Supreme Court New South Wales Medium Neutral Citation: Sedgwick v Varzonek [2015] NSWSC 1275 Hearing dates: 23 & 24 October 2014 Date of orders: 14 September 2015 Decision date: 14 September 2015 Jurisdiction: Equity Before: Slattery J Decision: Plaintiff's Succession Act claim and contract claim fail. Plaintiff succeeds in equitable estoppel. Catchwords: EQUITY – claim for family provision – eligibility as de facto partner – eligibility due to close personal relationship – nature of plaintiff's relationship with the deceased – equitable estoppel – whether statements were promissory or created expectations or assumptions on plaintiff's part upon which deceased might anticipate that plaintiff would rely. Legislation Cited: Interpretation Act 1987, s 21C Legal Profession Act 2004 Mental Health Act 1990, Chapter 4, Part 3 Mental Health Act 2006, Part 2, Division 3 Property (Relationships) Act, s 5(1) Succession Act 2006, s 57, Chapter 3 Cases Cited: Balfour v Balfour [1919] 2 KB 571 Bar-Mordecai v Hillston [2004] NSWCA 65 Dridi v Fillmore [2001] NSWSC 319 Ermogenous v Greek Orthodox Community (2002) 209 CLR 95. Fung v Ye [2007] NSWCA 115 Harkness v Harkness [2011] NSWSC 1421 R v Reis [2005] NSWSC 707 Sharpless v McKibbin [2007] NSWSC 1498 Sidhu v Van Dyke (2005) 251 CLR 505 Walton's Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Category: Principal judgment Parties: Plaintiff: Richard Charles Sedgwick Defendant: Krystyna Varzonek Representation: Counsel: Plaintiff: M. Willmott SC; A. Blank Defendant: P.O'Loughlin Solicitors: Plaintiff: David Leon Penkin, David Landa Stewart Lawyers Defendant: Anthea Kennedy, Teece Hodgson & Ward 2012/387931 File Number(s): 2012/387931 Publication restriction: No Judgment 1. The late Marlene Xenia Reis was born in Poland on 7 December 1962. At the age of 18, during Poland's 1981 Solidarity unrest, she migrated to Australia, with her first husband Janusz. But they divorced soon afterwards. She met Michael Reis in 1989, marrying him in 1991. Marlene and Michael had one daughter, Tania, born in April 1990. They separated in 1999 when Marlene was probably developing a mental illness. On 4 September 2002 Marlene tragically stabbed Michael in a car on Sydney's North Shore. The following day she was charged with his murder. 2. In June 2003 Marlene was found unfit to be tried due to her mental illness. At a special hearing under the Mental Health (Criminal Procedure) Act 1990 s 18. In June 2005, Marlene was found not guilty of Michael's murder by Matthews AJ on the grounds of mental illness: R v Reis [2005] NSWSC 707. But in the meantime she had suffered accidental personal injuries, whilst confined in a mental health facility. On 15 July 2004 she fell from a balcony at Westmead Hospital and suffered severe spinal injuries resulting in paraplegia and traumatic brain damage. In August 2005 she brought personal injury proceedings against the Western Sydney Local Health District Health Authority. She settled her claim for a substantial sum at mediation on 6 October 2011. Her settlement required this Court's approval, which was given in the Common Law Division on 11 November 2011. 3. After the settlement approval, the lawyers acting for Marlene, Messrs Beilby Poulden Costello ("BPC") drafted a will for her. She executed it on 8 December 2011. Less than two weeks later she committed suicide. 4. The plaintiff, Richard Charles Sedgwick, brings these proceedings (proceedings numbered 2012/387931) under Succession Act 2006, s 57, for an order for financial provision out of Marlene's estate. Richard Sedgwick knew Marlene Reis in the last 9 years of her life, between 2002 and 2011. For almost the whole of this period Marlene was being treated for mental illness. For the last 6 years Marlene was managing the consequences of her paraplegia. The plaintiff claims that he was the de facto partner of Marlene at the time of her death and in the alternative that he was in a close personal relationship with her. He claims he is an "eligible person" to make a Succession Act, s 57 claim for provision out of her estate. 5. In the alternative, Richard Sedgwick seeks to propound either a claim in contract or an equitable estoppel that he contends arises from statements that Marlene made to him during her lifetime and that he acted upon. He says that she would use the proceeds of settlement of her litigation to buy a house to live with him. Alternatively he says that Marlene agreed to pay him $200,000 from the distribution of any proceeds she might earn from her personal injuries proceedings. Further and in the alternative, he claims approximately $55,000 as remuneration for his attendant care and domestic services rendered to her and for other disbursements on her behalf during her lifetime. The defendant, Marlene's executrix, Krystyna Varzonek, resists all these claims. 6. Marlene's mental illness dominated the last 9 years of her life. It had many consequences for her. It led to her killing Michael Reis and her subsequent trial for murder. It led to her being confined in mental health facilities. It led to her accident in Westmead Hospital and to her claim for compensation. And it led to her having unstable accommodation arrangements in a number of mental health facilities, especially in the last four years of her life, from 2007 to 2011. Mixed in with these momentous events was her relationship with Richard Sedgwick, which changed over time. 7. Tania brought her own separate proceedings against the estate for family provision under Succession Act, s 57 (proceedings 2012/385131). As will be explained below, Tania's proceedings were settled on the first day of the hearing. 8. The parties efficiently conducted these proceedings over three days on 23 and 24 October and 27 November 2014. Mr M. Wilmott SC and Mr A. Blank of counsel appeared for Mr Sedgwick instructed by Messrs David Landa Stewart Lawyers. Mr P. O'Loughlin of counsel appeared for the estate instructed by Messrs Teece Hodgson and Ward, solicitors. 9. The parties and the witnesses to these proceedings mostly referred to one another and to the deceased using first names. Without intending any disrespect to any party the Court in these reasons at times adopts the same convention and refers to the plaintiff and the defendant and the deceased by their first names, by their full names, or by their designation as parties, as the context most naturally requires. Marlene Reis' Family and her Estate Marlene's Family 1. Marlene Reis was one of two daughters of Anna and Tomas Krzewska-Kzieska. Her father Tomas, a lawyer in Poland, is deceased. Her mother a retired teacher now in her 70's, lives in the city of Lublin, in southern Poland, near its border with Ukraine. Marlene Reis has another older sister, Kamila Krzewska-Kzieska, who also lives in Lublin with Anna. There is no history of psychiatric illness in Marlene's family. 2. Marlene completed the Polish equivalent of the Higher School Certificate and married her first husband Januscz, a photographer, in Poland. The marriage did not long survive their migration to Australia. Marlene met Michael Reis in about 1989, when she was 24. She lived with him in Sydney. They were married on the deceased's 29th birthday, 7 December 1991. They lived together for another 8 or 9 years, separating when Marlene was about 37 and their daughter Tania was about 10. Marlene's Estate 1. Marlene Reis' will of 8 December 2011 appointed the defendant, Krystyna Varzonek, as her executrix, and giving her 2 per cent of her net estate. She gave the residue of her estate in equal shares to her daughter Tania, to her mother Anna and to her sister Kamila. The deceased had just settled her personal injuries claim for a substantial sum. The making of this will was a sensible precaution. 2. On 24 September 2012 the executrix made an interim distribution of $20,000 from the estate to each of the deceased's daughter Tania, mother Anna and sister Kamila. 3. The inventory of property upon the death of the deceased shows that at the time of her death she had gross estimated assets of $1.74 million, made up as follows: Property Owned Solely by the Deceased No. Description Estimated or Known Value 1 Personal furniture and belongings (donated to charity) E$500.00 2 (a) Bank accounts – St George 491513037 $48.58 2 (b) Bank accounts – St George 0056756940 $1,005.04 3 Proceeds of Personal Injury Verdict paid to The Trust Company $1,367,853.39 4 Received from GILD Insurance for care costs $109,200.00 5 Proceeds of fund paid by Danial Cave from hi insurance policy over deceased's life $8,827.13 6 Expected refund of legal fees from Defendant's solicitors in relation to Personal Injury $250,000.00 7 Credit for legal costs overpaid $3,000.00 TOTAL: $1,740,428.40 1. The deceased's single largest asset was the proceeds of her personal injuries claim. The proceeds of her GILD insurance were collected and were paid to the Royal Rehabilitation Centre and Home Care NSW on account of her liabilities for professional services provided to her. The deceased's funeral expenses were fully covered by her funeral plan. In preparation for these proceedings the executrix swore that the assets in the deceased's estate were $790,241.20, then invested in an estate account, together with a right to recover party/party costs for the deceased's personal injuries claim. The executrix estimated that the recovery of those costs would be in the order of $275,000 to $285,000. Since then party/party costs recovery has occurred in the sum of $270,000. 2. After meeting funeral costs and the repayment of a number of small loans, the principal liability of the estate is the legal costs of $506,862.89 payable to BPC for the conduct of Marlene's personal injuries claim. 3. The Trust Company acted as Marlene's financial manager of the monies received in the settlement. After Marlene's death The Trust Company accounted to BPC for its dealings with her settlement monies. By letter in February 2012 it reported to BPC as follows: "Please find below a reconciliation of Ms Reis' account. We confirm that we are not aware of any other liabilities. Opening Balance 0.00 Add: Supreme Court of New South Wales – settlement monies (received 22/12/11) 1,367,853.29 Less: Expenses Paid White Lady Funerals (date paid 09/01/2012) 8,827.13 The Trust Company Limited (date paid 30/01/2012) 3,300.00 Beilby Poulden Costello (date paid 31/01/2012) 506,862.89 518,990.0 Balance held as at 15 February 2012 $848,863.27" 1. Marlene's net tangible estate pre-trial was $790,241.20. Apart from the possible recovery of party/party costs, the estate had one other contingent asset: the estate's right to contest the size of the BPC legal fees in the sum of $506,862.89. It was contended against BPC as second defendant in the proceedings that Tania brought under the Succession Act that these fees of BPC were excessive. Although the fees had been paid, the estate sought a review of their quantum under the Legal Profession Act 2004 and a refund of any excess over and above what was determined to be reasonable. That claim was not wholly resolved by the time Mr Sedwick's proceedings were heard, although it was foreshadowed at the hearing that it was likely that once these other matters were resolved with BPC in Tania's proceedings that the net estate would be approximately $900,000. 2. As indicated Tania brought her own Succession Act proceedings against the estate. Those proceedings were settled on the first day of the hearing upon terms that the provisions of Marlene's will would be varied so that Tania would take 60% of the residue of the estate and Anna and Kamila would share the other 40% of the residue of the estate but subject to Mr Sedgwick's rights in these proceedings. The settlement also involved the executrix's and Tania's legal costs being paid out of the estate. 3. The claim in Tania's proceedings against BPC was settled in February 2015 on the basis that the balance of her Amended Summons was dismissed and the Executrix's costs were paid out of the estate and BPC bore their own costs. 4. Before the present judgment was delivered the parties gave the Court an agreed updated picture of the estate's financial position after the resolution of all costs assessment issues in Tania's proceedings and after the finalisation of the dispute with BPC. At the time of judgment the estate's controlled moneys account had a credit balance of $922,124.40. Some $8,800 in unbilled and unpaid legal expenses and estimated future accountant's fees should be deducted from that figure, producing a net subtotal of $913,324.40. From this the deduction of the amount of the defendant's legacy in lieu of commission of 2%, namely $18,057.91, leaves a net distributable estate of $895,057.91. From this figure some further legal costs of the parties will need to be deducted at the conclusion of these proceedings. 5. The parties gave estimates of their respective legal costs in these proceedings, as they are required to do by practice Note SC Eq 7. The plaintiff's estimated legal costs and disbursements, including court fees were $122,571. The estate's estimated legal costs and disbursements for both Tania's and Richard's proceedings were $122,288. Credibility Issues 1. Throughout these reasons the Court makes observations about which of the witnesses called in oral evidence should be accepted on particular issues. But some general comments are first made here about all the witnesses who gave oral evidence. Richard Sedgwick 1. The plaintiff, Richard Sedgwick, was a single minded and at times impetuous witness. He often spoke his mind directly without fully thinking or checking the facts. But at times he was prepared to make fair concessions. He often demonstrated a studied approach to difficult questions. He had a technique of defensively deflecting difficult questions directed to him by referring the questions to others, asking another question, or by saying something deliberately vague. But despite such tactics he was mostly a reliable witness. 2. He could be uncomprehending of and therefore a poor reporter of what others either said that they felt or had spoken to him, where such things conflicted with his own often single-minded outlook. His frankness about what he would have done, if he had discovered that the deceased had a relationship with another witness in these proceedings, Mr Danial Cave was quite compelling. He said firmly that he would have ended his association with her. I accept this as a true account of what he would have done. Luisa Silva 1. Luisa Silva was an impressive witness who was called in Mr Sedwick's case. She had herself suffered a spinal cord injury at the age of 18 and had coped with the effects of paraplegia for some 32 years at the time of the hearing. She had devoted much of her life to providing mentoring and peer support for other people in wheelchairs, based on her own experiences. She was a particularly precise and reliable witness and an accurate observer, who had demonstrable empathy for the deceased. She had very considerable insight into Marlene's periods of overwhelming sadness and distress at her situation. She first met Marlene in 2005 and had much contact with her right up to the period Marlene was in a group home for people with disabilities at New Orleans Crescent at Maroubra. James Butler 1. Mr Butler was a neighbour of Marlene Reis, when she was staying in her last residence at Anzac Parade. Although elderly and frail Mr Butler was a witness with good recollection, who was trying to tell the truth, just as he declared he was. I accept his evidence. He recalls seeing Richard Sedgwick at Marlene's Anzac Parade residence. Mr Danial Cave denied seeing Richard Sedgwick at the Anzac Parade residence but one of the reasons the Court does not accept that part of Mr Cave's evidence is because of Mr Butler's evidence to the contrary. Shantelle and Yolande Sedgwick 1. Shantelle and Yolande Sedgwick, the plaintiff's daughters, gave evidence in support of his case. They were articulate, communicative and generally reliable witnesses. They described with clarity their observations of their father and the deceased together. But they were both prepared to accept the practical limits on their capacity to make useful observations about their father and the deceased, given that they did not see them very often. Danial Cave 1. These reasons find that Danial Cave was in a close relationship with the deceased, Marlene for some years before her death. Mr Cave was a compelling witness called for the defence. He met the deceased in a mental health facility in late 2005 or early 2006. He had been acquitted of murdering his father in 1999 on the grounds of his mental illness and was also being detained in the same facility as Marlene Reis. He claims he formed a close relationship with Marlene. The objective evidence strongly supports his otherwise credible testimony of such a relationship at the time of her death. 2. His recollections were sound. He was sure that he spoke for a number of hours per day with the deceased, testimony that I accept. He says, and I accept, that he gave up smoking to be able to afford to call Marlene on the telephone. He had a real need for her company "as someone I could talk to". He explained in stark terms the importance of the relationship to him. He said, "you don't find many people you can talk to in a mental hospital". Marlene had been someone he could turn to, when he was a forensic patient. He had genuine empathy for the deceased and was attracted to her. Krystyna Varzonek 1. Marlene had met the defendant Krystyna Varzonek as a fellow member of the congregation of a Seventh Day Adventist Church in Pennant Hills in north-western Sydney that served the Polish community in Sydney. Marlene knew the defendant as the wife of the pastor of this church. The defendant was a reliable witness. But she gave the Court a clear impression that she had little time for the plaintiff. Even allowing for that, I accept her account of all her conversations with Mr Sedgwick and Marlene. 