to sell it and pay a legacy of $5000 to her other second cousin, Eva Sandor, and the rest of the proceeds of sale to the National Representative of Hungarian Jewish Children to use for the benefit and advancement of sick Hungarian Jewish orphan children. Effectively she gave the rest and residue of the estate to the National Representative of Hungarian Jewish Children. 3 She had, at an earlier time, made another will and that was on 22 May 1990. That will, in effect, gave legacies of $15,000 to Eva Sandor, two other pecuniary legacies of $15,000 and $5000 to people who did not take any part in this case, $5000 to Thomas Sandor and the residue to the same charity. 4 The estate of the deceased at the date of death consisted of Unit 9, 59 Gilderthorpe Avenue, Randwick which in the past has been estimated to have a value of $195,000 although a recent report for the purposes of marketing for sale suggests that it might be in the vicinity of $250,000 to $300,000. There is also a bank account having a sum of $10,387.82 and there was a refund due of a sum of $266.67 and a number of payments worth $6000. 5 There are substantial costs which have been incurred, both in the administration of the estate and in these proceedings. The defendant's costs are estimated at $17,000 and those of the plaintiff are estimated in a similar amount. 6 It is probably useful to deal with a little of the history first. The deceased was born on 21 December 1902 and the plaintiff was born on 28 April 1927. There was thus a twenty-five year age difference between them. It seems clear that they first met in late 1960 and in July 1969 the plaintiff was involved in a real estate business and helped the deceased to purchase the property which is the one that she held at the date of death. 7 The plaintiff also alleges that an intimate relationship commenced between himself and the deceased at this time. In the early 1970s the plaintiff was involved in a rebuilding or development of boarding houses when he ran into trouble with the Builders Labourers Union and could not complete it. Effectively he got into financial difficulties. At that stage he was still married and in due course, because of the financial difficulties, and the building up of interest over time the project was foreclosed. He ultimately sold what properties he was able to salvage from the split up of his marriage to pay out his creditors. His wife and he separated, his wife taking some other properties and leaving him little. In 1975 after that debacle he moved in to the unit of the deceased and commenced to live with the deceased, according to him, in a de facto relationship. 8 The plaintiff puts the time of when the deceased's health deteriorated in the early 1990s and it is clear that was so. Some other independent witnesses also said of this happening at this time. The plaintiff himself was not in good health and by 1979 had problems with his middle ear. In 1992 he was in hospital for surgery for some form of cancer. In 1993 he was back again in hospital with injuries to both shoulders and from then on he seems to have suffered from high blood pressure and emphysema and a number of other difficulties. 9 The deceased's will was made in October 1993 and there was some contact at this stage with a solicitor who drew it, Mr Swaab, who is the executor in these proceedings. I will come back to that. 10 In late 1993 the deceased suffered a stroke and that meant that she effectively was disabled and in full-time care in hospital. On 7 June 1994 the Guardianship Board made an order appointing the plaintiff as guardian and manager of her affairs. That was for a period of six months and on 5 December 1994 there was an order continuing that guardianship. On 19 July 1995 the deceased passed away. A short time afterwards on 10 August 1995 written notice was given to the defendant's solicitor of the plaintiff's intentions to seek an order under the Act. 11 In due course in December 1995 an application for probate was lodged. In March 1996 the defendant renounced probate. By 19 January 1997 the time by which the plaintiff ought to have commenced proceedings expired. Proceedings were in fact commenced on 24 November 1997 and on 3 December 1997 probate was granted. It can be seen that the application is thus out of time. Accordingly, it is necessary under the Family Provision Act to allow an application to be made notwithstanding it is out of time. 12 There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 13 His Honour Young J has in several cases dealt with the principles governing application to extend time under this Act. In Massie v Laundry (unreported 7 February 1986) he indicated that the factors which one looks at include the following: (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 14 He also accepts apparently a view which was expressed by his Honour Needham J in Fancett v Ware (3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported 31 March 1988) Powell J, when considering the matter at the substantive hearing, leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported 8 September 1989). 