Barlevy v Nadolski; Nadolski v Barlevy [2011] NSWSC 129 (8 March 2011)

Last Updated: 7 November 2011

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court New South Wales

Case Title:	Barlevy v Nadolski; Nadolski v Barlevy
Medium Neutral Citation:	[2011] NSWSC 129
Hearing Date(s):	19 October 2009, 20 October 2009, 21 October 2009, 22 October 2009, 23 October 2009, 26 October 2009, 5 November 2009, 16 November 2009, 17 November 2009, 20 November 2009, 25 November 2009, 24 February 2010
Decision Date:	08 March 2011
Jurisdiction:
Before:	Slattery J
Decision:	See paragraphs 222 and 223 of judgment.
Catchwords:	SUCCESSION - Family provision - deceased dies intestate - whether plaintiff an eligible person under Family Provision Act s6 - plaintiff claims to be in a domestic relationship with deceased in last three years of his life - if so, whether adequate provision made for the proper maintenance, education and advancement in life of the plaintiff - whether an order for provision should be made under Family Provision Act s7 - HELD - domestic relationship existed between plaintiff and deceased at the time of his death - plaintiff an eligible person - adequate provision for the plaintiff's maintenance, education and advancement in life not made - order for provision made in the sum of $750,000 from the estate.
Legislation Cited:	Family Provision Act 1982 (NSW), ss 6, 7, 9 Probate and Administration Act 1898 (NSW), s 61B(3B)(a) Property (Relationships) Act 1984 (NSW), ss 4, 5 Succession Act 2006 (NSW) Succession Amendment (Intestacy) Act 2009 (NSW) Wills, Probate and Administration (De Facto Relationships) Amendment Act 1984 (NSW)
Cases Cited:	Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 Churton v Christian (1988) 13 NSWLR 241 Dridi v Fillmore [2001] NSWSC 319 Re Fulop (deceased) (1987) 8 NSWLR 679 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Texts Cited:
Category:	Principal judgment
Parties:	Plaintiff/Cross Defendant-Susan Barlevy Defendant/Cross Claimant-Christopher Nadolski
Representation
- Counsel:	Counsel Plaintiff/Cross Defendant- Mr N.A. Confos Defendant/Cross Claimant-Mr L. Ellison SC; Mr J. Drummond
- Solicitors:	Solicitors: Plaintiff/Cross Defendant-Bray Jackson & Co Solicitors Defendant/Cross Claimant- Christopher Nadolski & Associates Solicitors
File number(s):	2007/2583492008/2547432007/1052632007/116247
Publication Restriction:

JUDGMENT

Introduction

1. HIS HONOUR : In 1941 Abraham Rotkopf escaped from the German conquest of his native Poland. Then a nineteen year old, he fled east from the invaders, as far as he could. His parents remained behind. They perished in the Nazi annihilation of the Jews of Poland. In 1942 in a state of exhaustion he reached Tajikistan. There a Russian couple took him in and nursed him back to health. He worked for them during the rest of the war and married their daughter, Anna Maximova. He and Anna had a happy marriage, which lasted over sixty years. They had no children together.

2. After the war Abraham and Anna Rotkopf returned to Poland. He qualified and then practised in Poland as a dentist. In 1950 Dr Rotkopf became the father by another woman of a child, Mr Edward Art. He is Dr Rotkopf's only child and he still lives in Poland.

3. Abraham and Anna Rotkopf emigrated to Australia in 1961. They lived together in their home in Sturt Street, Kingsford, in suburban Sydney, until her death in 2003. Dr Rotkopf prospered in Australia in his profession of dentistry. He was a man of charm, intelligence and cultured tastes. He enjoyed the company of his many friends. He had a forceful personality. He invested well. At the time of hearing his estate was valued at $2.7 million.

4. After his wife died in 2003, Dr Rotkopf felt a continuing need for close female company. In November 2003 he advertised in The Jewish News for a female companion. The plaintiff, Mrs Susan Barlevy, answered his advertisement. In February 2004 Dr Rotkopf and Mrs Barlevy commenced seeing one another socially. The nature of their relationship during the last three years of his life is the principal issue that Mrs Barlevy's claim raises in these proceedings.

5. Dr Rotkopf and his wife Anna had made mutual wills in which each gave the whole of their estate to the other. After Anna died Dr Rotkopf did not change his will, resulting in intestacy as to the whole of his estate. Subject to Mrs Barlevy's claim, Mr Edward Art, is entitled to the estate upon intestacy. The estate is administered by the defendant, a solicitor, Mr Christopher Nadolski.

6. Mrs Barlevy claims that she and Dr Rotkopf lived continuously as de facto man and wife for three years from February 2004 until January 2007 and that as a result she is (1) entitled to a share in his estate upon intestacy, or alternatively (2) she is an "eligible person", entitled to claim an order for provision out of his estate under the Family Provision Act , 1982. If she is unable to establish a de facto relationship, she claims to be entitled to an order for provision under the Family Provision Act, as a person living with Dr Rotkopf in a close personal relationship and providing him with domestic support and personal care during that same period. The estate disputes these and another alternative claim that Mrs Barlevy makes. The estate's case is that Mrs Barlevy was an acquaintance of Dr Rotkopf's but that by 2006 she was only Dr Rotkopf's paid domestic employee, and neither his de facto wife nor in a close personal relationship with him. Finally the estate says that even if Mrs Barlevy is eligible for an order for provision under the Family Provision Act that such claim should be limited in quantum.

7. There are related proceedings in which the estate claims possession of Dr Rotkopf's home in Sturt Street, Kingsford from Mrs Barlevy. She is currently living there. The estate claims possession and mesne profits in respect of her occupation. The issues in the possession proceedings will be determined by the issues in Mrs Barlevy's proceedings.

8. To determine the questions in Mrs Barlevy's proceedings it is necessary to examine the relationship between Mrs Barlevy and Dr Rotkof from 2004 to 2006 inclusive. The witnesses called for each side gave contrasting accounts of the nature of that relationship. Despite these differences, the accounts can be reconciled to an extent. A key to analysis of their relationship is the findings made in these reasons about Dr Rotkopf's unusual character traits. It assists analysis to state some of these particular findings at the outset.

Character of Dr Abraham Rotkopf

9. Dr Rotkopf was a decisive man in many things but not in his relationship with Mrs Barlevy. He sought out and enjoyed Mrs Barlevy's companionship. He found her personable and engaging. However on his side there was persisting ambivalence about the relationship. The people who knew him well reflect aspects of this ambivalence in their evidence. The full explanation for this ambivalence is undoubtedly complex and lies beyond legal analysis. But in my view it is probably explained by his continuing sense of loyalty to his late wife. He remained devoted to her memory but consumed by anxiety that he may have in some way contributed to her death. Yet his need for compatible female company led him to Mrs Barlevy. He enjoyed Mrs Barlevy's companionship but he did not go through with a marriage proposal that I find that he made to her. He left this part of his life in a state of indecision. He was probably incapable of doing anything else. This created predictable confusion both for Mrs Barlevy and for Dr Rotkopf's relatives and friends.