2. The defendant's testimony was that Marlene said positive things about the plaintiff, Richard Sedgwick from time to time. This should be accepted. She records that Marlene said to her that the plaintiff came twice a week to the New Orleans Crescent property and helped Marlene with her shopping and ate lunch with her. But I accept Krystyna's evidence that she did not speak to Marlene much about the plaintiff. Vogumla Brzeska 1. Mrs Vogumla Brzeska had first met Marlene Reis at the same Seventh Day Adventist Church at Pennant Hills, after Marlene had separated from Michael but before Michael's death. She had a genuine concern for Marlene's welfare. Although Mrs Brzeska met Marlene through the defendant she seemed independent of any attachments in these proceeding and was an excellent witness. She gave confident and reliable evidence that I accept. 2. Her evidence is particularly useful because it covers the period from before Michael's killing right through until just before Marlene's death, when Marlene was living at the property at Anzac Parade. Mrs Brzeska initiated contact with Marlene on a regular basis after she had first been admitted to hospital after her husband's death. Mrs Brzeska's observations are especially valuable because they are based on contact with Marlene over a long period, which gave Mrs Brzeska, who seemed to be a sensitive observer, a full appreciation of the variations in Marlene's mood and outlook over time. I accept Mrs Brzeska's evidence that Marlene had said when she was living at Anzac Parade she [Marlene] thought her relationship with Richard was "finished" and that he was not visiting her anymore. Krystyna Kochanski 1. Mrs Krystyna Kochanski was another person who met Marlene through the Seventh Day Adventist Church at Pennant Hills. Mrs Kochanski was a somewhat vague witness. She added only a little to the accounts given by others. But nevertheless I accept her various account of what Marlene said to her over the years. Marlene Reis and Richard Sedgwick – 2002 to 2011 1. The following is a narrative of the relevant history of the relationship between Marlene Reis and Richard Sedgwick. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded in these reasons. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected. 2. Richard Sedgwick claims to have been in a relationship with Marlene Reis in August 2002, right up until her death in the third week of December 2011. As the narrative below shows, the Court finds that there was a close relationship between the two of them from the time of their meeting through for many years. But the nature of their relationship in the last four years of Marlene's life is contentious. First Meeting – August 2002 1. Richard and Marlene met in August 2002, only a month before she killed her husband, Michael. At the time of their meeting Richard Sedgwick, a divorcee with two adult children was aged 60. Marlene Reis was 40. Mr Sedgwick says, and I accept, that he first met Marlene on 1 August 2002 at the Bourbon and Beef Steak restaurant in Kings Cross. At this time Marlene had been separated from her husband for about 3 years. 2. Richard and Marlene's relationship started off as friendship. I accept it quickly grew into a loving relationship. In the first month of their relationship they spent a great deal of time in one another's company, dining out, having coffee and enjoying entertainment. And they commenced a sexual relationship. 3. The first that Richard Sedgwick heard that Marlene was involved in the death of her ex-husband was when he saw the aftermath broadcast on television on the night of the killing. He realised that Marlene was to be arraigned in Hornsby Court the next day. He attended Court to support her in her appearance. The Mulawa Correctional Centre – September 2002 to February 2003 1. Marlene was sent to Mulawa women's prison [Mulawa Correctional Centre] on remand. After Michael's death Tania was immediately placed under the care of her aunts, his sisters, as earlier described. I do not accept Mr Sedgwick's evidence that he was the only person to visit her whilst she was on remand. Michael was dead. Tania was traumatised by the death of Michael, the parent with whom she was then living and was unwilling to see Marlene. Several members of the Seventh Day Adventist Church began to visit her at Mulawa, whilst she was on remand. But apart from them, Richard Sedgwick was her only visitor. Richard Sedgwick became Marlene's principal helper at this time and her main communication with the outside world. 2. Richard Sedgwick says, and I accept, that he made some financial contribution towards Marlene's welfare when she was in Mulawa. He placed $50 to $80 a week into her bank account, so she could buy cigarettes and food whilst in gaol. He contributed $2,000 towards her legal fees. He was on a pension at this time and had limited spare funds. This was all he could afford. 3. Richard noticed that Marlene's mental health was deteriorating at Mulawa. I accept his evidence that he petitioned the authorities, including the Deputy Governor of the Mulawa Gaol [Mulawa Correctional Centre], requesting that she be psychiatrically assessed. Whether it was due to his efforts, or the simultaneous judgment of the corrective service authorities, she was transferred to the Bunya, Psychiatric Forensic Unit of Cumberland Hospital ("Bunya") in February 2003. Bunya Psychiatric Forensic Unit – February 2003 to July 2004 1. Richard Sedgwick could not visit Marlene at Bunya for a month. When she was transferred to Bunya she had a florid psychosis. Visiting her would have been both pointless and distressing. But Richard soon made contact with her by telephone. 2. In their telephone contact Marlene invited Richard to come and see her. He commenced to visit her three times a week, twice during the week and on Sunday. This was the beginning of regular supportive visiting, beyond the support of any other person, that took place over many years. 3. Richard continued his small financial supplementation to assist Marlene's quality of life in Bunya, as he had at Mulawa. He took to her food, women's toiletries and cigarettes and provided her about $60 to $80 a week in cash. He was still a pensioner and this was a significant financial burden for him. Whilst she was in Bunya he discovered that Marlene was entitled to a Centrelink pension on account of her mental illness. He assisted her to apply for that pension and he became her authorised representative with Centrelink. 4. Richard's typical visit to Marlene at Bunya involved spending some time with her in the morning, leaving her to have lunch with her fellow patients, resuming the visit after lunch and often sitting on a grassed area at Bunya chatting, as their relationship grew closer. 5. Richard became something of Marlene's advocate with the doctors at Bunya. He attended all but one of her hearings of her Mental Health Review Tribunal ("Tribunal") hearings under the Mental Health Act 1990. Chapter 4, Part 3 (the equivalent to Part 2, Division 3 of the current legislation, the Mental Health Act 2006). The purpose of those periodic hearings was for the Tribunal, constituted pursuant to Chapter 9 of the Mental Health Act 1990 (the equivalent to Chapter 6 of the contemporary legislation), to determine whether Marlene was a mentally ill person whose detention should continue, and whether less restrictive confinement than Bunya was appropriate for her and reasonably available: s 62, Mental Health Act 1990 (and see s 38 of the current legislation). 6. In his own mind Richard's personal contribution to Marlene's mental well-being was always positive. I accept that in the early stages of their relationship it was. But as will be seen from some of the objective medical records, at a later point of time Marlene's medical professionals did not wholly see it that way. And I have reached the view that their perspective was the more accurate one. But I accept at this early stage that there was no one else in Australia to provide the support that Richard Sedgwick provided and I accept that he filled a necessary support gap in Marlene's life. 7. The defendant, Krystyna Varzonek, was close to Marlene. She visited Marlene at Bunya every two weeks, together with her husband, a Pastor. The visits had a strong element of pastoral care associated with them. But the defendant's husband visited Marlene even more often than she did. I accept the defendant's evidence that Mr Sedgwick was not present when she visited Marlene. The defendant, Marlene and the defendant's husband generally spoke to Marlene in Polish. 8. Marlene's treatment appeared to be progressing satisfactorily at Bunya. But in July 2004 she was involved in a severe accident that substantially and permanently diminished her quality of life. The Accident at Westmead Hospital – July 2004 1. On 15 July 2004 Marlene was taken to Westmead Hospital for a medical appointment. Something seems to have gone wrong with the booking of the appointment. It had either been cancelled before she got there or had never been booked in the first place. But whilst she was waiting there she fell from a balcony, and suffered severe head and spiral injuries. The following day, 16 July 2004, she was helicoptered to Prince of Wales Hospital, Sydney in what was assessed as a critical condition. 2. After her hospitalisation a number of medical decisions needed to be made for Marlene, as her parents were in Poland and her daughter was under age. Richard Sedgwick made these decisions for her. As a result of her accident apart from her brain injury, she became a paraplegic. Her spinal cord was severed at the T4 vertebra. 3. In August 2004 Marlene was transferred from the Prince of Wales Hospital intensive care unit to the spinal unit. Later the same month formal orders were made in the Family Court of Australia for Tania's welfare. Her paternal aunts Christine Reis and Jessica Farah were each given responsibility for Tania's day-to-day care, welfare and development while she resided with them. Rehabilitation at Moorong and Return to Bunya – October 2004 to February 2006 1. On 1 September 2004 Marlene was transferred for a short period to the brain injury unit at the Royal Rehabilitation Centre in Sydney. Then in October 2004 she was transferred to the Moorong rehabilitation spinal unit ("Moorong"), where she became a patient for approximately seven months. Richard Sedgwick says, and I accept, that he visited her almost daily when Marlene was at Moorong. He assessed her as being very depressed about her paraplegia and its consequences. He arranged for Marlene to access a pension to which she was entitled due to her mental illness, through a St George bank account. Again, as with the period just after Michael's death, Richard Sedgwick seems to have been the only non-professional person then in Marlene's life who was prepared and able to provide continuous support to her. 2. Mr Sedgwick did assist in improving her quality of life. By the end of her six month rehabilitation at Moorong, she could go on outings. Typically he would take them both by taxi to Top Ryde shops, push her about in her wheelchair, so she could do shopping and banking. Then he would push her in her wheelchair back downhill from the shops to Moorong. 3. Richard Sedgwick says that after about six months at Moorong he tried to persuade the psychologists supervising her not to move her from the security of Moorong. I accept his evidence on this. He says that he was concerned that Marlene was not coping at all well with the prospect of being confined to a wheelchair for the rest of her life. 4. But Marlene's mental illness still haunted her. On what was one of a number of such occasions she attempted to commit suicide at Moorong on 23 May 2005. She stabbed herself a number of times and was conveyed to the Royal North Shore Hospital intensive care unit. Richard Sedgwick says that in his opinion this incident was occasioned by the increased stress to her from the threatened move from Moorong back to Bunya. Whether or not that stress did contribute to her attempted suicide does not need to be decided. But the Court does accept Mr Sedgwick's evidence that he was an advocate on behalf of Marlene not being taken back to Bunya. After Marlene was admitted to Royal North Shore Hospital, I accept that Mr Sedgwick visited her there almost every day whilst she was being treated. Back to Bunya, Litigation Commences – May 2005 to June 2006 1. In late May 2005 Marlene was transferred from Moorong back to Bunya. From this time evidence emerges of conflict between Mr Sedgwick and the health practitioners looking after Marlene. Fairly quickly after Marlene's return to Bunya Mr Sedgwick formed the view that the health professionals there were not sufficiently well trained to manage a wheelchair bound patient such as Marlene. He says he was present on various occasions where he observed Marlene instruct members of Bunya on how to deal with her daily living requirements because they could not do so without instruction and he says that he was distressed that Marlene had been placed in an unsuitable living environment. 2. Mr Sedgwick did something about this. He saw that Marlene was unhappy and in June 2005 lodged a formal complaint to the Cumberland Hospital. The complaint is in evidence. It is impossible at this distance to assess the rights and wrongs of Mr Sedgwick's complaint and it is not necessary to do so. But the letter does establish that he was prepared to be a vigorous advocate in defence of her interests, when she had no other obvious advocate and when a combination of her illness and her disabilities would probably have made such advocacy difficult for her. Mr Sedgwick did visit a few days per week and took her on day outings. 3. It was upon her return to Bunya that Marlene that on 15 July 2005 Matthews AJ found her not guilty of murder on the grounds of mental illness (R v Reis [2005] NSWSC 707). An order was made in respect of her continued detention pursuant to the Mental Health (Forensic Provisions) Act 1990, s 39. She was conditionally released from custody. 4. In August 2005 Marlene instructed the solicitors, BPC, to file a claim against Westmead Hospital in relation to the personal injuries she had suffered. BPC corresponded with Marlene through Mr Sedgwick. Samples of the correspondence are included in the evidence. These include BPC's conditional costs agreement with Marlene and a letter of 13 January 2006. Mr Sedgwick attended all the conferences between BPC's solicitors and Marlene until about February 2011, when he was excluded from consultations. 5. But given the lack of other family support Marlene had at the time, I infer from what Mr Sedgwick says and from the surrounding circumstances that he played a very considerable part in initiating this litigation. Whether it would have been initiated without him is difficult to tell. But he was certainly an important factor both in commencing it and in driving it forward through BPC. Mr Sedgwick says that Marlene said to him, about the time the litigation was initiated, "If I get the money, you are coming to live with me, Richard. I want to buy a home that is wheelchair accessible and has two bedrooms and two bathrooms so we can live together". He says that he said to her, "If you get no money from your claim then you can come and live with me. We will make a plan somehow to be together". 6. I accept this conversation took place. The relationship between both of them was good enough at that time for such a conversation to have occurred. But later on their relationship deteriorated. I do not accept that such conversations continued into the 2009-2011 period. 7. But in my view these statements by Marlene were not meant and were not taken as promissory or as creating expectations or assumptions on his part upon which Marlene might anticipate that he would rely. At this stage this was still a loving relationship in which both Mr Sedgwick and Marlene were expressing thoughts to one another about a future together. What might happen if Marlene were ever to receive money from the just-commenced proceedings was at that stage speculative. The best that could be said about statements such as this, is that they were comments about one of many possible futures that Marlene and Richard could perhaps spend together. 