15 In De Winter v Johnston, a decision of the Court of Appeal on 23 August 1995, his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me, no extension of time ought to be granted unless it be established (inter alia) that the application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 16 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 17 It is necessary, of course, to consider firstly whether the reason for making a late claim is sufficient. It is perfectly obvious in this case that the plaintiff new about the time at which he had to make an application very shortly after the death of the deceased. He does not dispute that and he was also given a copy of the will and he knew that he did not take any benefit. The explanation that is proffered is one which relates to the plaintiff's health problems. In his affidavit of 14 April 1998 he referred to the fact that he has had osteoarthritis. This requires treatment and his medication means that he was unable to leave home or deal with even the simplest task. He said that these problems created enormous difficulties for him to provide instructions to his solicitors for the carriage of the matter. He mentions that he had to cancel conferences due to ill health with both solicitors and counsel and at that particular stage he had not been well enough to attend any meetings with counsel. 18 This story is also repeated in his affidavit of 7 December 1998. His solicitor who had the carriage of the matter has also dealt with it and he annexes correspondence which passed between the solicitors recording the continued intention to commence the proceedings and at one stage a suggestion was made that time for bringing the proceedings be shortened. He gave evidence of the conference on 28 July 1995 in which he said that he had given appropriate advice to the plaintiff as to the time limit within which he could make an application. 19 He also then referred to the difficulty in obtaining instructions from the plaintiff and then referred to the many occasions when appointments were made for the plaintiff in advance to enable him to be medication free. He said that on most of these occasions he was advised by telephone that he had had a relapse and required medication and could not keep the appointment. On the few occasions that he did come it was not easy to obtain instructions from him because of his hypertension. 20 The evidence is in the most general terms and it is perhaps what might be described as a fairly meagre explanation. 21 I have been referred to two decisions, one of Burns v Hayes and also a recent decision of mine in Mozley v Mozley. In particular in that later decision I was there concerned with a situation about a person who, knowing her rights made a conscious decision to refrain from making an application, basically because she was happy with the terms of the provision made for her. It was only when some later factors supervened she changed her mind and at that stage she was out of time to bring an application. 22 The factual circumstances in this case are quite different. Here is a man who, on his story, has lived for some twenty years in a de facto relationship. He, by this time, is in his late seventies and he has to face up going to court. I do not think there is any doubt about the fact that he has many problems and part of the explanation may be, although this may be speculation as he was not cross-examined on it, that was some aspect of approach avoidance. He perhaps could not face up to giving the appropriate instructions to commence the proceedings. 23 However, it certainly is not a situation where he has deliberately decided not to proceed. The evidence does not indicate that at all. For myself, I think the explanation is fairly marginal were it not for two matters which I am about to refer to on the question of the ultimate conclusion on the application and its chances of success. 24 The next matter to consider is, of course, whether there is any prejudice to the beneficiaries if time were extended. On this matter there was early advice given and the estate has not changed. In actual fact the plaintiff has been in occupation doing things such as paying rates on the premises. Accordingly, I cannot see that there is any prejudice at all. 25 The next question is whether or not there is any unconscionable conduct on either side. The evidence gives no indication of any such conduct. 26 The next matter to consider is of course the strength of the plaintiff's case and before making any final decision on extending time I will turn to the substantive aspects of the matter. The plaintiff suggests that he is an eligible person by reason of the fact that he was, at the date of death, living with the deceased person as her husband on a bona fide domestic basis. Alternatively, it is put that if this is not established then he was part of the household of the deceased and dependent upon her. 27 The question of whether or not the plaintiff and the defendant were living together as husband and wife on a bona fide domestic basis must be determined in accordance with the principles recently referred to by the Court of Appeal in Light v Anderson & Ors(1992) DFC 95120. They referred with approval to the decision of Mr Justice Kearney in Simonis v Perpetual Trustee Co Limited (1987) 21 NSWLR 677 where his Honour, in dealing with the similar expression in the Family Provision Act 1982, after reviewing the authorities said at p 685 the following: "I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept and therefore has to be approached by considering the expression as a whole and not in several parts. This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case (see 106). I consider that the factors referred to by Powell J, while not being regarded as a complete test, serve the purpose adequately in the present case to determine the question of eligible person. The factors indicated by Powell J are as follows (at 459): 1. The duration of the relationship. 2.The nature and extent of the common residence. 3.Whether or not a sexual relationship existed. 