10. Dr Rotkopf also had a volatile sense of suspicion that just about everyone in his life was trying to take something away from him. He directed this suspicion at Mrs Barlevy, at times with passionate intensity. But she was not the only one subjected to it in the last years of his life. Perhaps only his late wife was exempt from this sentiment. But being the gentleman that the evidence generally demonstrates him to have been, he seemed conscious of keeping this sentiment under control, except in the last six months of his life. It is perhaps not difficult to see this sentiment arising in a man who had so much taken from him when he was young. Whatever it origins, this was a deeply held conviction that Dr Rotkopf held about the world around him including about Mrs Barlevy.

11. But Dr Rotkopf also never wished to be seen to take advantage of anyone's generosity towards him. He insisted on it to the point of ignoring social convention and discomforting those around him. In the last few years of his life, for example, he paid long-standing friends for their personal services to him. This was not just because he did not want to be obliged to them. Rather the evidence shows he did not wish them to feel that he was taking any advantage of them. He did not wish to feel that he was a burden to them, as perhaps he felt long ago, when Anna Maximova's family took him in.

12. The more he needed the care of those closest to him, the more he seemed to insist on paying them. It caused them confusion. When Dr Rotkopf paid someone he knew for their services, it did not necessarily mean that in his eyes the person was his employee or contractor. As his health declined, he paid the friends of a lifetime for their increasing personal services to him. Some of them found this confronting but they accepted it, because he insisted. He did pay Mrs Barlevy what in form appear to be payments for domestic services. But the actual character of these payments was that of gifts.

13. Once these character traits that emerge from the evidence are taken into account a more accurate picture of the relationship of Dr Rotkopf and Mrs Barlevy can be sketched. First though it is useful to state the law applicable to the first question the Court must determine: whether Mrs Barlevy's relationship with Dr Rotkopf makes her a de facto spouse on intestacy under the applicable Probate and Administration Act s 61B(3B)(a) or whether she is eligible to claim under the Family Provision Act against his estate .

Probate and Administration Act s 61B(3B)(a)

14. Mrs Barlevy's primary claim is that she was a de facto spouse of Dr Rotkopf at his death and for a continuous period of two years up to his death. Probate and Administration Act , s 61B (3B)(a) provided for an intestacy in certain circumstances where a de facto spouse of the intestate had been such a spouse for two years prior to the death. Probate and Administration Act , s 61B is the applicable legislation here because Dr Rotkopf died before 1 March 2009, when the intestacy provisions of the Probate and Administration Act were altered and became part of the Succession Act 2006. Prior to this time de facto relationships were recognised in the Probate and Administration Act (1898) through the amendments provided in the Wills, Probate and Administration (De Facto Relationships) Amendment Act (1984). These amendments recognised the interests of de facto partners in intestate estates, allowing a de facto spouse to take the share to which a spouse would have been entitled in a de facto estate provided that the relationship existed for more than 2 years before the death. A project by the Standing Committee of Attorneys-General to create uniform succession laws resulted first in the Succession Act (2006). The law regarding de facto couples was updated as part of a third stage of this project through the Succession Amendment (Intestacy) Act (2009). This Act repealed Part 2 Division 2A of the Probate and Administration Act (1898) including s 61B of the Act relating to de facto spouses, replacing it with the model bill endorsed by the Standing Committee of Attorneys-General that resulted in the introduction of Chapter 4 Intestacy provisions. These new provisions are not of present relevance.

15. At the time Probate and Administration Act, s 61B relevantly provided as follows:-

"61B Succession to real and personal property on intestacy

(1) Where a person dies wholly intestate, the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section.

(2) If the intestate leaves a spouse but no issue, the estate shall be held in trust for the spouse absolutely.

(3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then:

(a) the household chattels (if any),

(b) the prescribed amount, and

(c) one-half of the estate (excluding any household chattels and the prescribed amount),

shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate.

(3A) Notwithstanding subsections (2) and (3), if the intestate leaves a spouse and a de facto spouse, the whole or, as the case may be, such part of the estate of the intestate as is required to be held in trust for the spouse of the intestate shall be held in trust for:

(a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate and the intestate did not, during the whole or any part of that period, live with the person to whom the intestate was married-the de facto spouse, or

(b) in any other case-the spouse.

(3B) Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for:

(a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate-the de facto spouse, or

(b) in any other case:

(i) except as provided by subparagraph (ii)-the issue as if the intestate left no spouse, or

(ii) where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the intestate are issue also of the de facto spouse-the de facto spouse."

16. Mrs Barlevy submits that there was a continuous de facto relationship for two years until January 2007. The estate says there was not. But it is convenient to decide the questions raised by Probate and Administration Act, s 61B (3B)(a) at the same time as determining whether Mrs Barlevy was in a "domestic relationship" for the purposes of eligibility to claim under the Family Provision Act . The tests are not precisely the same but it is convenient to deal with them factually together. It is to analysis of those tests that the Court now turns.

"Eligible Person" Family Provision Act, s 6

17. The Family Provision Act continues to apply in this case as Dr Rotkopf died before 1 March 2009. The Family Provision Act requires that for an order for provision to be made for the maintenance, education or advancement in life of an applicant that the Court must be satisfied that the applicant is an "eligible person", as s 7 provides:

"Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person."

18. Upon the intestacy as to the whole of Dr Rotkopf's estate Mr Nadolski has been appointed administrator of that estate. Mrs Barlevy's application is still one "in relation to a deceased person in respect of whom administration has been granted" within s 7.

19. Mrs Barlevy claims to be an "eligible person" and therefore entitled to apply for an order for provision under Family Provision Act s 7. The relevant elements of the definition of an "eligible person" are set out in Family Provision Act s 6 as follows:

"eligible person , in relation to a deceased person, means:

(a) a person:

(i) who was the wife or husband of the deceased person at the time of the deceased person's death, or

(ii) with whom the deceased person was living in a domestic relationship at the time of the deceased person's death, or

...

(d) a person:

(i) who was, at any particular time, wholly or partly dependent upon 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 a household of which the deceased person was a member."

Sub paragraphs (b) and (c) of the definition of "eligible person" relate to former spouses and to children and have no relevance to this case. A person who claims to be a s 6 (a)(ii) "eligible person" must be living in a domestic relationship with the deceased person at the time of his or her death.

Domestic Relationship

20. Mrs Barlevy claims specifically that she was in a "domestic relationship" with Abraham Rotkopf as defined under Family Provision Act s 6(a)(ii) at the time of his death. Family Provision Act s 6 defines "domestic relationship" in that Act as having the same meaning as in the Property (Relationships) Act 1984, which in turn sub-classifies a "domestic relationship" into a "de facto relationship" or a "close personal relationship". The Property (Relationships) Act does this in s 5(1) which provides:

"1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care."

21. Mrs Barlevy puts her claim to have had a domestic relationship with Dr Rotkopf at the time of his death in two ways. She says that a "de facto relationship" existed between herself and Dr Rotkopf at that time. She submits in the alternative that she and Dr Rotkopf were in a "close personal relationship" at the time.

22. A "de facto relationship" is further defined in Property (Relationships) Act 1984 s 4 in the following terms:

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

23. On Mrs Barlevy's principal claim the Court must, by applying Property (Relationships) Act , s 4, determine whether or not she and Dr Rotkopf had a de facto relationship. Property (Relationships) Act s 4 (3) spells out: that no finding in respect of any of the matters in sub-section 4 (2) is to be regarded as necessary for the existence of a de facto relationship; and further that a Court determining whether such a relationship exists is entitled to have regard to such matters and to attach such weight to any matter as may seem appropriate to the Court in the circumstances.