8. Marlene's statement was highly conditional. She was in no position to know whether she would get any money from the proceedings. This reduces the power of any inference that she was intending to raise any concrete assumptions or expectations in Richard about future benefits by making such statements. Nor in my view did he take them any other way. General statements of the same kind made whilst their relationship was a good one should be assessed the same way. 9. Marlene attempted suicide again in February 2006, in circumstances that Mr Sedgwick attributes to the health professionals caring for her not taking his advice. His attitude in evidence was that he was right and the attending health professionals did not understand Marlene's real needs. But in my view his attitude to this is partly a function of his own personality rather than Marlene's objective needs. There is reason to doubt the integrity of his version on this occasion. On this and subsequent occasions Marlene's suicide risk increased due to Richard's refusal to allow medical professionals and case workers access to her assess her mental state. Richard Sedgwick blamed others for her suicide attempts. But in my view his conduct also placed her at risk. 10. But another figure appeared in Marlene's life about this time, a figure who was later to become very important to her. Mr Danial Cave seems to have met Marlene in about 2005 and 2006, when they were both at Bunya. But he went back to Long Bay Correctional Complex in 2007 and then spent a period of time at Morrisett Hospital in 2008. It was from there that he would speak to her daily by telephone, usually first thing in the morning and then in the evening. I accept that these calls occurred daily and that he even gave up smoking to be able to afford them. But their relationship had been anchored when they first met and spent time together in Bunya. I accept Mr Cave's evidence that they would often chat during this period from 4pm until 10pm, which was lock down time at Bunya. A close relationship developed between them then, and when opportunity allowed, it continued right up until she died. As Mr Cave put it, "we stuck together pretty thick, me and Marlene". A Visit from Poland – June 2006 to December 2006 1. Between June and December 2006 Marlene's mother Anna visited her from Poland. Anna was originally scheduled to stay in Australia on a three month visa but she was able to extend her visa for another three months to stay on with Marlene. 2. Anna's visit from Poland was sustaining for Marlene. Mr Sedgwick says and I accept that he retired to a degree into the background when Marlene's mother was here, so that they could have more time together alone. He recalls them speaking together in Polish in conversations that he did not understand. Anna's English was extremely limited. The plaintiff did facilitate the visit in a number of ways: he arranged to transport Marlene to the airport to greet her mother on arrival; and he assisted in taking both of them out on Sundays away from the institutional hospital environment. 3. But contact between Anna and Marlene and Tania was not able to be achieved during this visit. Tania was still quite young. It would have involved her meeting not only Anna but Marlene, something for which she was not yet ready. The evidence discloses therefore that Tania has never met her maternal grandmother, or indeed her aunt. 4. I accept Mr Cave's evidence that he knew Marlene as early as the time of Anna's visit. Mr Cave did not like Mr Sedgwick, right from the beginning of their contact. This is partly in my view because Mr Cave wanted to become closer to Marlene and to degree therefore resented Mr Sedgwick's present in her life. But I also accept that Mr Cave was upset because he thought that Mr Sedgwick did not treat Marlene well. His judgment about this was based on observations about conflict between Mr Sedgwick and people around Marlene that are supported by other evidence detailed below. 5. By the time of Anna's visit to Sydney some of the tensions in Marlene's life were becoming more sharply defined. But Mr Sedgwick undoubtedly did supply support to Marlene to facilitate her mother's visit. 6. Richard Sedgwick also engaged in odd behaviour during Anna's visit to Australia. In one part of his evidence that I accept, Danial Cave refers to being on a lunch outing with Richard Sedgwick, Anna and Marlene on one occasion. On this occasion Danial Cave observed Richard to be speaking abusively to a drunken lady in the street, rather than just leaving her alone as many people would. He says, and I accept, that this was done in a way that appeared to distress Anna. My view of Richard Sedgwick was that he could be impulsively discourteous at times. This incident was an example of such behaviour. The Plaintiff and Marlene at New Orleans Crescent – 2007 to 2011 1. Marlene moved out of Bunya and into a group home at New Orleans Crescent, Maroubra in November 2007. I accept that Mr Sedgwick played a part in assisting with this move and in advocating for Marlene to be released from Bunya into the community. The group home is a facility in which a small number of persons, often with physical and/or mental disabilities, can live outside the restrictions of institutional care and disciplines and in an environment with freer access to and by other members of the community. The group home at Maroubra into which the plaintiff was transferred was operated by a not-for-profit company, Spinal Cord Injuries Australia ("SCIA"). 2. Plaintiff held a number of meetings in 2007 with Marlene's principal treating psychiatrist, in which meetings I accept that Mr Sedgwick advocated Marlene's return to the community. He wanted to be closer to her and freer to see her in a more relaxed environment. In October 2007 the plaintiff participated in meetings with staff at Bunya, including social workers, to organise the transfer of Marlene and her belongings to her new residence at New Orleans Crescent. A Tribunal hearing in November 2007 cleared the way for her transfer to New Orleans Crescent. 3. Marlene was required to sign an agreement with SCIA to reside at New Orleans Crescent. The agreement allowed her to have visitors stay up to 3 nights after notifying the other residents. But the visitors could only stay for one week as a maximum and only with the consent of the other residents. Although this liberty was allowed to residents of this facility, its practical operation in relation to Mr Sedgwick caused friction with the group home's operator, SCIA as will be seen. 4. At the time of Marlene's move to New Orleans Crescent, Mr Sedgwick was living in a public housing scheme, which had stairs and was very cramped and could not accommodate her. I accept that had he been able to provide suitable accommodation that he would have tried to persuade her to come and live with him. But such accommodation was not available. 5. The SCIA group home was a secure venue. Each group home was occupied by three residents who shared a kitchen, laundry, dining room and lounge. But each resident had their own bedroom and ensuite. But there was no separate room for someone such as Mr Sedgwick to stay if he wished to visit Marlene. The living areas at the group home were also shared by SCIA staff members when they were attending to their duties in looking after group home residents. Whilst at the group home Marlene was also assisted by a personal care assistant provider and the Home Care service of New South Wales, a government agency. The SCIA staff were present on the premises, usually from 11am to 3pm and between 9pm and 5am each day. To access each of the bedrooms of the group home a resident was required to go through a shared common entrance. Each resident and each SCIA staff member had a key to this entrance. Each bedroom secured by lock and key. 6. The daily routine at the Group Home at New Orleans Crescent did not greatly vary. Marlene would rise at 5am and wait for a carer to arrive at 6am to assist with her showering, toileting and dressing. I accept that on many days of the week Mr Sedgwick would arrive at about 8am, after a carer had also provided breakfast for Marlene. They would then spend much of the day together doing domestic chores, talking and relaxing. Mr Sedgwick would often leave at about 4.30pm, and sometime a little later. He also accompanied her to medical and legal appointments and checked in advance for wheelchair access for any outings they were planning. 7. Particularly in Marlene's early years at New Orleans Crescent I accept that these visits were almost daily, but in my view as conflict escalated with other group home residents and with SCIA staff his attendance considerably reduced to well below daily in frequency. Among other reasons, it was simply not possible for him to visit that often towards the end of Marlene's time there because SCIA were placing obstacles in his way so as to reduce the frequency of his visits. 8. Mr Sedgwick claims that about the time of moving into New Orleans Crescent Marlene made more statements to him upon which he relied in continuing to provide services to her. He says, and I accept, they spent Christmas day 2007 together at Marlene's residence they cooked dinner together and they spent the Christmas/New Year holiday period quietly with each other. Mr Sedgwick says that Marlene said to him on this occasion "after I get the money from my claim we can live together in the same house. We can also go on a holiday together". He says that he responded to her, "That is something we can look forward to doing together". He says that during this conversation he observed for the first time in a long time he thought Marlene was "really looking forward to the future". 9. These statements should be assessed in much the same way as the discussions between them in August 2005, when the personal injuries proceedings were initiated. Richard and Marlene were still in an affectionate relationship in which they were discussing future possibilities together. What Marlene was saying was not intended to raise expectations or assumptions in him about financial benefits he was entitled to expect. This was the speculation of a couple who thought that if things turned out well they might be able to spend time together in the one house. But whether that future might be viable or not was quite uncertain. And just exactly what was expected of Richard in order to achieve the outcome of them living together on the proceeds of a settlement was not ever made clear in these conversations. He did not undertake to Marlene that he would fully manage her claim for her or take over communications with the solicitors, or that he would perform particular tasks for her. His side of what he could assume was expected to do was ill defined, even on his own version. 10. The lack of a binding expectation with any kind of clearly defined task on his part becomes even more evident in another conversation he alleges that Marlene and he had about the same time. This conversation was as follows: "Marlene: When my claim settles, I can buy a home for us to live together. Richard: Marlene, regardless of the outcome of your claim, we will find a way to live together. Either we will be able to afford to buy a home for us to live in together or I will request the Department of Housing to find accommodation that is suitable for your needs and so that we can live together. Marlene: Richard, no matter what happens, I want to live with you for the rest of my life. You are my dearest friend and long-time partner." 1. I accept Richard's evidence that this conversation took place. But whatever Marlene was saying here, their mutual understanding about their future life together seemed to be quite independent of the outcome of the legal claim and independent of any particular effort that Richard needed to put in to secure the outcome of the claim. These were merely expressions of endearment which were not taken to raise any obligations between them. Richard did not make any of his legal or non-legal work for Marlene conditional upon them having a home together. Nor did he communicate to her that his motivation in working for her the way that he did was in the expectation of such a benefit. For him to say such a thing would have been quite jarring, quite overtly calculating and quite inconsistent with the altruistic spirit of their exchange. 2. But Richard Sedgwick was not fitting into the group home environment. There were complaints from other staff and residents at New Orleans Crescent about him. These complaints were persistent and recorded a pattern of alleged inappropriate, intrusive and aggressive behaviour. The common features of these separate complaints, the period over which they were lodged and the variety of persons from whom they came, all tend to support their accuracy. 3. New Orleans Crescent – SCIA Records. These complaints were made to the management of SCIA, the owner and operator of the New Orleans Crescent facility. The dates and relevant parts of incident complaints in 2009 (covering any injuries and what led up to the incident) were the following: 1. 13 January 2009: Specify the injury, giving full details including the part/s of the body affected. Richard intruded into [a female resident's – name anonymised] room uninvited while [the resident] having shower. What led up to the Accident/Incident? Richard has unauthorised possession of room key. 1. 15 January 2009: Specify the injury, giving full details including the part/s of the body affected. Richard used abusive language towards [female residents] and aggressive body language towards me (pointing finger raised angry voice) What led up to the Accident/Incident? Richard wanting to have access to Stewart House. 1. 17 April 2009: Specify the injury, giving full details including the part/s of the body affected. Opening door to Richard who has been advised to stay away from home due to anti-social behaviour in the past towards residents and staff. What led up to the Accident/Incident? Marlene opening door and allowing Richard in. How exactly was the Accident/Incident caused? Richard not compliant with request not to remain in house. 1. 11 November 2009: Specify the injury, giving full details including the part/s of the body affected. Arrived at Stewart House to find Richard (Marlene Reis' friend) had parked behind the work car in the driveway. Over 20 months, as he did today, Richard continues to mutter under his breath at me- complaining that I either arrive to get the work car too early or that I bring it back too late and I shouldn't be there at these times. I ignore him to avoid any confrontation and today I did the same. After spending ½ hour in the office writing notes came out to find he was still parked behind the work car so to avoid confrontation took my own car to work instead. 1. These incident reports demonstrate a pattern of intrusion upon Marlene's house mates and confrontational behaviour with staff. To the extent that Mr Sedgwick denies this behaviour. I accept that he is honest in his denial and believed that he caused no harm or was just looking after Marlene's best interests. But an accurate assessment of him is that he lacks insight into the effect of his own, at times quite damaging, behaviour. I accept the incidents recorded in these reports occurred. 2. New Orleans Crescent – Report 4. Contemporaneous professional assessments also show what was happening at New Orleans Crescent between Marlene, Richard Sedgwick and other members of Marlene's household. The New South Wales Department of Health completed follow up risk management reports in relation to Marlene as part of the NSW Community Forensic Mental Health Service. Those reports were submitted to the Tribunal upon the periodic review of Marlene's situation. The reports contain useful information about the status of Marlene's relationships, the stresses upon her, and her living environment. Of these for example, report number 4, dated 19 February 2009 ('Report 4'), came at a significant period about halfway through Marlene's accommodation at New Orleans Crescent. 3. February 2009 was a significant time for Marlene. On 12 January 2009 she had attempted suicide once again. She had been found unconscious in her accommodation, having taken an overdose of tablets. Upon her transfer to the Prince of Wales Hospital she was scheduled under the Mental Health Act because she "became floridly psychotic". She was entertaining delusional beliefs. 4. Report 4 described the nature of her delusional beliefs: "Her delusional beliefs were thought to result from delirium. She believed that the SCIA manager was a member of the mafia and forced her to take the overdose. She also believed that the Polish mafia might have been able to hear her. This delirium lasted for only one day from the 15-16 January 2009. On 17 January 2009 Ms Reis reported to [Psychiatric Registrar] that she was not sure if Mr Sedgwick was 'just staying for the money'. On 12 January 2009 she had a urine drug screen with negative results". 1. But almost a fortnight preceding this 12 January event, Report 4 presents a disquieting picture of Richard Sedgwick's interference in Marlene's case management. I accept the accuracy of the representations contained in Report 4. 2. Report 4 discloses that on 1 January 2009 Marlene had been admitted to Prince of Wales Hospital after collapsing in her accommodation. It was uncertain whether the collapse was caused by an overdose, or as a result from a fever due to infection. Report 4 (recording what was contained in the relevant Prince of Wales hospital notes) said about Mr Sedgwick as follows: "It was reported that Mr Sedgwick had initially not wanted an admission to hospital. Prior to this point the community services involved in her care were restricted by Mr Sedgwick. He would not allow them to talk to her independently and exhibited threatening behaviour towards them." 1. I accept Report 4 as accurate on this subject. Mr Sedgwick is here again showing possessive behaviour and threatening community services staff. The same behaviour was evident 12 days later. Marlene's case manager was recorded as having, "stated again how difficult it had been conducting Mental State assessments in the week previous, as Mr Sedgwick had prevented her from assessing her [the deceased] independently". Thus, in the lead up to Report 4 there is evidence of Mr Sedgwick: inhibiting Marlene's admission to hospital; denying community services access to her; threatening community services personnel; inhibiting her case manager conducting a Mental State assessment shortly before her attempted suicide. 