4.The degree of financial interdependence and any arrangements for support, between or by the parties. 5.The ownership, use and acquisition of property. 6.The procreation of children. 7.The care and support of children. 8.The performance of household duties. 9.The degree of mutual commitment and mutual support. 10.Reputation and 'public' aspects of the relationship. 28 His Honour also referred to the support to be gained for this approach from the report of the New South Wales Law Reform Commission concerning de facto relationships (LRC 36 (1983)). His Honour quoted the following passage in the report (at 459): "17.10. The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long-term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a new legal significance." As I understand it, the parties substantially treated Powell J's approach as being appropriate to the circumstances of the present case." 29 Obviously, the list is not immutable and in particular cases other factors will have to be considered. The list is of use and it is convenient to discuss many of the incidents of the relationship between the plaintiff and the deceased under the headings set out above. 30 The first matter to deal with perhaps before turning to the individual matters is the question of the credit of the plaintiff. The plaintiff impressed me in the witness box as a straight-forward and honest person. In two documents that he has produced there is the appearance of inconsistent evidence to that which he has advanced in this case. One of these is a report from Sandra Radvin, a social worker, which she made to the Guardianship Board on 10 February 1994. In that he said, according to the author of the report, that he had been a close friend for thirty years and came to live together three years ago, upon her asking him to do so. That clearly is inconsistent with his story and there is also reference in another report of the Guardianship Board, exhibit E, that the plaintiff said that he lived in a de facto relationship with Mrs Jarman on an on and off basis for about ten years. The only explanation that the plaintiff can give was that he was upset at the time as the deceased had gone to hospital. They are inconsistent but one of the other witnesses who gave evidence, who was a friend of the plaintiff, said that the plaintiff had been living at the unit for quite some time which really was quite inconsistent with what was reported. Overall I am happy to accept the plaintiff as a witness of truth. 31 I turn to the individual matters, firstly the duration of the relationship. It is clear that according to the plaintiff's evidence that they met in the 1960s and the plaintiff recounts the evidence, as I have mentioned in dealing with the history of finding a unit for the deceased and assisting her in purchasing it. He says, and there is no reason to doubt it, that he gave her $2000 towards the purchase price. The purchase price of the unit was $13,900. The transfer is annexed and that shows the date of transfer as 14 July 1969. Accordingly that is a good substantiation of the purchase and of the plaintiff's evidence. At that stage according to the plaintiff the deceased's husband was critically ill with cancer in hospital and died shortly after the purchase. 32 There was other evidence given by other witnesses. In particular there was the evidence given by Maria Paino. In her affidavit evidence she deposed to the fact that she had known the deceased for thirty years when she first moved into the same block of units. Substantially she gave evidence of conversations with the deceased which includes one that the deceased said that the plaintiff was her lover and he moved completely into the unit with her in 1980 in a de facto relationship. The deceased mentioned that the only time Don was away was on business up the coast with his fishing boat or his boat business. She also spoke of the deceased receiving assistance from the plaintiff. She said that in 1989 the deceased said she would like Don to have the unit and she was going to leave it to him. She then goes on to deal with the period in 1990 when the deceased and the plaintiff had bad health and they were looking after each other. Clearly there is in the form of the affidavit a time frame or time order in respect of the matters dealt with. I also just mention for completeness that she also spoke of the problems that the deceased had with bowel trouble and with unbearable pain. 33 When she was cross-examined it was suggested to her quite properly on the basis of what was in exhibit 2 that in fact the plaintiff only moved into the unit in the early 1990s and before that did not live there. She agreed with that statement and thought she must have been in error. It is one of those rare occasions when perhaps the impression a witness creates is important when considering precisely the nature of her answer. It seems to me that when she was answering those questions she seemed to think that she was being presented with what were the established facts and therefore it was being suggested that she must have been in error. In other words, there was an acceptance by her of what was being put simply because it was being put as an established fact. I thus have reservations about accepting her answers in cross-examination because they are inconsistent with the general structure of what she was trying to tell the Court before. 