24. Mrs Barlevy alternatively claims she and Dr Rotkopf had a Property (Relationships) Act , s 5 "close personal relationship" other than a de facto relationship. The elements of a "close personal relationship" are not defined in the Property (Relationships) Act itself. The Property (Relationships) Act s 5 precludes the inference of a "close personal relationship" where elements of the relationship are the subject of commercial agreement:-

"5 (2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation)."

25. Case law has developed interpreting this legislation in the absence of a statutory definition of the concept of "close personal relationship". In Dridi v Fillmore [2001] NSWSC 319 at [102]- [104] Macready M considered the elements that need to present in order for two people to be considered to be in a "close personal relationship" as defined under the Property (Relationships) Act , s 5:

"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."

26. The exclusions from the definition of "close personal relationship" under Family Provision Act , s 5(2) are also in issue here. The defendant says that Mrs Barlevy provided any domestic support and personal care that she did, "for fee or reward".

Partial Dependence

27. Mrs Barlevy finally submits that if she does not qualify as an "eligible person", under sub-paragraph (a)(ii) of the Family Provision Act definition on the basis of a "domestic relationship", then she should be considered to be an "eligible person" under subparagraph (d) of that definition. She says that she was a person who was at a particular time "wholly or partly dependent upon the deceased person [Dr Rotkopf]": definition sub-paragraph (d)(i). She submits that she was partly dependent on Dr Rotkopf for a period. She also claims that she fulfils the cumulative requirement of being then or at other times "a member of a household of which the deceased person was a member."

28. One common point in all the defendant's challenges to Mrs Barlevy's various alternative claims is the nature of her and Dr Rotkopf's living arrangements. The point arises in deciding: whether in her claimed de facto relationship they "live[d] together as a couple" ( Property (Relationships) Act , s 4(1)(a) ); whether they were "living together in her claimed "close personal relationship" ( Property (Relationships) Act, s 5(1)(b)); or, whether in her claim of partial dependence she "was a member of a household of which the deceased person was a member" ( Family Provision Act , s 6(d)). This is an important common issue to be decided by analysis of the evidence advanced in support of all her claims.

Findings about the Relationship from 2004 to 2006

29. The years of the claimed relationship between Mrs Barlevy and Dr Rotkopf almost coincide with the calendar years 2004, 2005 and 2006. They first made contact in late November 2003. They first met face to face in February 2004. He died on 2 January 2007.

30. A number of significant events in Dr Rotkopf's life divide up those three years. These reasons analyse the years in question by reference to four time periods. The first period is from their initial meeting in February 2004 until October 2005 when he had a fall and was briefly hospitalised. The second period is from November 2005 until February 2006 when there was a separation. The third period is from February 2006 until May 2006 when he was again hospitalised but for a more serious injury. The final period runs from his release from hospital in June 2006 through until December 2006/January 2007 when he died. But the starting point is their personal backgrounds and the circumstances of their meeting.

Dr Rotkopf and Mrs Barlevy

31. Dr Rotkopf and Mrs Barlevy were born in Eastern Europe about twenty years apart. Dr Roptkopf was born at Jaroslaw, Poland on 7 December 1922. His birth records show he was born in December 1917. But he adjusted his birth certificate so he appeared to be five years older, so that his wife, Anna, who was twelve years older than he was, would seem closer to him in age. She reduced hers by five years too.

32. He married Anna Maximova in the Soviet Union in 1944. After moving back to Poland after the war he migrated to Australia late in 1961. Both Abraham and Anna Rotkopf became Australian citizens in August 1968.

33. Dr Rotkopf practised successfully as a dentist in the Eastern suburbs of Sydney from the early 1960s. He began winding his practice down in the late 1990s. Ill health forced his final retirement from dentistry in 2005. He and Anna lived happily together until she died on 19 August 2003.

34. Dr Rokopf needed female companionship after his wife died. He placed an advertisement in the Australian Jewish News looking for what the advertisement described as a "companion". He placed the advertisement in the Australian Jewish News for a number of weeks in the following terms:-

"COMPANION WANTED

SEMI RETIRED - Professional gentleman wishes to meet pleasant, sincere, mature lady for companionship. Please call 0418 488 606"

35. Mrs Barlevy responded. At the time she had been a widow for over eighteen years. She too was looking for companionship. She was then working as a domestic assistant for about 40 hours per week, earning about $500 per week.

36. This advertisement set a standard for her and Dr Rotkopf's relationship from the first. I infer that Mrs Barlevy's decision to respond was grounded in expectations that the advertisement reasonably created. It asked for a companion. Under the heading "Companion Wanted", he crafted it to open up a social relationship, not to initiate employment of a domestic services worker. She would have been understandably surprised if after this advertisement he had started discussing an employment relationship when they first made contact. Mrs Barlevy could only have come to Dr Rotkopf with this expectation. And I accept her evidence about her early response and find that is just what she did. This supports her evidence about the early development of the relationship that I also accept.

37. Mrs Barlevy was born in Romania on 15 September 1941. Both her natural parents had also perished in the Holocaust. She migrated to Australia in July 1957 with her adopted mother.

38. Mrs Barlevy has been married twice. She married Thomas Allerhand in Sydney in 1958 and had two daughters, Marianne born in April 1959 and Andrea born in January 1964. This marriage ended in 1972 in divorce.

39. Mrs Barlevy married again. On 26 June 1979 she married Meir Barlevy in Sydney. They had one child together, Golda, born in June 1980. Mrs Barlevy and Mr Barlevy had in fact lived together from about mid 1976. He died in May 1985.

40. After reflecting on the advertisement Mrs Barlevy telephoned Dr Rotkopf. They spoke for some time. Over the ensuing weeks they had many telephone conversations, sometimes several on the same day. By early January 2004 they agreed to meet.

41. They first met on 5 January 2004 at the South Sydney Junior Rugby Leagues Club in Anzac Parade, Kingsford. They enjoyed one another's company from the first. They saw each other nearly every day and spoke on the telephone daily. They shared many common interests including their taste in music, playing chess and collecting stamps.

42. About three weeks after they first met Dr Rotkopf asked her to stay with him overnight at his home in Kingsford. She did not do so at first. But he kept asking her. Occasionally she did stay overnight at his home. They then reached a point of decision as to whether they should take the relationship any further.

February 2004 - October 2005

43. This first twenty month period is perhaps the least eventful period but the most important one for working out what kind of relationship Dr Rotkopf and Mrs Barlevy really had together. During these months the acquaintance of Dr Rotkopf and Mrs Barlevy unfolds. The period is full of social meetings of and the apparently inconsequential events of what I find to be their shared lives. The account below in this section represents my findings as to what happened during this period. It is largely based on Mrs Barlevy's account of their relationship in the period up to October 2005, an account that I accept.

Companionship

44. When Dr Rotkopf asked Mrs Barlevy to move in with him at his Kingsford home, he explained to her that he enjoyed her company and preferred not to be alone. That is consistent with other evidence that he was very keen to find female companionship after his wife's death. Indeed he made a number of approaches to other women apart from Mrs Barlevy. He commenced his search for a female companion within a mere two months of Anna's passing in August 2003.

45. Mrs Barlevy's first response was to talk it over with her daughter. She did so and after a little time decided she would move in to Kingsford. I accept that after a short period of thought she moved in with him as she too was a little lonely and he had persuasive charm.