2. The picture that Richard Sedgwick presents in his own evidence is quite different. It is a picture of him, almost alone, pointing out to community services staff the deficiencies in their care for Marlene. The contrasting picture from Report 4 is of a man possessively denying them access to Marlene, and placing her at risk from the consequences of undiagnosed fluctuations in her mental illness. 3. This part of Report 4 was based on the clinical files held by the Kaloh Centre and Justice Health, interviews and case conferences about Marlene. These reasons delete the names of the medical and other community services staff caring for Marlene. 4. Marlene was ultimately interviewed on 2 February 2009 by a consultant forensic psychiatrist and an accredited occupational therapist from the NSW Community Mental Health Service. The interview revealed that Marlene "admitted to feeling quite depressed for a while prior to her recent overdose. Although she was unsure of the exact duration of her depression she admitted "to having self-harm ideation present for a few days prior to the overdose". Marlene explained to her interviewers that Richard Sedgwick had discovered her and alerted authorities to her overdose. Again her loss of pride in her independence and bodily integrity was evident in this interview. Marlene explained to the interviewers that "I have difficulty dealing with my wheelchair, life is horrible". 5. But this interview also revealed Marlene's 2009 ambivalence to the relationship with Mr Sedgwick. Marlene mostly regarded it as a positive relationship but aspects of Mr Sedgwick's behaviour were very distressing to her: "Ms. Reis was visited by Mr. Sedgwick at least three times a week at her house. He had also been instrumental in taking her on leave, whilst she was in hospital. She described the relationship as 'good' and they did not have any arguments. Ms Reis started crying when talking about the problems identified between the community support services and her friend Mr Sedgwick. She said 'what can I do?' Her mother could help her with legal bills from the solicitors if required." 1. Her mental state examination at the time of these interviews showed her then insight that she had been previously been "hallucinating" about the mafia-like behaviour of SCIA managers and showed insight into her mental state shortly after her overdose. 2. Report 4 also contains a record of a multi-agency case conference planning Marlene's future held on 2 and 4 February 2009. This part of Report 4, which I also accept as accurate, illuminates the problems with which her case workers were wrestling. And Richard Sedgwick was one of those problems. 3. Marlene's multi-agency case conferences were attended by consultant psychiatrists, case workers, representatives of local community mental health services, the Benevolent Society and a registered nurse. 4. The case conference notes report upon what Marlene had said to the health professionals and reports upon their discussion. Some of what was recorded can be seen readily to be a record of representations that Marlene made, and some parts are the expression of professional judgments. 5. A number of conclusions may be inferred from this material. Marlene assessed Richard Sedgwick as a friend, and no more, to these health professionals in February 2009. She is recorded in the case conferences as having said the following about this subject: "Ms Reis had not identified anyone to fulfil the primary carer role under the Mental Health Act (2007). Ms Reis was clear that Mr Sedgwick was a friend; not carer, partner or advocate as he claimed and had appeared quite ambivalent at various times about their relationship." 1. The fact that Ms Reis did not identify anyone to fulfil the "primary carer" role under the Mental Health Act 2007 is significant in assessing her relationship with Richard Sedgwick. Under the Mental Health Act 2007, s 72A authorised medical officers or directors of community treatment to determine the "principal care provider" of a person who comes under the administration of the Act. A "principal care provider" is a person who is primarily responsible for providing support or care to the mentally ill person. A principal care provider has a wide variety of rights in relation to the mentally ill person, including rights: to request the person be detained in a declared mental health facility, to be notified of Mental Health Review Tribunal hearings, to appear before the Tribunal with its consent, to apply for the discharge of the involuntary patient and to have their views taken into account regarding certain sorts of invasive therapy and to receive a person into their care following their discharge from detention. Neither Marlene nor the medical professionals around her accepted Richard Sedgwick as the principal care provider for her. 2. Mr Sedgwick was an impediment to Marlene staying at the New Orleans Crescent accommodation along with the complexity of her own mental health needs. The administrative difficulties associated with Richard Sedgwick's behaviour compounded the difficulties of Marlene's case management. Much was reported in the case conference about Mr Sedgwick upon theme. A number of examples follow. SCIA had indicated to the case conference personnel that SCIA "would no longer be able to support Ms Reis in their accommodation due to the abusive and threatening behaviour by Mr Sedgwick in addition to her own complex mental health needs". The community support services also found it difficult to provide Marlene with health care and support, "As a result of Mr Sedgwick's obstructive and aggressive behaviour". Each of the reporting services remarked upon Mr Sedgwick's behaviour. They complained that he "had routinely refused them access to Ms Reis and had therefore been hampering the provision of care". The Maroubra Acute Care team had refused to assess Marlene "due to safety issues brought about by Mr Sedgwick". The Benevolent Society also reported "unresolved safety issues with Mr Sedgwick's aggressive behaviour requiring them to visit in pairs". The Benevolent Society assessed Mr Sedgwick's role as "more of a hindrance than a help. They openly questioned how Mr Sedgwick "could fulfil his self-title of carer, partner and advocate given his behaviour". 3. Finally, the operators of the New Orleans Crescent accommodation, SCIA, made clear that they could no longer accommodate Marlene, because of Richard Sedgwick related risks: "[They] made it very clear that they were no longer able to accommodate Ms Reis due to the increase of risk to staff and patients, due to Mr Sedgwick's aggressive behaviour, in addition to the stress that Ms Reis' suicide attempts had placed on staff and fellow residents. They did not feel able to manage this behaviour appropriately with the skills they possessed. Mr Sedgwick had not adhered to any limits set by their service in relation to appropriate behaviour concerning interactions with staff and residents whilst at the house. He had in fact attended the house when Ms Reis was in hospital and entered the other housemates' bedrooms. The services involved in the case conference appeared to understand the difficulties SCI had experienced and appeared to age that she should not return to the home. " 1. A number of options were then discussed for finding alternative accommodation for Marlene. Nothing seemed to be immediately available. 2. In the professional opinion at the conclusion of the report the consultant forensic psychiatrist and the accredited occupational therapist who signed it concluded about Ms Reis: "Ms Reis continues to exhibit symptoms consistent with dependant personality traits. She relies heavily on Mr Sedgwick to raise issues and concerns on her behalf. She has also allowed him to control her treatment to her detriment. … Ms Reis experiences significant psychological stress at the current time relating to her impending eviction from SCIA housing. She continues to be estranged from her daughter, which causes her considerable distress. She has inadequate social support, and her access to health care has been limited by her current support. Overall her level of functioning is significantly impaired." 1. The report then considered a Risk Analysis for Marlene, which again included the problem of Richard Sedgwick. "There is also a significant risk that she is not able to access the health care that she requires due to Mr Sedgwick's reported aggressive behaviour towards numerous health care providers. This places her mental and physical health at risk as the support she receives from formal agencies is jeopardised, she it at an increased risk of decompensation due to stress, and she has limited ability to be wholly compliant with treatment. Ms Reis has shown an inability to adhere to or carry out suggestions made by health care professionals and the Forensic Mental Health Review Tribunal in relation to limiting visiting hours and increasing her independence and control of her health care, and other life areas. Her risk of financial exploitation requires ongoing assessment." 1. I accept that the health professionals responsible for Report 4 had in these passages accurately assessed the relationship dynamic between Richard Sedgwick and Marlene. 2. New Orleans Crescent – The Defendant. The defendant's evidence also throws considerable light on Marlene's life at New Orleans Crescent. Some of the defendant's evidence about her visits to Marlene there accords with the SCIA evidence about difficulties Mr Sedgwick had been creating at the New Orleans Crescent premises. Marlene was openly critical of Mr Sedgwick to the defendant during the defendant's visits to Marlene at a period that I infer must have been when Marlene was at New Orleans Crescent. 3. I accept that Marlene said the following to the defendant. I also accept that Marlene's account of the events she described in these statements to the defendant was accurate. Marlene said to the defendant "I'm always having trouble with Richard, he's a troublemaker, he quarrels with my nurses." Marlene explained to the defendant that the guards that the defendant had observed outside the New Orleans Crescent property were there because they were checking on visitors, as "there was trouble with a nurse in the parking space, Richard is not allowed to visit me". 4. But not everything which the defendant said that Marlene conveyed to her can be accepted as accurate. I accept that Marlene said to the defendant, as the defendant says that Marlene did say, that "I take care of myself without help and go shopping, mostly by myself". To accept this implies that Marlene did not get any help from Mr Sedgwick. I do not accept that it is accurate. In my view Marlene continued to receive much help from Mr Sedgwick. Indeed it was because of the amount of help that Mr Sedgwick was providing that he felt some entitlement to control parts of her life and that he had expectations of a future relationship living together with her after her settlement. 5. I also accept that Marlene said to the defendant of Richard during this period "He's taken my money, about $8,000". But whether she was implying a theft of her money cannot readily be inferred from this. There is no reliable evidence before the court that might establish any misuse by Richard Sedgwick of any of Marlene's funds. Mr Sedgwick denies any such misuse. All the other evidence is hearsay and very non-specific. I do not infer Richard misused Marlene's funds. 6. Although the defendant did not think highly of Mr Sedgwick, in my judgment, she was not ill disposed towards him. She was cross-examined to suggest that her evidence was biased and would not admit that Mr Sedgwick had made any positive contribution to Marlene's well-being. But the defendant repelled that attack. She explained that on the positive side that Marlene had said to her that Mr Sedgwick had "helped with her shopping and visited her twice a week." The defendant explained, and I accept that she did not raise the controversial subject of Mr Sedgwick with Marlene much; she simply listened to Marlene's complaints and did not deliberately make conversation with her about Mr Sedgwick in a way that might cause trouble: "when she complains. I heard the complaints and I didn't react…". But she accepted that Mr Sedgwick was giving valuable assistance to Marlene, reporting that Marlene said to her: "He helps me with my shopping, he buys for me my lunch and we are eating lunch together." 7. The defendant also conceded, accurately in my view, and consistently with her acknowledgement of the positive assistance, Mr Sedgwick was giving to Marlene, that when it came to communicating important things to Marlene Richard Sedgwick was a natural conduit. The defendant chose to speak to and consult with Mr Sedgwick about the timing of communicating this distressing information to Marlene about her father's death in Poland. The defendant did not know of anyone other than Richard who had closer contact with Marlene. Although Marlene had a developing relationship with Mr Cave, at the time Marlene's father died I accept Mr Sedgwick was still seeing Marlene and attending to her needs more often. On this subject, I accept that Mr Sedgwick responded sensitively and said to the defendant "I don't think that we should tell her now because of the trauma which is currently going through; I think we should wait a few days and see how she is". I accept that Mr Sedgwick coordinated with the defendant and her husband about when they should all tell Marlene about her father's death. And indeed they all did tell her together at St George Hospital. The defendant also accepts that Mr Sedgwick telephoned her a number of times about Marlene and her problems and explained what he was doing for her. These conversations commonly took take place at the critical junctures in Marlene's life, when she was in hospital, sometimes just after a suicide attempt. It is understandable that at such a time that Mr Sedgwick would wish to share some of his anxiety about Marlene's condition with the defendant. And I find that he did. 8. The defendant and Richard Sedgwick came into direct conflict on one issue near the end of her time at New Orleans Crescent, which well illustrates the character of Richard's relationship with Marlene. The defendant gave evidence, which I accept, that Marlene had asked her to request Mr Sedgwick to return all Marlene's belongings. But I also accept that Mr Sedgwick responded to the defendant by explaining: that he had had this conversation with Marlene before; that he had the furniture in storage for two years but could not afford to keep it there; that Marlene had agreed that he, Mr Sedgwick, could get rid of his furniture and use her furniture, until they got a place together. Although the defendant does not remember this conversation, in my view it did take place, and I find that he did assert, contrary to the defendant's denials, that he would hold the furniture until they "got a place together." But in my view Mr Sedgwick was merely expressing his own views about his future with Marlene. But I also accept that Marlene had asked Mr Cave for assistance to go to court to get the furniture back. Marlene did not share Mr Sedgwick's view of their having a future together. But Mr Sedgwick would not accept this and simply ignored her dissent. It is difficult to explain Marlene's turning to Mr Cave to get her furniture back, any other way. 9. New Orleans Crescent – Other Witnesses. Apart from the parties, a number of the witnesses who gave oral evidence speak usefully of the New Orleans Crescent period in Marlene's life. These include for example, Mrs Brzeska, Mrs Kochanski, Mr Cave and Ms Luisa Silva. 10. I accept Mrs Brzeska's evidence that of a time that must have been towards the end of Marlene's years at New Orleans Crescent, that Mrs Brzeska had a conversation with Marlene in which Marlene said to her "I am fighting with Richard. He keeps asking for money. He won't give me my clothes or furniture. I had some expensive jewellery in the bank. Richard had a key to the security box. The jewellery is not there anymore. Richard is not allowed to come here anymore." I also accept that this represented Marlene's then attitude to her relationship with Richard Sedgwick. 11. Mrs Brzeska's evidence as to what Marlene said to her about Richard on this occasion is consistent with other evidence about Marlene's later years at New Orleans Crescent. Indeed, Mr Sedgwick's own account (below) of the conversation that he had with Marlene about receiving $200,000 from the proceeds of her personal injuries litigation fits the theme that Marlene mentions of Richard asking her for money. 12. Mrs Krystyna Kochanski also gave evidence from what I infer it was the New Orleans Crescent period in Marlene's life. I accept Mrs Kochanski's evidence about what Marlene had said to her as to the comparative status of Richard Sedgwick and Danial Cave in Marlene's life at this time. Marlene said to Mrs Kochanski, "I have a friend Richard. He has my furniture. He wants me to pay for him keeping it. He sometimes does a little shopping. The friends are not always friends. They show their true colours after a while." In contrast Marlene said to Mrs Kochanski about the same time in relation to Danial Cave, "My friend Danial looks more genuine. He lives in Newcastle. He visits me sometimes." 