34 There was some evidence also given by Mr Horbury who was a close friend of the plaintiff for about thirty years. He said that he met the deceased some twenty-five years ago and was a regular visitor to the property. His evidence was vague on the times of visits and accordingly is not of much assistance in determining the duration of the relationship. It is important to note that the deceased was in hospital from 1993 to 1995. 35 It seems to me that so far as duration, there was a relationship, the details of which I will come to later, and it existed certainly in the relevant sense from 1975. One of the notable things about this case is that there is no evidence that suggests that the plaintiff may have had another relationship or where he may have been if he was not at the unit or engaged on the business which took him away occasionally. 36 The second matter is the nature and extent of the common residence. According to the plaintiff they shared the main bedroom until the early 1990s when their health deteriorated. He then moved out into a separate bedroom. That is, of course, quite different to the story shown in exhibit 2 but it is at least, in part, consistent with the later reports made to the Guardianship Board. 37 Mr Horbury gave evidence of visiting the unit and noting that the deceased was in her bedroom and the plaintiff occupied another room. That is equally consistent with what the plaintiff said at the relevant time and the evidence does not explore the particular time to which reference was made. 38 There is an area of evidence which has to be considered and that is there are a number of statements made by the deceased as to whether or not the plaintiff was a boarder. 39 Mr Swaab, who is the executor, gave evidence of discussions with the deceased. He does say that he visited her at her home and had known her over a period of time but I do not get the impression from his evidence that there was some personal friendship. He gave evidence following the making of the will in August 1990 that he raised the question of marital status. He asked whether the plaintiff was her de facto and the deceased said no. During 1991 he had a conversation with the deceased when he asked was the plaintiff her boyfriend and she replied, "I am 87 years old. He is not my boyfriend." In November 1993 there was a conversation when again the deceased said that he was living there as a boarder, he doesn't pay any money, and expressed some view that she would like him to go. The request for him to go is perhaps explainable and perhaps did happen because the plaintiff perceives that the deceased became irritable and cross towards the end, perhaps because of problems she had with her health. 40 In assessing these statements and perhaps also a statement made to the Guardianship Board, one has to have regard to the person to whom they are being made. The solicitor was not a personal friend, apparently, and was not someone whom the deceased might take into her confidence when she was planning to leave her estate to family in Hungary or to some charity. Maybe by this time, and clearly on the plaintiff's version, they were not having a sexual relationship and that she was not feeling like communicating the true story to the solicitor to whom she was giving instructions to leave money to someone in Hungary. 41 Similarly, regarding the Guardianship Board, that may also have caused embarrassment to the deceased in disclosing those matters. I think not too much store can be placed on these statements. They are when the deceased was quite old and perhaps spoken on occasions when she would not normally wish to disclose the existence of the relationship. 42 The other area that one has to consider is, of course, the evidence of statements made to friends. There are the statements made, for instance to Mr Horbury, that she was very close to Don, he was a good lover and a mate and did work around the house. A statement like that made to a close friend or a long time friend is likely to be true. There are also the statements made to Maria Paino and they are also in the same situation. They bespeak of a close relationship and a close association including a desire to leave the plaintiff the unit in both instances. 43 I am satisfied that in fact the plaintiff was not a boarder. There is no suggestion anywhere in the evidence that he paid any rent. When one looks at the evidence the appropriate conclusion is that they did have a common residence and they shared a bedroom up until the late 1980s or early 1990s when they moved into separate rooms. 44 Number 3 is whether or not a sexual relationship existed. I have previously referred to the evidence of the other two independent people who have given evidence and I am prepared to accept the plaintiff's evidence as to the extent of the sexual relationship. 45 Number 4, the degree of financial inter-dependence and any arrangements for support, between or by the parties. There is evidence of the plaintiff paying bills from time to time and that does not seem to be disputed. He continued to do so after the date of death. 46 Number 5, the ownership, use and acquisition of property. There is no relevant property. 47 Numbers 6 and 7, children - clearly these matters are not relevant. 48 Number 8, the performance of household duties. There is evidence from the plaintiff that they would shop together and even on the deceased's statement to which I have referred they went shopping together. There is no reason not to accept the plaintiff's evidence of washing clothes of the deceased during the periods when she was ill. 49 Number 9, the degree of mutual commitment and mutual support. The evidence of this is probably the most compelling evidence. The evidence the plaintiff gives, which is also backed up by Mrs Paino, is of personal assistance to the deceased during the period from 1990 to 1993. She did have apparently great pain and needed things such as suppositories. She needed attention and the plaintiff did all these personal matters for the deceased which bespeaks a close relationship. 