46. They were regular companions. They went out socially together. Dr Rotkopf introduced her to his friends. Her recollection is that the first of these friends that she met was Mrs Inna Torbin. Mrs Barlevy recalls and I accept that Dr Rotkopf introduced her to Mrs Inna Torbin, saying to Mrs Torbin "this is Susan, the lady I have been talking to you about'. This is quite consistent with Mrs Torbin's recollection that indeed Dr Rotkopf had been telling her about Mrs Barlevy for some time before he introduced Mrs Torbin to her. In my assessment Mrs Torbin is one of the most important witnesses. Mrs Barlevy also says and I accept that in other introductions to his friends Greg and Leslie Capon he described Mrs Barlevy in endearing terms, "this is Susan, my angel, my partner". He also introduced Mrs Barlevy also to his deceased wife's relatives.

47. They went shopping together. They went to routine appointments such as the physiotherapist together. I accept that after a few months he referred to Mrs Barlevy as "my wife" in many of these public contexts.

48. Dr Rotkopf had relatives in America, Mr Jack and Mrs Shirley Dominitz. Dr Rotkopf corresponded with them. But it is obvious he included Susan in his communications with them. Although Dr Rotkopf's letters to Shirley and Jack Dominitz are not available, much can be inferred about his relationship with Mrs Barlevy from the cards and correspondence that was received back from Mr and Mrs Dominitz. This correspondence shows an unqualified acceptance of Mrs Barlevy as Dr Rotkopf's partner. She is mentioned continuously and afforded a status of inclusive affection in their correspondence. Some examples are important.

49. Communications from Mr and Mrs Dominitz generally coincided with Jewish holidays. At Rosh Hashanah they write in a card "Dear Dolek [their nickname for Dr Rotkopf] and Susan, we hope you are well and in good spirits. We just had our son Jason and his family here from Seattle for a week enclosed is a photo...Happy Rosh Hashanah love and all good wishes Shirley and Jack". They often sign their letters "fondly" or "love" addressed both to Dr Rotkopf and Mrs Barlevy, "Dear Dolek and Susan". The cards and letters express sentiments that presume a close relationship between the senders and receivers and between the receivers. At Hanukkah they write "love and shalom, Shirley and Jack" addressing their card "Dear Dolek" but adding "love and best wishes to Susan".

50. It is difficult to work out exactly which years each of these cards was sent. But there are, for example, two Hanukkah cards addressed "Dear Dolek and Susan", one is dated 2005 and the other, which sends "love and best wishes to Susan" is probably that same feast late in 2004.

51. But Mr and Mrs Dominitz's cards were still being sent into 2006. For Passover 2006 they write to Australia "Dear Dolek and Susan, we send our best wishes with health and peace love Shirley and Jack". It can be inferred from these cards commencing in 2004 that Dr Rotkopf had told overseas acquaintances of a close relationship with Mrs Barlevy. Whilst the longevity of that relationship is to be decided by many factors, these cards in my view are an important indication that a close relationship certainly commenced by about mid 2004.

52. I find that Dr Rotkopf and Mrs Barlevy commenced living together from February 2004. As he was semi-retired from his dental practice, they shared a weekly routine of work and leisure. He did not fully retire from dentistry until June 2005. Mrs Barlevy describes this routine in evidence that I accept.

53. Each Monday, Tuesday and Thursday morning Mrs Barlevy would drive Dr Rotkopf to his dental surgery in Maroubra at about 9am and she would collect him at 6pm. During the day she shopped, washed, cleaned and tidied the home at Sturt Street Kingsford.

54. Their evenings together were comfortable and domestic. They shared the cooking together in the first year, with Mrs Barlevy cooking one night and Dr Rotkopf the next. But by early 2005 she was cooking most of the meals; and after his fall in 2005, all of them. They spoke for hours after dinner each night about their past and their loved ones. It is clear from the evidence that Dr Rotkopf was an engaging conversationalist and a man who enjoyed company. Mrs Barlevy's account of these evenings is quite consistent with this part of Dr Rotkopf's disposition.

55. But Dr Rotkopf did not work at the surgery every day. There were days for recreation, which they spent together, sometimes shopping and other times going to the cinema. They both patronised the South Sydney Leagues Club ("Souths") and enjoyed eating at a Chinese restaurant there. The evidence from friends and from photographs taken at the restaurant strongly supports the conclusion that this mutual entertaining and these visits to Souths took place in this early period.

56. There was also a degree of financial interdependence in this early period. They did not share bank accounts but there was some pooling of cash. Dr Rotkopf would normally pay the bills. When Mrs Barlevy was short of money he would give her more, including at times for repairs to her car and for petrol. From time to time he even gave her money to assist her in her mortgage repayments. She felt obliged to him for this and offered to pay him back but I accept that he said to her " I don't want it back".

57. There was a sexual relationship between Mrs Barlevy and Dr Rotkopf. She says it was a regular intimate relationship between February 2004 and May 2006 but that it declined after his fall that month. Dr Rotkopf enjoyed the company of women. I accept her evidence as to this aspect of their relationship.

58. Dr Rotkopf took a strong interest in Mrs Barlevy's family. For example in September 2004 they both attended a party to celebrate the eighteenth birthday of her grandson, Daniel Stern. Dr Rotkopf was also close to Mrs Barlevy's daughter, Andrea Stern and her husband Haim. Mrs Barlevy recalls that they both went to Andrea and Haim's home on the Central Coast to celebrate their birthdays in January 2005.

59. It is important not to draw too much from just a few photographs. But photographs of the couple taken at Daniel Stern's eighteenth birthday show a pair very physically relaxed in one another's close company. They appear to be very much at ease with one another. Whilst I would not be prepared to infer a relationship from such photographs alone, they are entirely consistent with the other evidence I have accepted about the existence of a relationship of considerable intimacy in 2004 and 2005.

60. Mrs Barlevy herself was not in perfect health. In February 2005 she suffered chest pains and fainted. She was required to undergo an angiogram at Prince of Wales Hospital. Dr Rotkopf took her to the hospital and waited for her so that they could go home together. Ultimately because of the length of her wait her daughter Marianne took her home.

61. Dr Rotkopf gave Mrs Barlevy special opportunities to be with her own family. In May 2005 he purchased her an airline ticket to go to Israel for the marriage of her daughter Golda. In fact they were both invited to attend this wedding but he decided against travelling overseas. Mrs Barlevy went to Israel and holidayed in Hong Kong. Whilst away in both Israel and Hong Kong Dr Rotkopf rang her on many occasions. He was concerned whilst she was away and telephoned her daughter Andrea Stern and her husband, because as Dr Rotkopf later explained to her, "I was just worried about you that's all".

62. The relationship progressed and maintained the quality described here until October 2005 about twenty months after it started. It was then that Dr Rotkopf decided to introduce a degree of formality into the relationship, which was a little surprising to Mrs Barlevy, and which rapidly caused tension to arise between them.

63. But during this early period Mrs Barlevy also interacted with several of Dr Rotkopf's friends, Mrs Inna Torbin and Mr Darius and Mrs Antionette Pilat. Their evidence was of great value in the proceedings in my assessment of the facts. They were not related to Anna Maximova. They were close to Dr Rotkopf. Dr Rotkopf confided in Mrs Torbin and valued her opinion. These witnesses saw Mrs Barlevy and Dr Rotkopf together regularly and in different contexts. They were highly credible witnesses. Other witnesses, including relatives, also saw them together. I assess these witness later in these reasons.