13. Mr Cave's evidence also covers this period. And is not consistent with Richard Sedgwick's evidence. It shows that Mr Cave can exaggerate. For example, he reported Marlene saying of Mr Sedgwick that "he never done nothing [for Marlene]" and "he never done anything for nothing" and again "you know he was always hand out for money, you know she paid for everything, you know, so". This is not correct. I accept Mr Sedgwick did contribute at his own expense to the joint activities of himself and Marlene. But Mr Cave was partly right that Mr Sedgwick did assist Marlene in spending her pension. 14. Mr Cave's account of the Richard-Marlene relationship in his evidence that overlaps with this period must be assessed cautiously. Mr Cave showed his distaste for Mr Sedgwick. He says that Mr Sedgwick was "just always asking for money and just always running her down" and that Marlene was "just a complete mess after the visit from him, and you know, depressed". I do not accept that Mr Sedgwick's relationship with Marlene was as negative as this. This evidence is coloured to a degree by Mr Cave's resentment of Mr Sedgwick's presence in Marlene's life. But Mr Cave's evidence is partly right. Mr Sedgwick did cause stress to Marlene. He occasioned her stress by his treatment of persons around her, including the professional personnel that were assigned to look after her. This conclusion in my view is well justified from the evidence from numerous sources as to his at times abusive and intrusive behaviour in the New Orleans Crescent facility. 15. Mr Cave was generally prepared to take the worst view of Mr Sedgwick's motives. Mr Sedgwick's actual motives were less damaging than Mr Cave inferred but they still show to a degree that I accept that Mr Sedgwick was controlling of Marlene in ways that she came to resent. Mr Cave said of Mr Sedgwick that "he wouldn't give her her furniture back when she did move out into a place of her own, wouldn't give her photographs back, wouldn't give her clothes back you know, he just held – you know, yeah, he just – yeah, just greedy person." I accept that Mr Sedgwick did take possession of many items and keep them. But his view was that he was holding these items in the context of a long-term relationship in which he would continue to hold them for her until her legal case settled and they could then use the settlement money to move into a house of their own together. This was Mr Sedgwick's genuine view of his and Marlene's future and was misconstrued by Mr Cave as greed. 16. But it was a wholly misconceived view of the future. It took no ultimate account of Marlene's own feelings and preferences. By the time she had moved to Anzac Parade in 2011 Marlene had moved on emotionally from Mr Sedgwick and did not have plans for a long-term relationship with him. His plans were one-sided and did not recognise this change in her. He was a single-minded person who, in my view, screened out signals inconsistent with his own world view. He simply failed to notice Marlene's emotional drift away from him. From her point of view the relationship, as a deep personal relationship, was over by some time in 2009-2010. 17. I accept that Mr Cave first visited Marlene at New Orleans Crescent in about 2009. That was when he was first able to get day leave from Morrisett Hospital. Mr Cave's evidence confirms that at this time Mr Sedgwick probably did visit Marlene "most of all." And he accepts that it is consistent with his evidence and his recollection of his own visitation that that Richard was "a frequent visitor" to Marlene. But Mr Cave says, and I accept, that he would visit Marlene at the group home in New Orleans Crescent, getting there at between about 8.00am or 9.00am and that he would generally visit once during the week and once on the weekend. I accept the frequency of Mr Cave's account of his visits. This means that Mr Sedgwick must not have visited every day, as he claims to have done, or if he did that he was not there all day. The evidence of their respective visiting can be reconciled. I infer that Marlene put some effort into keeping Mr Sedgwick and Mr Cave apart. She wanted to sustain her relationship with Mr Cave, because she valued it. But she also realised that she had practical dependence upon Mr Sedgwick, especially given what he had done for her in the past. This is confirmed by the correspondence, just before her death, which is considered below. 18. Mr Cave's evidence also explains that conflicts that Mr Sedgwick generated were part of the reason that Marlene had to leave New Orleans Crescent. His evidence, which I accept on this topic, well supports the occurrence of interpersonal conflicts between Richard Sedgwick and SCIA staff members, including about parking spaces there. Mr Cave discussed with Marlene why she was no longer able to stay at New Orleans Crescent. He said, and I accept as an accurate account of what Marlene said to him in response to his query, "on another occasion Marlene told me on the phone Richard was always arguing with the nurses and telling them what to do. He parks in their parking spot. He stands over them and abuses them." 19. One indicator of the cooling of Richard's relationship with Marlene at New Orleans Crescent was the way she managed telephone communications with Mr Sedgwick and with Mr Cave, when she was there. I accept Mr Cave's evidence, mostly of what Marlene had said to him, that Mr Sedgwick became difficult when he discovered that Marlene was speaking to Mr Cave. Marlene told Mr Cave that Mr Sedgwick would "get angry and abuse her" and "take the phone off and hang up" if he found that she was speaking to Mr Cave. I accept this happened. I also accept that Marlene tried to engineer communications with Mr Cave that did not conflict with Mr Sedgwick's visits, saying to Mr Cave, "don't ring tomorrow because Richard is coming. He will abuse me if he finds out that you're ringing." Although Mr Cave had known Marlene since about 2006. These conversations occurred after she had been at New Orleans Crescent for about two years, probably in about 2009. They again show Mr Sedgwick trying to control many parts of Marlene's life and using verbal abuse to confine her freedom to take pleasure from the company of others. 20. Ms Luisa Silva's evidence is largely consistent with the picture presented by other witnesses. She emphasised the closeness of Richard to Marlene and how attentive he was to her needs, both in the group home at New Orleans Crescent and in hospital. Ms Silva presented a different picture to other defendant's witnesses of Richard Sedgwick's interactions with the other residents at the group home: a picture of him being very considerate and assisting them. But I do not accept that that was the whole picture. There is no doubt that Richard Sedgwick was capable of considerable kindness and patience. The time he put in with Marlene amply demonstrates that. But Ms Silva, in my view, missed his more difficult side, which became the major source of conflict at New Orleans Crescent. Ms Silva admitted that her association with Marlene was at New Orleans Crescent and that she never went to Anzac Parade. She only staying in touch with Marlene by telephone after she left New Orleans Crescent. Ms Silva did not appear to notice a decline in the relationship with Mr Sedgwick and Marlene in the last year or so of New Orleans Crescent, but in my view that is what happened. 21. Finally, although Shantelle and Yolanda Sedgwick saw their father and Marlene together at what certainly included her time at New Orleans Crescent, their observations were not sufficiently frequent in my view to assist in deciding one way or the other whether they were de facto partners or not. 22. Statements about a Share of the Litigation – late 2008 to late 2009 23. But part of Mr Sedgwick's own case also shows that his relationship with Marlene was changing about midway through her time at New Orleans Crescent. I accept Mr Sedgwick's evidence that in late 2008 Marlene and he had the following conversation about the possible proceeds of her personal injuries claim: "Richard: Are you going to try and help me if you receive enough money? Marlene: What amount do you need? Richard: It's up to you to decide. Marlene: I want you to give me a figure. Richard: $100,000. Marlene: I will give you $300,000 as you deserve it for what you've done for me and I know that you'll always be with me." 1. This was followed about a year later, in late 2009, by another discussion between them, which modified this plan for sharing the proceeds of Marlene's personal injury litigation: Marlene: Richard I can only give you $200,000 as I have to give my mother $100,000. Richard: That's okay. I understand, she is your mother." 1. These two scenes can be interrogated a little. Why did these conversations take place at all? What had happened to Marlene's previous promises that she would use the proceeds of her litigation so that she and Richard could live together? Why are they talking about an exchange of money rather than sharing a house together? 2. These two exchanges were not the dreamy conversations of a couple speculating about their future. There was something more commercial about the plaintiff raising this subject at this time. In my view the fact that Richard Sedgwick initiated the first of these conversations, as he says he did, indicates that, quite apart from the motivation from his relationship with Marlene, by 2008-2009 he wanted to ensure some concrete financial reward from his efforts furthering the litigation on her behalf. Why should he bother to try and secure a financial benefit, which he could expect to enjoy anyway when they lived together in the future? The answer in my view is that by then he himself doubted that they would ever live together and he wanted to ensure that he would get something for all his continuing efforts. 3. But the context and the answers that Marlene gave to Richard in my view operated and she intended to operate as her assurance to Richard of what he could expect financially from the part of the relationship represented by their joint endeavours in the litigation. His efforts in that part of the relationship aimed at her future financial security had been considerable. I infer that Marlene was well aware of this and probably thought with justification it was perhaps unlikely that the litigation would be brought to a successful conclusion without Richard's continuing help. 4. That Richard Sedgwick even needed to initiate this conversation was an indication that he had growing uncertainty about Marlene's future financial commitment to him. Marlene could only have taken the enquiry the same way. Although Mr Sedgwick did not directly make his future receipt of money from her directly conditional upon his continuing to assist her generally and in particular with the litigation, that was implicit in his request. He was trying to approach the subject diplomatically: "are you going to try and help me". But they both understood that behind his words "if you receive enough money" was a mutual assumption that Mr Sedgwick would continue to do what he done since August 2005, to be the solicitors' point of contact for and the driver of the litigation for Marlene, so she could receive "enough money" , as well as her day to day helper. 5. The parties danced around a possible figure for Mr Sedgwick "What amount you need?", "It is up to you to decide." and "I want you to give me a figure.". This represented something not present in their earlier conversations: a mutual effort to courteously but clearly align their respective financial expectations from Richard's future efforts and especially in the litigation. That Marlene herself was conscious of the need for that alignment of expectations is to be inferred from her spontaneously returning to the subject at the end of 2009, when she confided in him that she could only give him $200,000 because she wanted to give $100,000 to her mother. 6. In my view Richard put considerable store on these two conversations in continuing his commitment to Marlene's welfare and the finalisation of her litigation. And I infer that Marlene well understood that was his outlook. Although caution is necessary in judicial assessment of evidence about conversations that are said to have taken place with deceased persons, there is a natural verisimilitude about these conversations. I accept that they occurred just as Mr Sedgwick says they did. 7. Difficulties at New Orleans Crescent – 2010 to 2011 8. Marlene received an eviction notice from the New Orleans Crescent Group Home in about February 2009. But on 24 February 2009 the Consumer, Trader and Tenancy Tribunal ("CTTT") ordered that Marlene be allowed to gain access to the Group House. The underlying problem appeared to be Richard Sedgwick's behaviour. The CTTT ordered on 24 February 2009 that Marlene be allowed to gain access to the Group House again. But a letter the following day from SCIA clearly shows that almost all SCIA's concerns about Marlene's re-admission to the house, apart from adherence to the No Smoking policy at the premises, concerned Richard Sedgwick's behaviour: his provoking complaints from SCIA staff and residents, his presence in the house, especially in the evening, his parking in other than visitor areas and his contact with other residents and other SCIA staff. 9. I accept that SCIA's complaints against Richard Sedgwick were justified. Mr Sedgwick's attitude, when confronted in cross-examination about complaints of this type, was to take no responsibility whatsoever for his behaviour. But rather he blamed others and especially one particular nurse about whom he complained and wrote to SCIA on a number of occasions on behalf of Marlene. But whatever the behaviour of this nurse, even if it was below professional standards, SCIA's complaints about Richard Sedgwick's behaviour went well beyond his dealings with a single member of staff. So many different health professionals formed the same view about him that they are unlikely all to be wrong. 10. On 16 February 2010 Marlene received notification from SCIA that her day emergency support services and after hours emergency support services were being terminated immediately and that she would be required to vacate the premises in April 2010. The support services were being withdrawn on grounds that the safety of the staff providing the services was considered to be at risk. 11. Marlene and Richard Sedgwick sought assistance from the Eastern Area Tenants Service. A hearing before the CTTT was scheduled for 15 March 2010. But the hearing was adjourned because Marlene attempted suicide again on 28 February 2010. This suicide attempt occurred in the context of increasing stressful factors in Marlene's life. Her case was coming close to hearing and she was conferring with BPC. The second eviction notice had arrived. And SCIA had deployed security guards around her house to prevent Mr Sedgwick from seeing her and to prevent him otherwise breaching the rules the SCIA had set for the Group House. 12. The CTTT ultimately ordered that Marlene had to vacate the Group Home by the end of November 2010. This CTTT order was the occasion for Marlene's move to Anzac Parade premises in early 2011. 13. After Marlene's suicide attempt she was released from the St George Hospital where she had been treated and transferred to the Kiloh Rehabilitation centre at the Prince of Wales Hospital, where she remained an in-patient for about 2 to 3 months. In April 2010 the Kiloh Centre social workers commenced their support for Marlene to apply for priority housing, away from the Group Home but somewhere in the local area. This ultimately resulted in the Anzac Parade premises being found. 14. Marlene came back to the Group Home for much of the second half of 2011. Issues with the nursing staff continued. But by then Marlene had insight into the fact that Richard Sedgwick was part of the problem of conflict with SCIA staff. He says, and I accept, that he assisted Marlene to lodge a complaint with the Australian Human Rights Commission against SCIA. But in October 2010 Marlene declined to instruct her lawyers, BPC, to proceed with the complaint. Richard Sedgwick was frustrated with this. But in my view it reflected a growing view on Marlene's part that she did not want anymore to fight battles that Richard Sedgwick had initiated. Anzac Parade – May to December 2011 1. Marlene left the Group Home in February 2011 and NSW Housing arranging new accommodation for her in premises in Anzac Parade Maroubra. I accept Richard Sedgwick's evidence that Marlene appeared happy in her new environment. 2. But Mr Sedgwick says that he suggested that she move into even better accommodation and that he had a conversation with her about that. I accept that this subject was discussed between them. But I do not accept that the conversation occurred in the manner that he says. 3. Richard claims that in February 2011 he had the following conversation with Marlene about the settlement of her action: "Richard said: You need your claim settled so that you can move into a more secure apartment which is warmer and with two bedrooms and bathroom as you won't survive another winter in this freeze box. Marlene: Only if you are coming with me. Richard: I've been with you for years and this is what we planned and you know I'll be with you." 1. I do not accept Richard's evidence of this conversation. Given the other evidence of the deterioration in their relationship by this time, such a conversation in which she says that she will move "only if you are coming with me" is improbable. 