50 Another matter is, that between 1993 and 1995 when the deceased was in hospital and unable to communicate, the plaintiff still visited her. That is not disputed and that also bespeaks of support for the deceased. To a certain extent the appointment of the plaintiff as guardian of the deceased also indicates continued support in her illness. If the relationship had not been a close one, the giving of this sort of care that I have referred to and the taking on responsibilities in respect of a person could well not occur. 51 Number 10, reputation and public aspects of the relationship. There is some reference to visits by friends tailing off as she became more ill. 52 Overall I am satisfied that there was a de facto relationship between the plaintiff and the deceased. The question which arises, given some of the evidence, is whether there was any interruption to it. The evidence indicates that over the period of the relationship the plaintiff had a number of occupations. On occasions he would do up cars and sell them. His interests seem to be more maritime. He was involved in chartering boats and occasionally involved in deals selling boats. From time to time he would go away to sea for fishing and other commercial duties. The evidence seems to indicate that he may have been away for a period of a month or two on those occasions. 53 The other area, of course, is the fact that between 1993 and 1995 the deceased was in hospital. It is necessary, of course, for the plaintiff to be an eligible person that he was in the appropriate relationship at the date of death. This raises the question of how a relationship of this nature does terminate. 54 There have been a number of references in the cases to the problem which started to surface in Australia in cases under matrimonial legislation which provided for parties living separately and apart as a ground for divorce. An earlier case which is of use on the general principles is Main v Main (1978) CLR 636. At p 642 in the joint decision of the majority the following was said: "Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary. In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health or it may be even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life and all the other circumstances of the parties." 55 As indicated by the High Court, there are matters of degree of separation, and particularly in accordance with the passages I have indicated, separation by reason of illness or otherwise does not mean that the relationship has ceased. 56 A matter also arising in a number of cases under the De Facto Relationship Act frequently occurs in the context of whether or not there have been several separate periods of relationship. This sometimes is significant because a period of relationship and a separation period might be before the commencement of the Act. The matter was dealt with at an early stage in Hibberson v George. That was a decision of his Honour Cohen J which went on appeal to the Court of Appeal. At the trial his Honour Cohen J had the following to say: "The use of the words 'living or having lived together as husband and wife on a bona fide domestic basis' suggests a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. See the reviews of the Law Reform Commission in its reports at para 17.18. It must be a question of fact whether, on separation, one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v McRae (1967) 68 SR (NSW) 361, the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together." 57 The theme which his Honour there picked up was repeated in the words of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 where his Honour said of the statutory definition the following: "It is correct...that the relevant relationship may continue notwithstanding that the parties are apart, for example on holidays. There is, of course, more to a relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies not in law but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. The learned judge, correctly, treated the matter as a question of fact." 58 McHugh JA agreed with Mahoney JA. Hope JA said he agreed with McHugh JA so that it would seem that this expression by Mahoney JA is a considered view of the Court of Appeal. 59 Since then the matter has been considered in a number of cases. In particular, Powell JA has dealt with this on a number of occasions. In Lipman v Lipman (1989) 13 Fam LR 1, his Honour had the following to say: "Although I accept that the concept of 'a de facto relationship' does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from 'the matrimonial home', and although I do not discount the possibility that 'a de facto relationship' may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case such as this, in which the 'de facto husband' requires the 'de facto wife' to leave the 'matrimonial home' and installs another in her place. As Mahoney JA said in Hibberson v George 12 Fam LR at 740; DFC at 75 supra: 'The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue." I therefore conclude that in this case, there were two discreet 'de facto relationships'." 