Evidence of the Independent Witnesses

64. Mrs Inna Torbin was one of the most impressive witnesses to give evidence in the proceedings. She was intuitive, perceptive and someone who genuinely had Dr Rotkopf's best interests at heart. Dr Rotkopf had consistently sought out and valued Mrs Torbin's opinion about many things since they met by chance at a wedding in 1997. It is unsurprising that Dr Rotkopf asked Mrs Torbin about Mrs Barlevy. Mrs Torbin made clear to the Court that Dr Rotkopf wanted from her a woman's opinion of Mrs Barlevy. The fact that Dr Rotkopf asked for such an opinion from Mrs Torbin itself shows his deepening relationship with Mrs Barlevy. Dr Rotkopf saw Mrs Torbin, and her husband George, often socially and he wanted to continue that friendship. Indeed according to Mrs Torbin Dr Rotkopf described Mr and Mrs Torbin as his closest friends. Dr Rotkopf needed to find out if Mrs Barlevy met with their approval. She did.

65. Mrs Torbin's evidence was especially credible because it gave an unflinching account of the difficulties in the relationship between Dr Rotkopf and Mrs Barlevy. Mrs Torbin was called on behalf of the plaintiff. But she said that there were fights between the two. She gave a crisp and accurate account of the relationship. I will return to aspects of her evidence in later periods, where she confirms many elements of a continuing relationship between the Dr Rotkopf and Mrs Barlevy after May 2006.

66. Dr Rotkopf actually asked Mrs Torbin to find him a companion when he was grieving after his wife's death. Mrs Torbin introduced Dr Rotkopf to Ms Nadiya Kudin. But the deceased said to Mrs Torbin that his minimum requirements for a companion was someone who could speak good English and could drive a car and that Ms Kudin could do neither of these. Mrs Torbin's recollection is that she and her husband and Mrs Kudin and Dr Rotkopf only went out together socially once or twice. Ms Kudin gives the impression of a much longer relationship with Dr Rotkopf, evidence that I do not accept, because I prefer the evidence of Mrs Torbin. Mrs Torbin recalls that Dr Rotkopf enthusiastically told her about "a real nice lady by the name of Susan Barlevy" that he wanted her and her husband George to meet. Mrs Torbin said on that first night they had a very enjoyable evening. Mrs Torbin's evidence is also confirmed by my impressions of Mrs Barlevy in the witness box. She was a person of lively charm who engaged well within the courtroom.

67. Mrs Torbin's account is that from about, as she recalls it, January 2004 the relationship between Dr Rotkopf and Mrs Barlevy grew stronger and stronger. It appeared to Mrs Torbin that Mrs Barlevy commenced to live with Dr Rotkopf at Sturt Street, Kingsford from about March 2004. To her observations they lived together until Dr Rotkopf's death. I accept this evidence. But for the reasons analysed below, in my view, although they continued to live together after May 2006, as Mrs Torbin says, the nature of their relationship changed from what I assess was a de facto relationship to become a close personal relationship.

68. Mrs Torbin spoke on the telephone at least two or three times a week to Dr Rotkopf; she had telephone conversations with Mrs Barlevy and she went out to dinner and a show with her husband, Dr Rotkopf and Mrs Barlevy and they visited one another's homes. No other witness in the proceedings saw Dr Rotkopf and Mrs Barlevy in 2004 and 2005 with this regularity and in this variety of situations.

69. Other friends of Dr Rotkopf, Mr and Mrs Pilat gave evidence. Mr Darius Pilat is Polish. He often spoke to Dr Rotkopf by phone. They got on well. Dr Rotkopf and Mrs Barlevy visited the Pilat's home, especially after the Pilats' daughter Otylia was born in late 2004. The Pilats also visited the Kingsford home. Their evidence was particularly valuable to the Court.

70. Mr Pilat was one of Dr Rotkopf's dental patients. His evidence of affection between Dr Rotkopf and Mrs Barlevy is convincing. So is his evidence that often Mrs Barlevy was present with Dr Rotkopf when the Pilats came to visit Kingsford.

71. Mr Pilat could not identify many of the other women that Dr Rotkopf mixed with including Ms Nadiya Kudin and Mrs Torbin. The fact that Mr Pilat noticed Mrs Barlevy with Dr Rotkopf is some indication of her prominence in Dr Rotkopf's life. Mr Pilat did not recall, when he was with Dr Rotkopf, any woman other than Mrs Barlevy. Ms Nadiya Kudin had been introduced to Dr Rotkopf after his wife's death but Ms Kudin's English was not up to the standard that Dr Rotkopf wanted in a companion. Mr Pilat's evidence is useful in establishing the regularity of the relationship between Dr Rotkopf and Mrs Barlevy in the period up to February 2006.

72. Mrs Pilat also visited Dr Rotkopf every few weeks. Mr. Pilat made the social arrangements. But I accept her evidence that on these visits Dr Rotkopf called Mrs Barlevy "darling". She also remembered Dr Rotkopf calling Mrs Barlevy in Polish, "my lady", and using a particularly charming Polish expression of endearment, one which Mrs Pilat's husband also addressed to her. She confirms a warm and affectionate relationship between Dr Rotkopf and Mrs Barlevy

Mrs Barlevy's daughters

73. Mrs Barlevy's daughters Golda Cohen, Andrea Stern and Marianne Bohadana also gave useful evidence about the period up to October 2005. They are less helpful in distinguishing the changing events in 2006. Although they were clearly very close their mother, I found them to be generally reliable witnesses and I accept their evidence as described in this section.

74. Golda Cohen. Golda Cohen only saw Mrs Barlevy and Dr Rotkopf together four times. It was mostly early in their acquaintance but also later because Ms Cohen was away overseas for a period. Ms Cohen's descriptions of moments of demonstrative affection between her mother and Dr Rotkopf were convincing. For example she painted a compelling picture of Dr Rotkopf sitting with her mother in front of a wall unit in a chair at her brother's 18 th birthday, which was in September 2004. She described the pair kissing on the mouth and walked arm in arm and hand in hand.

75. Ms Cohen left Australia in 2004. She would usually see her mother a few times a week before she left. She says and I accept that Mrs Barlevy did not stay the night back at the Bondi apartment before Ms Cohen went overseas. It is of course possible that Mrs Barlevy may have stayed at the Bondi apartment after Ms Cohen left. But I accept Ms Cohen's evidence that she lived with her husband at the Bondi apartment and that her mother was not staying at Bondi. This is another basis to infer, as I do, that Mrs Barlevy was living with Dr Rotkopf.

76. Phone contact with her mother was important for Ms Cohen. I accept that if she wanted to telephone Mrs Barlevy she rang Dr Rotkopf's landline. How often she actually called her mother depended upon how she felt but overall it was regular telephone contact. Ms Cohen's calls to Dr Rotkopf's landline and to Mrs Barlevy's mobile telephone seem to be distributed right through the period 2004 to 2006.

77. Finally, Ms Cohen's evidence supported her mother's account on the subject of her mother's assets and liabilities. Ms Cohen says and I accept that she did not make regular payments on the mortgage for the Bondi apartment. Rather she contributed what she could to the mortgage payments when she was in Australia, often only $150 or $200 at a time. She did not contribute to the mortgage payments when she was overseas.