2. Richard Sedgwick's own evidence concedes the change in the relationship between himself and Marlene by the time she got to Anzac Parade. He did not help her to move into the new premises. Removalists did that. He concedes that at Anzac Parade he only visited her "a couple of days a week, give her space, at the time". When asked the question about Anzac Parade "can I suggest to you that [his lesser visitation at Anzac Parade] was because you thought the relationship wasn't as close as it once had been?" Significantly he answered, "but the relationship was good", really conceding in my view, that it was not as close as it had been before. 3. In my view Mr Sedgwick's almost daily visiting in the early years at New Orleans Crescent can be accepted. That was what led to conflict with other residents and staff. But in my view before she moved to Anzac Parade, the relationship was such that he was barely visiting her weekly. 4. I accept Marlene confided in Krystyna Varzonek about her relationship with both Richard Sedgwick and Danial Cave, when Marlene was at Anzac Parade. I accept Krystyna Varzonek's account that Marlene said to her about this period: "To my observation when Marlene was living at New Orleans Crescent, Mr Sedgwick was her friend who helped to her to get around sometimes but he was not a carer. When Marlene moved to Anzac Parade Marlene told me 'Richard doesn't visit me at all. I speak to him on the telephone sometimes'. In the last year of Marlene's life she told me 'Richard hasn't been in contact with me. He is not allowed to visit. Danial Cave comes to visit me and organises things for me. He helped me to buy second hand furniture, clean the house and do the garden. He comes twice per week to help with the shopping." 1. This evidence about the relative importance of Richard Sedgwick and Danial Cave in her life is consistent with the letters Marlene wrote shortly before her suicide. 2. Although Mr Cave was confined in Morrisett Hospital he was able to get day leave in 2011 after Marlene had moved into Anzac Parade. He did contribute to Marlene's daily support there, when Richard Sedgwick was far less frequently about. Indeed, Mr Cave claims that "I was the only one that sort of visited her." But I do not accept that he alone and not Richard Sedgwick visited her at Anzac Parade. I accept Mr Sedgwick's evidence that he did visit her at Anzac Parade. But in my view his visits were very infrequent. This is understandable, as many tensions had developed between Marlene and Richard by then over a number of issues. That is what I infer explains the lack of his being seen by Anzac Parade neighbours. I accept Mr Cave's evidence that he mowed the lawns, helped around the house, took her shopping, took her to see lawyers and even went to court with her to try and get furniture and other possessions back from Mr Sedgwick, an issue that by then seemed to become a central point of tension between her and Mr Sedgwick. 3. Marlene's increasing contact with Mr Cave when she was at Anzac Parade was unlikely to improve her relationship with Mr Sedgwick. This is not only because Mr Cave seemed to annoy Mr Sedgwick. But Mr Cave himself tended to take the worst view of Mr Sedgwick and to incline Marlene away from him. 4. Mr Cave gave an account to the Court of what Marlene had said to him about her relationship with Richard Sedgwick. Although the Court has expressed caution about aspects of Mr Cave's evidence, in my view he was an accurate reporter of Marlene's words about Richard on this particular subject. Marlene described to Mr Cave that she thought that Mr Sedgwick was taking advantage of her financially and that she had perhaps been vulnerable when she first met him. Mr Cave went on to say that Richard "was trying to convince her that she couldn't do without him, she was useless, hopeless because she was crippled, you know, in a wheelchair" and "that she couldn't do without him, for him to do stuff for her." I accept that Marlene did say these things to Mr Cave. But the reasons for her saying them were complex. To the extent that these words have Mr Sedgwick taking responsibility for looking after Marlene, they represent a true picture in my view, not only of what she said to Mr Cave but of what also actually happened, because he was indeed the person who consistently did the most for her, except at Anzac Parade and shortly before that. But the words also express Marlene's exasperation at how much control Mr Sedgwick had over her life; control, from which, in my view, she sought to escape through her closeness to Mr Cave especially at Anzac Parade. I accept Mr Cave's evidence that he had a sexual relationship with Marlene and was comfortable to describe himself as her "boyfriend". 5. Mrs Brzeska's evidence included accurate observations of Marlene at Anzac Parade that are consistent with the decline in Richard Sedgwick's relationship with Marlene by that time and with the greater importance of Danial Cave in her life. Mrs Brzeska spoke to Marlene during this period and remarks upon the lack of any mention of Richard on Marlene's part. I accept that Mrs Brzeska asked Marlene when she was at Anzac Parade, "who was helping you?" And I accept that she received the answer "the registered sister. I am happy that Richard is not coming." I accept that what Marlene said was almost an accurate account of Richard's visits to Anzac Parade. He did attend there but much less frequently than he had at New Orleans Crescent. 6. Mrs Kochanski provided shopping assistance to Marlene at Anzac Parade. In my view she and others were now replacing the services that Richard Sedgwick no longer provided with a frequency that he had done in the early years at New Orleans Crescent. 7. Mr James Butler did observe Mr Sedgwick at Anzac Parade from time to time, whilst Mr Butler was walking his dog. As earlier indicated Mr Butler was a credible witness. I accept he saw Mr Sedgwick from time to time, which is consistent with Mr Sedgwick visiting approximately weekly at Anzac Parade. Settling Marlene's Personal Injuries Claim – October 2011 1. Marlene's personal injuries claim included a claim for Richard Sedgwick's alleged attendant services. In November 2009 Marlene's lawyers filed an Amended Statement of Particulars for her in accordance with the rules of Court for the presentation of claims in the Common Law Division of this Court. I infer from the fact that she authorized these particulars to be supplied on her behalf under the Court's processes that Marlene was willing to give evidence in support of her claim. Those particulars included the following: "4. The Plaintiff has been provided with assistance by her friend Richard Sedgwick who has assisted her, since the time of the accident on the following basis: (a) Emotional assistance; (b) Transportation on outings; (c) Assistance with purchase of personal needs; (d) Attending to personal errands; (e) Transportation to and from external medical appointments; (f) Assistance with transfer from bed to wheelchair; (g) Laundry; (h) Meal preparation; (i) Assistance with administrative tasks. 5. The assistance provided to date by the Plaintiff's friend Mr Sedgwick has been provided at not less than 28 hours per week and a claim for gratuitous domestic assistance for the past is made at the average rate of $21.00 per hour". 1. This claim sets out what I accept as an accurate and convenient summary of what Marlene actually thought that the plaintiff had done for her. 2. Marlene's damages claim was due to be mediated in late 2011. Perhaps unsurprisingly, because of his close involvement in the commencement of the personal injury proceedings Mr Sedgwick had strong views about the quantum for which Marlene should settle her claim. The detail of this conflict does not matter to the issues for trial but Mr Sedgwick's view was that Marlene should settle the proceedings for no less than $2.5 million plus costs. On the other hand Marlene was receiving advice that she should compromise for far less than this. 3. Eventually in about September 2011 Marlene made clear to Mr Sedgwick that BPC had told her that Mr Sedgwick was "unacceptable to represent Marlene as her tutor in the proceedings at the mediation". The defendant became Marlene's tutor. But Richard Sedgwick still attended and stayed in the reception area of BPC's offices during most of the mediation. 4. Like all mediations the result seems to have been a compromise. But afterwards Richard Sedgwick reinforced Marlene's anxiety that she had not received enough from the settlement. The settlement was ultimately approved by the Court in an amount of $1.6 million plus costs as agreed or assessed less various deductions on account of out of pocket expenses. I accept Mr Sedgwick's evidence that Marlene felt that she had been under great pressure to reach the settlement. But of course that is not to say the settlement was not objectively fair as between the parties to those proceedings. But to Mr Sedgwick it remained unacceptable and unfair. 5. After the approval of the settlement I accept Mr Sedgwick's evidence that Marlene turned to him and said "you are the best friend I have ever had". Marlene here described their relationship accurately, in my view, as one of friendship. Marlene's Death – December 2011 1. Marlene wrote several letters just before her death. Two of them were respectively to her lawyers and to Justice Hoeben of this Court. Two of them were to Richard Sedgwick and to Danial Cave. 2. The contrast in emotional tone between the letters Marlene wrote to Richard Sedgwick and to Danial Cave is unmistakable. Her letter to Richard was polite and thankful for what he had done for her. But her letter to Danial rises to a greater intensity of feeling. Her letter to Danial demonstrated a degree of personal devotion to him that the letter to Richard lacks. 3. The letter to Richard provided as follows: "Dear Richard, I just like to say a few words for the very last time…. -First of all I like to thank you for all the help. As you can imagine I simply had enough!!! At least this way I protected my mum and my sister whom I love very much and no cunt can get their hands on my money -So, I guess this is good-bye. Take care and look after yourself….. -I include a copy of letter I wrote to poulden. I've changed it a little bit….. -So, once again, all the very best for the future. Love Marlene." 1. Her letter to Danial Cave was the following: "Dearest Danial, As you know English is not my first language and I will probably make a few mistakes but I'll do my very best. -To begin, I like to apologise. I am very very sorry. It wasn't an easy decision but I couldn't see the way out. I didn't have a way out…. I am not selfish but I really couldn't go on any more. I hope you understand. It all got to me in the end…. -With this letter I include copy of letter I wrote to "justice" Hoeban (sic). I think it explains everything….. -You know I love you very, very much. I hope you forgive me and won't hold this against me. All I can say now is that I wish you all the very best for the future. Take care and look after yourself. Remember the good times we had. I'll be always with you. One day we meet again. -And now? I have to say good-bye…. -Photo's I included, please put them all in the album. If you ever find time to go to the city. Please give them to my daughter Tania. (you can find where she works on 'face-book') If it is possible at all try to get all my album and give them to her. -Thank you for everything Danial you will always have a special place in my heart for you. I love you. Marlene" 1. The contrast between the two letters bears closer analysis. Danial is addressed as "Dearest" and Richard as "Dear". Marlene declares to Danial and not to Richard "You know I love you very much". Marlene seeks only Danial's forgiveness for her planned act of self-harm, "I hope you forgive me and won't hold this against me". She declares only to Danial "I will always be with you. One day we meet again". And she entrusts only to Danial, not to Richard, the photograph albums that she wishes to be given to her daughter, Tania. She signs off only to Danial, "You always have a special place in my heart – I love you". 2. But there is no doubt Marlene had strong affection for Richard. She signs the letter to him "Love Marlene" and in her separate letter to Justice Hoeben she refers to Richard and Danial together. Describing the reaction that she anticipates after her death among those around her she says to his Honour, "I left in a lot of pain, my family, my daughter and the men I love" [emphasis added]. Her affection for Danial was not exclusive. 3. Her letters to her lawyer and to Justice Hoeben were partly complaints about the legal system and the progress and outcome of her case. But they brimmed with her anxiety about her loss of independence, the loss of her past life, the bleakness of her future and how much of her settlement had been consumed in legal fees. She describes herself this way in her letter to the Court "I was a beautiful, beautiful woman. I had the best of everything. But back then it wasn't just about me…..If anybody asked me for help I never said no". These letters reveal Marlene's profound sense of loss as a result of her mental illness, the killing of Michael and her accident. An appreciation of this is an important platform for trying to understand what happened in the last six years of her life from 2005 to 2011. I infer that Mr Cave still made her feel good about herself despite her heavy loss. Mr Sedgwick did not. Something of this difference in their outlook came through as they each gave evidence. 4. Mr Cave did not attend Marlene's funeral. This was not because he did not care for her as much as she did to him. Rather, he says, and I accept, that he spoke to Marlene's aunt and they agreed it would be best for him not to turn up "because Richard was going to be there, and he was going to cause trouble you know" Mr Cave inferred this from something Richard had said. According to Mr Cave Richard had "mentioned that he was going to cause trouble [if Mr Cave came to the funeral]". The Succession Act Claim - Applicable Legal Principles De Facto Relationships 1. The plaintiff claims to have been a de facto spouse of Marlene at the time of her death or to have been living in a close personal relationship with her. These reasons find that he was in neither a de facto relationship or living in a close personal relationship with her death. "Eligible Person" Succession Act, s 57 1. For an order for provision to be made under Succession Act s 59 in favour of an applicant, the Court must be satisfied that the applicant is an "eligible person" within Succession Act, s 57. Richard Sedgwick claims to be an "eligible person". Succession Act, s 57 provides:- "Section 57 Eligible persons (1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person: (a) a person who was the wife or husband of the deceased person at the time of the deceased person's death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death, (c) a child of the deceased person, (d) a former wife or husband of the deceased person, (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death." 1. Richard claims to qualify as an eligible person under Succession Act, s 57(1)(b). Special considerations are applicable to persons claiming eligibility under Succession Act, s 57 (1)(f). The Court finds here that Richard does not qualify under Succession Act s 57(1)(b). The alternative avenues to qualification as an "eligible person" under s 57(1)(f) are considered later. 2. For the purposes of Succession Act, s 57 "de facto relationship" is defined in Interpretation Act 1987, s 21C which provides as follows:- "(1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or (b) the person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. (4) Meaning of "related by family" For the purposes of subsection (2), 2 persons are "related by family" if: (a) one is the child (including an adopted child) of the other, or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or (c) they have a parent in common (including an adoptive parent of either or both of them). (5) Subsection (4) applies: (a) even if an adoption has been declared void or is of no effect, and (b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children. (6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. " 1. Interpretation Act 1987, s 21C(3) spells out: that no finding in respect of any of the matters in the sub-section is to be regarded as necessary for the existence of a de facto relationship; and further, that a Court determining whether a de facto relationship exists is to have regard to all the circumstances of the relationship and is entitled to have regard to such matters and to attach such weight to any such matter as may seem appropriate to the Court in the circumstances. 2. In the alternative the plaintiff advances his claim on the basis of Succession Act, s 57(1)(e) and (f), which provisions raise special considerations. Close Personal Relationship – Succession Act, s 57(1)(f) 1. Richard Sedgwick alternatively claims he and Marlene had a Succession Act, s 57(1)(f) "close personal relationship", other than a de facto relationship. The elements of what qualifies as a "close personal relationship" are not defined in the Succession Act itself. 