60 In Thomson v Badger 13 Fam LR 559, his Honour Young J had to deal with a case where, as does not infrequently happen, the relationship was one which was interrupted by absences on quite a number of occasions. His Honour referred to the cases to which I have referred and also referred to Australian National Railways Commission v Gerlach (1987) DFC 95/048. He used that as a reference to the fact that one must view the circumstances in which the parties ceased to live under the same roof in the context of their total relationship and he posed the question that one must ask in the context of the total relationship as whether there was a mere lovers' quarrel or a termination of the relationship. His Honour looked at the case in hand and described it as one: ".. not being the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation, then usually a short time later the parties got together on the same basis against as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued..." 61 The matter has also been again referred to by Powell JA in Theodoropoulos v Theodosiou (1995) 38 NSWLR 424, where he referred, with approval, to the statement of Mahoney JA. Also in Gazzard v Winders, unreported Court of Appeal, 23 July 1998, he once again quoted with approval the statement by Mahoney JA in Hibberson v George. In that case Beazley JA had the following comments to make about Hibberson v George: "I would comment in passing only that I do not endorse in any unqualified way the comments of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725. For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship, may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for six weeks in a period of fourteen and a half years should prevent the Court from taking into account the circumstance that this was a lengthy relationship of that order. Even if I am wrong, I consider ten and a half years to be a relationship of a lengthy duration." 62 In the light of those matters, I think clearly t here is a strong weight of authority which supports the view expressed by Mahoney JA in the Court of Appeal in Hibberson v George. Of particular note is his view that: "... where one party determines not 'to live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely to enable the one party or the other to decide whether it should continue." 63 The qualification that perhaps emerges from what his Honour Young J was referring to in Thomson v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may, in fact, lead one, on a factual basis, to suggest that perhaps an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour. That is perhaps what Beazley JA was alluding to in her comments on Gazzard v Winders. But in any event she was also there more concerned with the more difficult circumstance as to wether the Court can take into account earlier periods of interruption to a relationship. 64 Here in the present case I think the evidence is all the one way. The absences on trips north on fishing trips or in dealings with boats are nothing more than the parties being separated by virtue of employment. It is quite telling that the plaintiff indicated that sometimes the deceased would be upset about this and demanded that he come back and on those occasions he simply came. 65 The other question is the period of illness between 1993 and 1995. As can be seen from the quotations that I have referred to from the High Court and the Court of Appeal, such a matter is not an interruption of the relationship. There is nothing to suggest there was an intention to terminate. Even if I were not of this view, clearly the plaintiff was part of the household and was dependent at least for the provision of accommodation on the deceased. It may well have been, even though it was not put to him, he could have had some other accommodation, but that is not what the parties chose to do. They lived in her house and in those circumstances, given the extent of the contact that I have found, I would have thought there would be factors warranting under s 9(1). 66 In applications under the Family Provision Act, the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a court must take. At page 209 it said the following: "The first question is, Was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life?' The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' et cetera were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance et cetera appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 67 The plaintiff's situation is fairly simple. He is a single man aged seventy-two in poor circumstances. His assets consist of a 1982 Datsun 280ZX valued at $1500 which has suffered hail damage. He has an unregistered Ford Fairlane worth about $500 and a trailer worth about $1000. He has negligible amounts in a bank account and liabilities on credit cards of about $3900. His income is the old age pension of $362.70 a fortnight. He still engages, when he can, in his minor businesses of buying and selling boats or cars. Given his age, that, no doubt, is tailing off. Recent medical reports indicate that he is suffering from emphysema, hypertension and capsular tears to both shoulders. He has generalised osteoarthritis and some other matters. He is on medication and in fact is taking five different sorts of medication. 