78. Andrea Stern. Andrea Stern mainly communicated with her mother by telephone over the period her mother and Dr Rotkopf knew each other. Ms Stern would see her at home sometimes. Ms Stern only had a few visits to her mother over the 3 years, 2004 to 2006. These visits were for afternoon tea.

79. Ms Stern's main form of contact with her mother was the telephone. She says, and I accept, that she would ring the landline at Kingsford and her mother would be there.

80. Marianne Bohadana. Mrs Bohadana is Mrs Barlevy's daughter. Her mother introduced her to Dr Rotkopf in March 2004. She lives on the Central Coast. Mrs Bohadana works every weekend. She recalls that she visited Dr Rotkopf's house twenty times and possibly more. I accept her evidence about this.

81. Mrs Bohadana would plan to come down to Sydney. Mrs Bohadana would try and include a visit to her mother on her trips to Sydney. She cannot recall visiting the Bondi unit except for her nephew's birthday.

82. Mrs Bohadana says that sometime late in 2006 she recalls visiting her mother and Dr Rotkopf at Kingsford. She says, and I accept, that when her mother was in the bathroom that Dr Rotkopf said to her "I really love your mother. I want to marry her. I want to be with her". Her reply was "that's really nice. I am sure that will make her very happy". Mrs Bohadana gives a clear picture of Mrs Barlevy and Dr Rotkopf living together in the second half of 2006, which confirms evidence of Mrs Torbin.

Dr Rotkopf's Accountant

83. Ramesh Chandra . Mr Ramesh Chandra was Dr Rotkopf's accountant for 20 years before his death. Mr Chandra practiced in the firm Selingers in Castlereagh Street, Sydney. Mr Chandra found Dr Rotkopf's maintenance of records was average but he was quite good in filling in cheque butts and similar bookkeeping and clerical work.

84. Mr Chandra's evidence confirmed much about the sharing of Mrs Barlevy's and Dr Rotkopf's financial lives. His timesheets record attendances on "Dr Rotkopf and Susan" in relation to bank reconciliations, wages, tax advice and payments to a caretaker in 2005, matters which related to his dental practice for an investment property. Mrs Barlevy's involvement in such matters indicates that Dr Rotkopf was sharing his confidential information with her and seeking her assistance in such transactions. This involvement appears to have been warranted because Mr Chandra's evidence was that she highlighted some errors. Dr Rotkopf did let Mrs Barlevy into involvement in his financial affairs.

85. Dr Rotkopf also later sought advice on the tax deductibility of payments made to carers. Mrs Barlevy was said to be his carer. Mr Chandra advised that medical expenses are not tax deductible. Dr Rotkopf did not want to pay for nursing care.

86. Mr Chandra was sensitive to his client's broader problems. He recalls that Dr Rotkopf was depressed and would ring and seek the same advice several times. On each occasion, Mr Chandra gave the same advice as he had before. Similar advice was given on these occasions.

Funeral Arrangements

87. Dr Rotkopf made a pre-arranged funeral contract for himself and his wife Anna in November 2002. His later communication with the funeral directors to change these arrangements also demonstrates Mrs Barlevy's status in his life.

88. Dr Rotkopf had arranged his funeral with Walter Carter Pty Limited Funeral Directors before his wife died. He first made these arrangements in September 2002. He then arranged for his wife Anna's burial through Walter Carter Pty Limited in August 2003. On 10 September 2004 he telephoned the office of Walter Carter Pty Limited to request an update to the pre-arranged funeral details. Dr Rotkopf's telephone call meant that a staff member from Walter Carter Pty Limited would have to see him to update the details at his home. The changes then made to the funeral details were that his marital status was changed to "widow" (sic) and under the client name the name of "Susan Barlevy" was added. This meant, according to Mr Smith, from Walter Carter Pty Limited, that Mrs Barlevy was the person responsible for making the funeral arrangements for Dr Rotkopf. The information that Dr Rotkopf gave to Walter Carter Pty Limited is consistent in my view, with Mrs Barlevy having pre-eminent personal status in his life. I infer that the information so recorded came from Dr Rotkopf himself. By placing Mrs Barlevy in a position the equivalent of next of kin he preferred her above other persons in whom he confided from time to time such as even Mrs Torbin and his relatives the Filimonovs. It is an important indication of her uniquely close status in his life in 2004. It is not without significance that despite the tempestuous nature of his relationship with Mrs Barlevy from mid 2006, he never sought to change these arrangements.

Dr Rotkopf Consults Diana Perla

89. In working through the at times contradictory evidence about Dr Rotkopf and Mrs Barlevy's relationship in the last fifteen months of his life from late 2005 the evidence of solicitors is of central moment. The evidence of these professionals provided anchors of fact for much of the evidence. Diana Perla was the first of them.

90. In October 2005 Dr Rotkopf told Mrs Barlevy that he was going to see a solicitor specialising in Family Law. She says and I accept that he said to her "I have been told as my de facto you can leave me and claim half my estate. I want to find out about this". He went to see her and she picked him up afterwards at Bondi Junction, after she had finished work. He recounted to Mrs Barlevy that he had instructed the solicitor to draw up a contract, which he insisted that she sign. Her attitude was that she did not want to sign such a contract but she was not going to leave him. I accept her account about this. It is convenient to deal with Ms Diana Perla's evidence in the next time period from November 2005 to February 2006 when her advice was mostly given.

91. Mrs Torbin explains the origins of Dr Rotkopf's idea that he should protect himself legally from a possible claim by Mrs Barlevy. She recalls in October or November 2005 that Dr Rotkopf said to her:-

"A Polish friend of mine has told me that I am stupid (or a fool) to let a woman (I took this to mean referring to Susan) live with me. I think I have to get a contract to protect myself."

92. She advised him to do whatever he thought necessary. But the conversation with Mrs Torbin is clear indication that Dr Rotkopf himself thought that he was in a de facto relationship with Mrs Barlevy sufficient that he needed to get legal protection for himself. It is convenient first to deal with the advise that he got on this subject from Mr Zouroudis.

Mr Zouroudis

93. Mr Zouroudis was a solicitor who Dr Rotkopf saw in October 2005. Mr Zouroudis was an excellent witness whose evidence I accept. Mr Zouroudis knew Dr Rotkopf from a conveyancing transaction in 1996 and then acted for him on various other matters over the years. His first contact with Dr Rotkopf was on 20 October 2005. During that conversation Dr Rotkopf told him about Mrs Barlevy which included statements that she slept in the same room but "we have separate beds. I support her for payments for my house". Dr Rotkopf was not telling Mr Zouroudis the full facts here as to their sexual relationship.

94. Not long afterwards on 7 November 2005 he received a telephone call from Mrs Barlevy in which she said to him " I am his [referring to Dr Rotkopf] companion. His partner in life. I fell in love with him but at the present time I hate him. I am not a carer. I gave up everything to look after him so he would not be alone. He gave me money. I gave up one of my jobs. We have been together for 21 months. I have paid him back $2,100. I am not paid as a carer. I will not make any claim against him, ever ." Mr Zouroudis' account of Mrs Barlevy's conversation here is generally consistent with the case that she now makes in Court. She adamantly refused to be treated as a paid carer. It seemed to her, quite understandably, to be inconsistent with the dignity of the relationship that she thought that she and Dr Rotkopf had together.

95. There clearly was some kind of rift between them in November 2005 because Dr Rotkopf telephoned Mr Zouroudis that month and said the agreement was not necessary because Mrs Barlevy did not want to come back.