2. In the absence of a statutory definition of the concept of "close personal relationship" case law has developed, which interprets predecessor legislation In Dridi v Fillmore [2001] NSWSC 319 at [102]-[104] Macready AsJ considered the elements that need to be present in order for two people to be considered to be in a "close personal relationship" as then defined under a similarly structured but slightly differently worded Property (Relationships) Act, s 5(1), which then used language "a close personal relationship between two adult persons…living together, one of whom provides the other with domestic support and personal care". In Dridi v Fillmore, Macready AsJ said: "I have earlier referred to aspects of what the Act describes as a "close personal relationship". It has to be between two adult persons who are "living together". Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care". So far as the first requirement is concerned we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together. In the present case this is not important, as it seems that the parties ate together when they were both at home. The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg shopping for both parties, washing clothes etc." 1. There are differences between the statutory definition of "close personal relationship" between Property (Relationships) Act, s 5(1) and Succession Act, s 57(1)(f). And the concept of "living in a close personal relationship" has been considered from time to time both at first instance and on appeal: Sharpless v McKibbin [2007] NSWSC 1498 at [71] per Brereton J; Harkness v Harkness [2011] NSWSC 1421 at [41]-[42], [46]-[47], [49]; Fung v Ye [2007] NSWCA 115 at [30] per Young J in Eq with whom Tobias JA and Bell J agreed; Bar-Mordecai v Hillston [2004] NSWCA 65 at [90]. But because of the Court's findings below they are not of central significance in this case. 2. A common point in all the challenges to the plaintiff's alternative claims is his and Marlene's living arrangements. The point arises in deciding: not only, whether in his claimed de facto relationship they had "common residence" (Interpretation Act, s 21C(3)(b)); but whether in his claim of partial dependence he "was a member of a household of which the deceased person was a member" (Succession Act, s 57(1)(e)(ii)); and whether the plaintiff was "a person with whom [Marlene] was living in a close personal relationship" (Succession Act, s 57(1)(f)). 3. The Succession Act component of this case ultimately turns on whether Mr Sedgwick is an "eligible person". As the Court find that he was not, there is no need to consider legal principles generally about the Court's exercise of discretion in the event that Mr Sedgwick were to be found an eligible person. But it is useful nevertheless to set out some of the facts that would be relevant to the exercise of that discretion. The Succession Act Claim – the Plaintiff and Other Beneficiaries Mr Sedgwick 1. Mr Sedgwick is in poor health and has genuine financial needs. He is currently 73 years of age and unemployed. 2. Mr Sedgwick suffers a number of medical problems. He needed dentures since the 1960s and must have them regularly replaced. He suffers from osteoarthritis in his knees which is progressively deteriorating and causes pain when he walks. He has not had knee replacement surgery. He had testicular cancer and cancer of the bladder in 1978. He suffered an injury to the discs of his back in 1980. In 1990 he had a mini stroke and underwent quadruple by-pass heart surgery later that year. In 1991 he was diagnosed with cancer in one of his kidneys which was removed. In 2010 he had a bleeding duodenal ulcer. In 2013 he was suffering a bowel obstruction, which was then said to require surgery. 3. He takes daily anti-coagulant medicine and has had skin grafts which require regular revision. He undergoes physiotherapy twice a week for his back and to help him walk. 4. Mr Sedgwick has pressing financial needs. He worked as a garbage collector and wayfarer until approximately 1986, when he ruptured two discs in his back and thereafter unable to work. He is divorced with two adult children and now has two grandchildren. He receives a pension of $576 per fortnight but says that he needs a further $200 per week to survive as his costs of living have increased. I accept that he does not have any assets except for a second hand car valued at approximately $2,000, does not have any superannuation, health insurance, life insurance or other property. 5. Mr Sedgwick's monthly expenses for food, groceries, clothing, motor vehicle fuel, motor vehicle third party insurance, motor vehicle maintenance, rent, phone, utilities, medical expenses, dining out, and entertainment and birthdays total $1,598. Some of these expenses are met with subsidies from Mr Sedgwick's daughters. His utilities and rates are all covered by the Housing Commission. His pharmaceutical expenses are subsidised by the Government. But even with these subsidies his expenditure is approximately $800 per fortnight and his pension a little under $600 per fortnight, thus his income falls short of his expenditure by a little over $200 a week. I accept that his expenses have increased since he swore his principal affidavit in May 2013. Their increase is likely to have outstripped his increases in his pension. 6. Mr Sedgwick has been living under financial pressure for some time. He naturally would like to be able to take his grandchildren on outings but is currently unable to do so due to his limited finances. He owns a 1989 Toyota motor vehicle which needs repairs of approximately $6,000 to $7,000. He would like to have his dentures replaced which would cost approximately $4,000. I accept he has not had a holiday for ten years. In part the lack of any holiday for him was the product of the time commitments involved in the care he gave Marlene. But it may have been beyond his financial reach anyway. The cost of such a holiday would be approximately $6,000. He also wants to return to Marlene's birth place in Poland and give family tree documents to her family, a trip which he budgets would cost about $15,000. He does not have sufficient funds to pay for his own funeral costs which he estimates would be $10,000. Marlene's Mother and Sister, Anna and Kamila 1. Both Marlene's mother and sister have substantial claims on her testamentary bounty. Marlene herself recognized this in her Succession Act, s 100 statement. She said the following about them in her s 100 statement: "Dealing firstly with my mother and sister I say that it is my understanding that they live in relevant penury and do not have any substantial income or assets or money at all. In that respect my mother owns a small apartment and lives in Lublin, a town in Poland. She relies for income on an aged pension which is not significant. I do not believe my mother has the necessary funds in order to enjoy any of the normal pleasures of life for example taking holidays, buying gifts as and when she should and providing some pleasantries in her own life. As to my sister I say that her position is that she does not own any property at all and that she lives in my mother's apartment. She also has a modest income and lives a very modest life in terms of expenditure. She is presently unemployed at the time of my making this Statement. She relies therefore on my mother for assistance as to her housing. I have not been able to make any decent contributions to their welfare and wish by the provisions of my Will to do so and consequently have left to each of my mother and sister one third of my estate." 1. Both Anna and Kamila gave affidavit evidence that showed their respective financial needs. Their affidavits were sworn in Poland. They were not cross-examined. 2. Anna Krzewski-Kzieska is a pensioner, who is now about 80 years of age. Her husband Tomas died in 2011. She lives in Lublin with her daughter Kamila who is now about 48. Together they live in a small two bedroom flat with a surface area of 42 square meters, situated close to an industrial area and a major traffic artery. The flat has not been renovated since they moved into it in the mid 1960's. She says that a lot of work needs to be done to the unit to make it more comfortable. It needs: the complete replacement of its gas and water installations and of windows, doors and floors, and a bathroom fittings; the full repainting of the flat; and, replacing of all its furniture with new furniture. 3. Anna estimates that the flat is valued at 120,000 PLN (zloty), estimated in in evidence to be worth about AUD$40,000. She has a bank account with 1,800 PLN (about AUD$600), furniture worth 2000 PLN and clothing worth 1,500 PLN. Anna spent her life savings in 2006 on a flight to Sydney in order to visit Marlene. She does not have any electronic goods, or valuables. Nor does she have any superannuation. As a retired person in Poland she receives a pension from the Polish Government of 1,530 PLN per month (about AUD$505 per month). 4. Anna says that her pension is not enough for both mother and daughter to meet their living expenses. Anna's daughter, Kamila, is unemployed. Anna is not confident Kamila will be able to obtain work in the future. Anna says that Lublin has high unemployment and both mother and daughter wish to move to Warsaw where Anna hopes Kamila will be more likely to find work. But the cost of a suitable apartment for them in Warsaw is between 500,000 and 1,000,000 PLN (between AUD$170,000 and AUD$340,000). 5. Anna and Kamila's joint monthly expenses on gas, electricity, telephone, TV, food, toiletries, cleaning agents, cosmetics, clothes and medicines fully account for the pension Anna receives, namely 1,530 PLN per month. Anna suffers from chronic hypertension, high blood pressure, arthritis and has chest pains. Neither Anna nor Kamila has sufficient spare disposable income to go to the cinema, theatre or opera or to buy books, to pay for insurance or for health care, private doctors or dentistry. Anna says she would like to be in a financial position to pay for additional monthly non-discretionary expenses. Although these expenses are non-discretionary, she now simply cannot expend because she does not have sufficient income. These include new shoes and clothes, the weatherproofing of windows, painting, repairs, a private doctor and dentist, a hairdresser, cosmetics, local travel, dry cleaning and additional food. All these possible non-discretionary expenses amount to AUD$2,800 per month. 6. In addition to these non-discretionary expenses both Anna and Kamila would like to be able to pay for additional discretionary items, such as holidays of two weeks per year, a sanitarium for Anna's health, cultural entertainment such as concerts, theatre or cinema, and to have books and magazines and a computer. Anna estimates that the annual cost of these discretionary items is AUD$3,550. 7. Kamila's affidavit tells a similar story. She confirms her present situation, living with her mother in a two bedroom flat in Lublin. She confirms the state and financial circumstances of their joint household and that she does not have any substantial assets of her own. She does not have any electronic goods, any valuables or any superannuation and that she is unemployed and not confident of obtaining work. I accept all this evidence from both Anna and Kamila. Marlene's Daughter Tania 1. Marlene's daughter Tania also has substantial claims on her testamentary bounty. 2. After Marlene and Michael Reis separated Tania lived with her father until his death in September 2002. Tania says, and I accept, that until her father's death she had close and loving relationship with her mother. She would visit her mother most weekends. She says, and I accept, they spent much time together shopping, having dinner and doing other typical mother-daughter activities. She says that she enjoyed this time with her mother. 3. Tania acknowledges that she was "very upset and angry" with Marlene for killing her father. Tania received professional counseling between 2005 and 2008 to deal with the effect on her of the killing and for her to deal with her relationship with her mother. 4. Tania found the circumstance of her father's death to be "extremely distressing". As a result she was unwilling to speak with Marlene. She explains in evidence "I did not yet feel ready to do so". Marlene tried on many occasions to contact Tania by telephone and by letter from 2003. She received Christmas cards and letters from Marlene. But the killing took a heavy toll on Tania and it seems that attempting personal contact with the deceased that she found too confronting that right up until Marlene's death. 5. Following her father's death Tania first lived in a four bedroom home with her paternal aunt, Christine Reis in Normanhurst in northern Sydney between September 2002 and September 2004. Then after September 2004 and until she began to live independently, Tania moved to the two bedroom apartment of Jessica Farrah, Michael's half-sister in Rockdale. The Family Court of Australia appointed Christine and Jessica to be joint guardians for Tania after her father's death. 6. Tania remembers writing to Marlene in late 2008 giving her mother general information about her living and personal situation. Tania continued to receive occasional voice mail messages from Marlene after completing her High School Certificate. Although Tania continued to find it too distressing to speak to Marlene, she nevertheless took some comfort from receiving her messages, which expressed Marlene's love for Tania. 7. Included with Marlene's BPC legal papers concerning the drafting of her will was a signed Succession Act, s 100 statement. Marlene explained in it why she had provided in her will for her mother and her sister in Poland, because of their poor financial circumstances in apparent anticipation of a possible claim by Tania against her estate. Tania has not made such a claim. Marlene's s 100 statement did not mention the plaintiff. 8. In her s 100 statement Marlene weighs the testamentary claims upon her, in a sensible way among her blood relatives but without considering Richard Sedgwick. Understandably in a mother, her principal anxiety was the poor quality of her relationship with Tania. This is what she said about Tania: "I do not at this point of time believe that I have any mental illness except my deep regrets as to the events that led to the death of her father and how they have transpired. I suffer from depression including my sense of loss of my daughter." 1. For reasons which are difficult to fathom it was neither the police nor a counselor who informed Tania of her mother's death at the end of 2011 but a solicitor from BPC. Tania was upset at her mother's death and attended her funeral. After her mother's death Tania has received some correspondence from BPC about Marlene's estate and personal belongings. 2. Tania has had no contact with Anna or Kamila in Poland and does not speak Polish. 3. Tania's education and employment history shows a young woman motivated to complete her secondary education, who has commenced tertiary education and who remains in close to full time employment. 4. The quality of Tania's relationship with her mother was tested in the proceedings. Mr Sedgwick said he was not aware of Tania sending Marlene cards or any other communication for her birthday. His case contains a number of assertions that Tania did not take up opportunities to reconcile with her mother. There is no doubt Tania did not take up such opportunities. But in my view Mr Sedgwick's case overlooks the gravity of what Marlene had done and the depth of Tania's understandable reaction to it. 5. I accept Richard Sedgwick's evidence that Marlene reported distress to him about her failure to be able to give Tania her side of the story about the death of Michael. I accept in this context that Marlene said to Richard, "Tania does not care about me anymore. I am going to stop calling her. It is too distressing for me". But in this case Tania's estrangement from a mother who killed her father, is not something which in my view weighs greatly against her, when her claim on Marlene's testamentary bounty is being considered. 6. Mr Sedgwick is not a reliable judge of Tania. His evidence about Tania's presence at the funeral and his encouraging her to view the body and to sit in a particular part of the church with him was to him merely pointing out to Tania what was expected of a daughter. Mr Sedgwick invited Tania and her girlfriend to sit in the front row of the memorial service with himself and his daughter. She did not and he observed "to my disappointment she declined to join us". But in my view his conduct on this occasion was consistent with much of his conduct in Marlene's life: he presumed to tell others how they should be behaving in circumstances where he had little insight into their feelings. The Succession Act Claim - Analysis De Facto Relationship? 1. Richard Sedgwick submits that he was in a de facto relationship with Marlene at the time of her death. He points to a number of indicia of the relationship based on the statutory definition which was said to support this conclusion. But given the Court's findings, analysis of those indicia in my view does not support his contention. The parties referred to the Court to other authorities said to be of assistance in deciding this issue but the detailed narrative of findings above indicates that this case should be decided on its own rather unusual facts. 