68 It is necessary to have regard to other persons who might have claim on the bounty of the deceased. These, in this case, are the beneficiaries in the will of which probate has been granted. The evidence indicates that the two persons who take legacies are second cousins. The doctor has corresponded with the deceased and occasionally contacted her by phone. Apart from that there is no other indication of any close personal contact with those relatives. There is no evidence placed before the Court about their financial circumstances. The Court can assume that they do not wish those circumstances to be taken into account. In respect of the charity, there is no evidence in this case as to any contact between the deceased and the charity. No doubt the deceased's background may provide a reason why she may have included them in her will. 69 Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott which was approved by the Court of Appeal on 24 April 1986. There his Honour said: "Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first, to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and thirdly, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring." 70 There is, of course, no difference between widows' claims and widowers' claims. So far as the personal nature of the relationship with the deceased at the date of death is concerned, there also can be little difference. Here in this case we have a relationship which existed for some twenty years. It appears to have been happy up until the recent last few years when the plaintiff talked about the deceased becoming cranky and friends starting not to visit as often. So obviously there was some unhappiness at that stage. 71 An important matter to be considered, is that the plaintiff himself has helped to build up the estate of the deceased. He contributed $2000 to the purchase price of the unit which was $13,900. That was a substantial proportion of the price at that stage and it is a matter which has to be taken into account. 72 The other matter, of course, is that there was help and assistance during the years from 1990 to 1993. There has been strong submissions about the lack of evidence as to what would be an appropriate provision. It is trite that the Court can only make provision for a plaintiff left without adequate and proper provision for his maintenance, education and advancement in life. 73 I have frequently in this Court, as counsel knows referred to the absence of such evidence and how that directly leads to applications not being successful or not receiving what might be expected. The practical situation in this estate is that there are costs of some $34,000, if I make an order in favour of the plaintiff, which will have to be met. There is not sufficient cash and that would lead to the sale of the unit. The unit, having been sold, there will be an amount available. Although the expected price range is said to be between $250,000 and $300,000, one might perhaps take that with some reserve, but there may be, after the payment of costs, a sum in the order of $200,000 available to the estate. 74 The question is: In what way has the plaintiff been left without adequate provision? I have earlier indicated the provision that the Court might make in the case of a widow's claim where there has been a long and happy association and contribution to the estate. There should be provided, first, accommodation, secondly, a fund for contingencies and thirdly, sufficient so that the plaintiff can have an appropriate amount of income. This is a relationship of some twenty years, which is of a reasonable duration. The plaintiff will certainly need accommodation. How he might provide it is difficult to see, other than by moving to some cheaper accommodation or moving in with his children. He has four children, two of whom live in Sydney and they are boys in their thirties. They have no assets between them, apart from one of them having an interest in an investment unit with his sister. Two of his daughters live on the Gold Coast, one of them is married with a family, a husband and a home. The other has the interest in the investment unit. It may be a possibility that his children may come to his assistance but certainly the plaintiff cannot count on that. If they did it may be that the house will be preserved and not sold but, given the absence of evidence, I cannot assume that is likely to happen. Be that as it may, if the house is sold there is a sum of $200,000 and the plaintiff has need for accommodation which he may be able to meet although it would possibly mean moving elsewhere to a cheaper area. He is not well and he has difficulty getting about. He is living modestly on the pension. 75 The provision of a capital sum, even if he moves out to rented accommodation, will provide him with assistance for rent and provide him with assistance for his everyday living. I do not think the sum likely to come is such that one can categorise it as being beyond what he should have, even if he were to rent and use the sum to supplement his income. Often in these circumstances one sees competing claims on the property. Frequently there are children from the first marriage and one raises questions of whether or not it is appropriate that the whole of the capital should pass to the plaintiff. In my view, it is noticeable in this case that there is little evidence of the association with the minor legatees and absolutely no evidence of the association with the charity or the reason why the deceased decided to leave the property to that charity. 76 In those circumstances the appropriate order is that in lieu of the provisions under the will the plaintiff should receive the whole of the estate of the deceased. 77 I am satisfied in those circumstances that it is appropriate to extend time and I extend time for the making of this application to the date of the filing of the summons of the plaintiff. 78 The defendant's costs on an indemnity basis and the plaintiff's costs on a part and party basis to be paid out of the estate. The exhibits may be returned.