96. Mr Zouroudis gives evidence of a tempestuous relationship between Dr Rotkopf and Mrs Barlevy. He seemed to be of the impression that the relationship had ended by about November 2005. But yet he was also not at all surprised to see Mrs Barlevy with Dr Rotkopf later than that.

97. Mr Zouroudis' found Dr Rotkopf indecisive. Decisions were stressful for him. This is consistent with much other evidence about Dr Rotkopf at the time that Mr Zouroudis took instructions. In my view he was concerned about Mrs Barlevy making a claim against him during his lifetime. But he did want to provide for their continuing relationship.

Mr and Mrs Lambrinos

98. Mr Angelo Lambrinos and his wife Argero were Dr Rotkopf's neighbours for over 30 years. They were friendly with Dr Rotkopf and his wife Anna. They both made observations about Dr Rotkopf and Mrs Barlevy.

99. Mr Angelo Lambrinos. Mr Lambrinos seemed sure of himself but his evidence suffered somewhat from the fact that his affidavit had not been read over to him in Greek when he swore it. It was unclear what change he wanted to make to the affidavit. He seemed confused about the correctness of some paragraphs of his affidavit.

100. Mr Lambrinos did not really gather much about Dr Rotkopf's private affairs. He had in my view a good neighbourly relationship with Dr Rotkopf but not a strong personal and social relationship, such as for example Dr Rotkopf had with Mrs Torbin. Mr Lambrinos seemed reluctant to say whether he would actually know whether there was a de facto relationship between Dr Rotkopf and Mrs Barlevy. Given his actual level of knowledge of this issue, his reluctance to express a view on this issue seemed to me to be very responsible.

101. Mr Lambrinos did not see womens' belongings in Dr Rotkopf's Kingsford home. But he admitted he did not go and look in the wardrobes. Mr Lambrinos stayed overnight once and went to the bathroom, but this was fairly soon after Dr Rotkopf's first wife died. In my view this visit was a poor basis to infer what Dr Rotkopf and Mrs Barlevy's relationship was like in 2004 and 2005.

102. Mr Lambrinos does not remember the names of any of the other women who acted as carers for Dr Rotkopf. But at one point Mr Lambrinos said that Mrs Barlevy was living there and they were like neighbours. This supports that Mrs Barlevy was in reasonably permanent occupation, even though he says he did not see "a woman's touch" at Kingsford. I did not regard Mr Lambrinos as a particularly observant witness of such things.

103. Mrs Argero Lambrinos. Mrs Lambrinos also seems to have sworn her affidavit without having it translated from Greek into English. Her daughter read the affidavit over to her later. This impaired the quality of her evidence slightly. It was not possible always to be sure that she had fully assented to the contents of her affidavit.

104. Mrs Lambrinos did not see any demonstrations of affection between Dr Rotkopf and Mrs Barlevy. This is in conflict with Mrs Torbin's evidence and I do not accept it. She says that she did see Dr Rotkopf reasonably often. She worked early in the morning and late in the afternoon as a cleaner but was home between 8.00am and 3.00pm when she would have been in a position to see Dr Rotkopf. In my view Mr and Mrs Lambrinos were less conscious of the affection shown between Mrs Barlevy and Dr Rotkopf than other witnesses who did observe it and whose evidence I prefer.

105. Mrs Lambrinos recalls Mrs Barlevy introducing herself as "taking care of" Dr Rotkopf. Something like that was probably said. That is in 2004, in a very understated way, what Mrs Barlevy was doing for Dr Rotkopf. I have found that the relationship developed into something far more than this. It was not necessary for Mrs Barlevy to try and re-introduce herself as Dr Rotkopf's de facto wife, especially given Mr and Mrs Lambrinos' long standing association with Dr Rotkopf's wife Anna.

106. Mrs Lambrinos was not a close personal friend of Dr Rotkopf. Again in contrast to Mrs Torbin she did not have a conversation with Dr Rotkopf about his relationship with Mrs Barlevy. Dr Rotkopf did not seek to confide in Mrs Lambrinos about such matters. Mrs Lambrinos does appear to have just assumed that Mrs Barlevy was a domestic worker "like the other women". Mrs Lambrinos was busy and did not fully concern herself about relationships next door. I do not accept that Mrs Barlevy said to Mrs Lambrinos that she "went there to work".

The Relationship by October 2005

107. The relationship between Dr Rotkopf and Mrs Barlevy qualified as a de facto relationship between March 2004 and October 2005. They lived together. They had a sexual relationship. Mrs Barlevy became financially dependent upon him and there was mutual consensus as to this financial support in the relationship. They both used the Sturt Street Kingsford property and treated it as home. They shared household duties. They showed mutual commitment to a shared life through the time they spent together, their common interests, their apparent enjoyment of one another's company and the joint public nature of their relationship. Moreover Dr Rotkopf in public introduced Mrs Barlevy as "his wife" and showed demonstrative affection towards her in front of others. In my view all of these factors were quite strong in this case for the period March 2004 to October 2005 sufficient to find the existence of a de facto relationship. The defendant raised a number of matters against this conclusion but I did not find them persuasive. Some of them have already been dealt with in the discussion of the evidence above. Other matters are dealt with in the next section.

February 2004 to October 2005 - Some Defence issues

108. The defendant raised in submission or cross-examination a number of specific contentions about the plaintiff's case for this first period. It is necessary to analyse the defendant's principal contentions in addition to my indicating a preference for the plaintiff's witnesses for this period.

109. Failure to change her address. Mrs Barlevy put the Bondi apartment address in her Israel Immigration form. She explained that the Bondi address was the same address as her passport. She did not have a clear explanation as to why she also used a phone number for Bondi, an address she then did not use, and a phone number she says had been cut off. But using these details from Bondi does not seem improbable once the use of the address is understood. These documents and others like them are readily explained by inadvertence. The direct oral evidence that I have accepted that she was living in Kingsford is to be preferred over such documents.

110. Dr Rotkopf did not like to have mail sent to his unit. He had a Post Office box to which mail was sent for that purpose. They cleared it together each day. Dr Rotkopf did not want people to know about where he lived. He used an alias with some people such as shopkeepers so that people would not know who he was and where he lived. I accept that is why he organised the Post Office box and it was used for some mail rather than to Kingsford.

111. Mrs Barlevy's applications to the banks in April and June 2004 gave her address as Bondi because as she explained her daughter still had that as her primary residence, even if Mrs Barlevy had Kingsford as her primary address. Also it seems to me that April and June 2004 are still early in the relationship and it is not difficult to accept she would use the old address. She also later made a Mobility Banking Scheme application giving her address as the Bondi apartment. But this is to be judged in a similar way to the other documents in which she used the Bondi address.

112. Taxation and Social Security. Mrs Barlevy has not put in a tax return for over 10 years, before Dr Rotkopf's death. Just what was her taxable income during this whole period was not at all clear. Mrs Barlevy's view was that Dr Rotkopf was not paying her but the money was a gift. In her view there was no income from this source. My findings are consistent with this belief on her part. She had other apparently small sources of income such as making swimming costumes for children and selling them at local markets. But whether this was income she should have declared, but did not, is unclear.