2. Duration of the Relationship. Richard says that the relationship lasted from August 2002 until the deceased's death in December 2011. This submission overstates the position. The relationship had deteriorated significantly in the last few years at New Orleans Crescent and was a bare friendship when Marlene was living at Anzac Parade. There is compelling evidence that by then Marlene had another relationship with a third party, which Richard accepts is inconsistent with what he understood his relationship with Marlene to be. In my view the relationship was badly fracturing in 2009 and could in an objective sense be seen as over in 2010. 3. Common Residence. Richard submits that there was no practical opportunity from the time he met Marlene right up until the time of her death where it would have been possible to have lived together. There is some force in this submission. The Court accepts that Marlene and Richard did discuss the prospect of their living together when her personal injury claim settled as the Court has found. Until some time in 2009 their relationship should be characterized as one in which they both intended to move in together if they physically could. But from 2010 on if Marlene had a choice of moving in to live with Richard Sedgwick or Danial Cave, in my view she would have chosen the latter. And Richard made no serious attempt to try and co-habit with Marlene when she was at Anzac Parade. 4. A Sexual Relationship. The Court accepts that in the first month of Richard's relationship with Marlene their relationship was sexual. But this was only for the period of a month. I do not accept that Richard and Marlene had a sexual relationship after that. But I do accept Mr Cave's evidence that he had a sexual relationship with Marlene in the last few years of her life. 5. Financial Dependence, Interdependence and Support. Mr Sedgwick's financial support for Marlene was regular. Particularly before she had secured a pension because of her mental illness. But as time went on in my view that financial support declined. Mr Sedgwick could ill afford it and Marlene had her own income. That is not to say that from time to time Mr Sedgwick did not make the small cash contributions to Marlene's outgoings that he claims. But the reality was that he had his pension and she had hers and their respective expenditure was largely independent. Although he did assist her to spend her pension, I do not regard Richard's assistance to Marlene in obtaining a pension as demonstrating financial interdependence in itself. But he did provide practical subsidies to Marlene, such as storing Marlene's furniture. Although this weighs only slightly in the balance for reasons that will be demonstrated below. Mr Sedgwick did not pay any of Marlene's legal fees. He acted as more in the nature of a go-between for BPC and Marlene. 6. Ownership, Use and Acquisition of Property. Mr Sedgwick claims that there was joint use of property because Marlene allowed him to use her furniture and they talked about the acquisition of a property in which they would ultimately live once Marlene's personal injuries claim was resolved. But by 2010-2011 Mr Sedgwick's possession of Marlene's furniture had become a point of contention between them. Mr Cave was assisting Marlene to get the furniture back by legal process, an act which in my view was powerfully symbolic of an attitude on Marlene's part that she did not see a future together with Richard Sedgwick. The mutual objective of ultimately acquiring a property together with any settlement proceeds had dissolved. Why would they fight about furniture if it was accepted that it was all to go into a jointly owned house? 7. Mutual Commitment to a Shared Life. I accept that until about 2008 Marlene and Richard did mutually express their desire to live a shared life once Marlene was able to do so. But that commitment disappeared when the quality of their relationship declined in 2009-2010. 8. Care and Support of Children. Richard and Marlene had no children together. They both had adult children to previous relationships. 9. Performance of Household Duties. I accept that in the early years Mr Sedgwick did arrange to take Marlene out for banking and shopping, for example at Moorong. He was attentive also when Anna was visiting Marlene, to make her time with her mother as enjoyable as possible. He continued to do little tasks for her, including accompanying her to medical and legal appointments. But beyond 2009 these activities can readily be explained either as simple acts of friendship or motivated in part by the promise that I find was made that Richard would receive $200,000 from any settlement that was received. 10. Reputation and Public Aspects of the Relationship. Particularly in the early years Mr Sedgwick was sufficiently closely publicly involved in Marlene's life that their relationship did present to the outside world as close. Mr Sedgwick's visits to Mulawa and Bunya, his accompanying her to Mental Health Review Tribunal hearings, his giving instructions to medical staff, his appearance at the Family Court as Marlene's case guardian, his dealings with BPC, his assistance at the time that Anna was in Sydney, were all events up to 2007 that were public expressions consistent with a de facto relationship. 11. But once Marlene had been in New Orleans Crescent for a few years what had been public demonstrations of something like a de facto relationship started to become public demonstrations of a dysfunctional relationship. Mr Sedgwick's dealings with other residents and staff at New Orleans Crescent, his contact with Marlene and his complaints about the care of Marlene and the commencement of legal action because of her eviction from the New Orleans Crescent group home are more evidence of his possessiveness than the public aspects of a mutual relationship. In 2009 and 2010 Marlene was less and less supportive of what Richard was doing on her behalf. Living in a Close Personal Relationship? 1. The same analysis shows that Mr Sedgwick was not living in a close personal relationship with Marlene at the time of her death. Their relationship had subsided. Her principal affections were by then in Mr Cave's direction. And Mr Sedgwick was not seriously even trying to co-habit with her for any time at Anzac Parade. The Contract, Estoppel and Restitution Claims 1. The plaintiff pleads his case in contract, estoppel and restitution. The contract and estoppel cases are based upon two main groups of statements that Marlene made to Richard Sedgwick: the first group about their eventually living together and the second group about his receiving $200,000 from the settlement of her litigation. The Court has found Marlene did make all these statements. But in this section, the Court concludes that none of them resulted in any contract being made between Marlene and Richard. And the plaintiff's claim in estoppel succeeds only with respect to the second group of statements. There was a third group of statements pleaded as having been made in February 2011, but the Court has found that no such statements were made at this time. Only the first two groups of statements are in issue. 2. As to the first group of statements, Marlene did make statements from 2005 to 2007, as pleaded, to the effect that if she received money from the proceedings that the plaintiff could come and live with her in the same house together, which they would buy, together with the proceeds of the litigation. But the Court has found that these were just discussions between a couple speaking affectionately to one another about a possible future together. They were discussions in an entirely domestic context that were not intended to lead to contractual relations: Balfour v Balfour [1919] 2 KB 571 and Ermogenous v Greek Orthodox Community [2002] HCA 8; (2002) 209 CLR 95. 3. As to the second group of statements, the Court has found that Marlene made statements in late 2008 and late 2009 to the effect that Richard would receive $300,000, changed a year later to $200,000, from the proceeds of any settlement or other resolution of Marlene's litigation. But neither party in this second group of statements sufficiently expressly stipulated their mutual promises such that the Court could infer that a formal binding agreement was made between them. For example, exactly what Mr Sedgwick was going to do in exchange for the $200,000 was ill-defined and not capable in my view of comprising a contractual promise on his part. The domestic context makes such lack of clear definition understandable. But this does not preclude an equitable estoppel in the same context. 4. The Estoppel Claim 5. The plaintiff also pleads his case in equitable estoppel arising out of the same two groups of statements. The plaintiff's case is based upon doctrines of estoppel defined by the High Court in Walton's Stores (Interstate) Limited v Maher (1988) 164 CLR 387; HCA 7. The applicable law may be concisely stated. To establish an equitable estoppel a plaintiff must prove: (1) the plaintiff assumed or expected that a particular legal relationship would exist with the defendant and the defendant would not be free to withdraw from that relationship, (2) the defendant induced the plaintiff to adopt the assumption or expectation, (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation, (4) the defendant knew or intended him to do so, (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled, and (6) the defendant has failed to act to avoid that detriment: Walton's Stores at 428 – 429 per Brennan J, see also Sidhu v Van Dyke (2005) 251 CLR 505; [2014] HCA 19 ("Sidhu"). 6. The pleaded case in estoppel is also based on the same two groups of statements as the case in contract. The Court has found that these two groups of statements were made. But in the Court's narrative of findings above the Court has found that the plaintiff relied on and was intended to rely upon only the second group of statements: Marlene's 2008-2009 statements about receiving the $200,000 from the proceeds of her litigation. The first group of statements about living together was neither intended to be relied upon nor relied upon by the plaintiff. 7. Marlene did first make a statement about Richard receiving $300,000. But this statement was clearly modified, such that the plaintiff could not on any continuing basis have thought that he would receive more than $200,000 for continuing to attend upon Marlene and to assist her with her claim. 8. In my view, on the findings made in the narrative section of these reasons this estoppel, based upon the second group of statements, is made out. The plaintiff did hold the assumption or expectation that he would receive $200,000 from any settlement proceeds from Marlene's litigation. Marlene induced him to hold that assumption through her statements to that effect in 2008 and 2009. In my view Richard Sedgwick did act in reliance upon that assumption or expectation after it was induced, by his continuing to attend on Marlene and by continuing to assist her with her litigation. And I infer that Marlene intended him to do so. The litigation was brought to finality and a settlement achieved albeit without Richard's direct involvement in the end. But he was fully involved in assisting with the litigation until well into 2011. The detriment suffered by Mr Sedgwick will be irreversible in my view unless his expectation is fulfilled. Mr Sedgwick made a continuing choice to devote himself both to Marlene's daily needs and to assisting in her litigation that has resulted from his adoption of the assumption or expectation since 2008 and as modified in 2009. The detriment in this case is the failure to pay the $200,000 to Mr Sedgwick and can be assessed in money terms. This can only be avoided by now ordering that payment to occur. 9. The defendant took issue with Mr Sedgwick's claim of reliance upon this assumption or expectation in directing his conduct. The defendant submits that Mr Sedgwick would have continued in any event to devote himself to Marlene's welfare and to her litigation had she not made her statement about the $200,000. But this argument misses the importance of the change that the Court has found occurred in Richard and Marlene's relationship from about 2009. One reason in my view that Richard Sedgwick was raising the subject of the proceeds from the settlement was that he was becoming uncertain about the future of the relationship. And there were many objective reasons why he should have been uncertain: Marlene was very disquieted by his behaviour at New Orleans Crescent and she was conducting a relationship with Mr Cave that was far closer than she was letting on to Mr Sedgwick. Had Marlene not made the statement to Mr Sedgwick that she did about the $300,000 and then the $200,000 in response to his request, it is not at all difficult to infer, as I do, that imperceptive though Mr Sedgwick was in many ways, he would have soon questioned his further commitment to Marlene and fallen out with her for her perceived ingratitude. This satisfied the necessary requirement that Mr Sedgwick acted on the faith of his assumption or expectation of showing $200,000 of the proceeds of the litigation: see Sidhu at [91], per Gageler J. The Claim in Restitution 1. Mr Sedgwick also has a claim in restitution for the services he provided for Marlene's benefit since 2002. The claim consisted of hours of work committed for her benefit. But it also included a expenditure that he had incurred. 2. As to Richard Sedgwick's expenditure for Marlene's benefit, I accept his evidence that he incurred at least the following expenses. But whether they were all incurred in looking after Marlene between 2002 and 2011 and whether he has any claim for recovery in respect of any of them against the estate are quite separate questions. I accept the following from his evidence: (a) In 2002, he paid $2,000 towards Marlene's legal costs. (b) During the period September 2002 to February 2003 when Marlene was at the Mulawa Correctional Facility, he gave Marlene approximately $80 a week for six months which totals $1,920. (c) During the period from 27 February 2003 to July 2004 when Marlene was a patient at the Bunya Unit, he gave Marlene approximately $100 a week for 10 months, which amounts to $4,000 during this period. (d) As part of Marlene's claim for damages, her lawyers considered a claim for his expenses as Marlene's carer on the basis that a carer would be paid $21 per hour for an approximately 50-60 hour week. (e) Mr Sedgwick incurred petrol expenses during the period 2002 to 2010 when he visited Marlene when she was at the various institutions of approximately $50 per week petrol which equates to $20,800. (f) The insurance for Mr Sedgwick's motor vehicle was $500 per year during the period 2002 to 2010. (g) He incurred storage costs of $218 per month with Kennards Hire during the period 2002 for approximately 2004 (18 months) when I stored Marlene's goods. This equates to sum of $3,924. 1. Mr Sedgwick's claim in restitution is put in the alternative to his other claims. The claim he makes in restitution does not appear to exceed the quantum of the claim in equitable estoppel upon which he has succeeded. It may therefore be unnecessary for the Court to make findings in relation to the restitution issues unless one or other party wishes the Court to make such findings. But the parties can inform the Court of this. 2. Conclusion and Orders 3. In the result therefore, the plaintiff, Mr Richard Sedgwick has failed to establish that he is an eligible person entitled to bring a claim against the estate of the late Marlene Reis. The Court has found that he was neither in a de facto relationship with her nor was he living in a close personal relationship with her at the time of her death. The plaintiff has not succeeded in his claim in contract. The Court has found that one part of the plaintiff's claim in estoppel does succeed, namely that he is entitled to $200,000 from the proceeds of the settlement of Marlene Reis' personal injuries litigation. The plaintiff's claim in restitution is in quantum less than the amount upon which the plaintiff has succeeded. For that reason it should probably not be necessary to decide that claim, unless one or other party wishes the Court to do so. 4. Ordinarily upon such a result the defendant executrix would have her legal costs paid on the indemnity basis out of the estate and the plaintiff would have his costs paid on the ordinary basis by the estate. Unless one or other party wishes to contend for a special costs order that will be the result. The Court will give the parties a short period to put on any submissions about costs and to cooperate in agreeing upon a form of orders to give effect to these reasons. 5. The court orders therefore be: 1. Reserve for further consideration, the plaintiff's alternative claim in restitution. 2. Direct the parties to consult upon a form of orders to give effect to these reasons and to exchange any evidence or submissions in support of any claimed special costs order, by Friday, 18 September 2015 at 10.00am. 3. List the proceedings on Monday, 21 September 2015 at 9.30am for the hearing of any argument as to costs, for consideration of whether findings are required in relation to the plaintiff's alternative claims in restitution, and for the making a final orders. ********** Amendments 30 October 2015 - 79 and 138 - typos DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2015