113. Mrs Barlevy did not tell Centrelink she was in a de facto relationship with Dr Rotkopf between March 2004 and October 2005. She received the full aged pension at the single rate during that period without discount or adjustment on account of her living in a de facto relationship with Dr Rotkopf. My findings that there was a de facto relationship during this period up to February 2006 make the position clear. After that, she was in a close personal relationship, not a de facto relationship. Her non-disclosure of this relationship does her no credit. She will no doubt have to answer to the relevant authorities. But this matter does not cause me to doubt the rest of her evidence.

114. Mrs Barlevy's other work. Mrs Barlevy continued to undertake unpaid work when she knew Dr Rotkopf. She looked after an elderly lady, Magda Gati, who she felt was like her mother. Ms Gati died in June 2006. She did not know how many hours a week she spent with Ms Gati. Mrs Barlevy visited her every day 4-5 hours a day in 2004 and sometimes more. She was very ill before she died. One or two days a week, 3 or 4 hours a week Mrs Barlevy also did domestic work for Anna Weiss in Double Bay. In my view all of this was fitted in around Mrs Barlevy's commitments and time with Dr Rotkopf.

115. Nadiya Kudin. Dr Rotkopf's relationship with Ms Nadiya Kudin is not inconsistent with his having a de facto relationship with Mrs Barlevy. Mrs Torbin had introduced Nadiya Kudin to Dr Rotkopf before he met Mrs Barlevy. But Dr Rotkopf wanted a companion with better English skills that Ms Kudin. But they did see one another socially too and Dr Rotkopf enjoyed her company socially. She was also working for him though and being paid. She says that they went to clubs and restaurants and concerts together. She recalls that they stopped going out in 2006. I accept that they did go out socially for a period but in my view other than for the odd casual outing, any frequent socialising with Ms Kudin had declined well before mid 2004.

116. Dr Rotkopf's Impotence . The defendant points to medical evidence that Dr Rotkopf was impotent. Despite this medical evidence in my view Mrs Barlevy is to be accepted. The precise nature of their sexual relationship was not elaborated in the evidence but I accept that sexual relations took place.

November 2005 - February 2006

117. Dr Rotkopf had a fall in November 2005 at Kingsford. He did not break any bones in this fall but was shaken by it. His mobility began to deteriorate. In subsequent months he fell over again a number of times and became less confident on his feet. From time to time he used a walking stick.

118. This began to affect his outlook on his relationship with Mrs Barlevy. She says and I accept that he needed her assistance more. He said to her "I am too much alone. Can you give up your work and spend more time with me? If you need money, I will help you out." She then reduced her working hours from forty hours a week down to about twenty-five.

119. Dr Rotkopf had consultations with Ms Perla during this period but nothing concrete emerged from them. Mrs Barlevy recalls going with Dr Rotkopf to see Ms Perla together, then on a second occasion she waited while Dr Rotkopf saw Ms Perla. As is clear from Ms Perla's evidence below she was taking more instructions from Dr Rotkopf but without a decisive final course being indicated to her.

120. The period between October 2005 and February 2006 is filled with consultations with Ms Perla and with Mr Zouroudis. Despite taking extensive advice from competent professionals Dr Rotkopf did not make up his mind about a final agreement with Mrs Barlevy. There could be several reasons for this. The best view of this evidence is that she did move out of Kingsford in November 2005, and the relationship had ceased to be as close as it once was. But she did move back soon after, probably in February 2006. In my view Dr Rotkopf did not go ahead with the agreement because Mrs Barlevy was adamantly opposed to it.

Diana Perla

121. Ms Perla met with Dr Rotkopf for the first time on 18 October 2005. She recorded that Dr Rotkopf said to her that Mrs Barlevy "moved in with me in February 2004. She has asked for money." Dr Rotkopf then explains that "she is a companion", works as a part time carer during the day and is with him in the afternoon. Dr Rotkopf then described to Ms Perla their days together in a way which was generally consistent with the routine which Mrs Barlevy described. Ms Perla warned him that "this could be construed as a de facto marriage". She advised him that the danger time for a de facto marriage was approaching in February 2006.

122. A prominent feature of Ms Perla's consultations with Dr Rotkopf was the distinction that her client drew between what should happen in his lifetime with his estate and what should happen after his death. He wanted to leave his estate to Mrs Barlevy, despite what he had said to Ms Perla about Mrs Barlevy being "a companion". Dr Rotkopf also mentioned his dental nurse, Ena and charity as possible persons for testamentary recognition. I accept all that Ms Perla says about this. It is confirmation of Mrs Barlevy's pre-eminence in Dr Rotkopf's testamentary intentions. Dr Rotkopf's immediate difficulty was what would happen before he died. Indeed the form of an agreement which was drafted but not executed gave 75 per cent of his estate to Mrs Barlevy in the event that he continued to care for him in the manner outlined in the draft agreement but 40 per cent of his estate in the event that there was a separation before death. The draft agreement was far more parsimonious about what should happen in the event of separation prior to his death, with her receiving $15,000, if they separated in under 12 months, and $15,000 for every year thereafter.

123. Ms Perla sent the agreement to Dr Rotkopf. But she never negotiated with a lawyer on behalf of Mrs Barlevy about the matter. On 14 November 2005 she was telephoned by Mrs Barlevy who said to her, and I accept that this was said, "I am not living here anymore. I don't want to move back in". Mrs Barlevy was cross-examined about this statement and explained that she was very angry, and that it was said in anger. But Mrs Barlevy did not come to a decision not to go back to the property. Indeed the best explanation of what happened from here is that she did go back.

124. Despite another meeting in mid December 2005 with Dr Rotkopf and a meeting with both Dr Rotkopf and Mrs Barlevy in late January nothing was decided or executed. In addition to the agreement and a draft will that she had drawn up, she drafted for him by the end of January 2006 a blank form of appointment of enduring guardian and a blank form of power of attorney. There is no evidence that Dr Rotkopf executed any of these documents.

125. Dr Rotkopf contacted Ms Perla a number of times in the first two weeks of 2006 and then she wrote to him on 14 February 2006 saying among other things:

"You have also informed me that you do not wish to continue any relationship with Susan and that you are considering an alternative accommodation."

126. I accept that Dr Rotkopf did inform Ms Perla of this. But it was part of a rift between Mrs Barlevy and himself that was at that stage unresolved. A factor in the rift was his desire to have executed the agreement that Ms Perla had drafted for him. But Ms Perla's letter of 14 February 2006 also asked him to execute a will because he appeared to her to have no other immediate family. Dr Rotkopf did not contact Ms Perla again. In my view he was racked by indecision. To advance the draft agreement was repugnant to Mrs Barlevy. He could not make up his mind about a will. He letter the matter ride because he valued her presence in his life.

127. The correct conclusion from the evidence about this period is that there was a separation somewhere in about November 2005 for a period until about February 2006. But my findings in the next section show that there was a reconciliation.

128. The defendant raises a number of important matters about this period. When Dr Rotkopf was examined by Professor Broadaty Dr Rotkopf did inform Professor Broadaty that Mrs Barlevy had moved out "some two weeks ago" further supporting my findings that she did.

129. The defendant also says that the proper inference to draw from the evidence of the solicitors: that Mrs Barlevy was asking for money; and that she believed she had given up everything to look after Dr Rotkopf; is that she was pursuing money for unpaid services. The defendant says the relationship had become commercial. I do not accept that contention. It is inconsistent with the evidence of Mrs Torbin and the evidence of Mrs Barlevy about a reconciliation, which evidence I accept.

130. The defendant also points to cheques to Ms Kudin being drawn by the deceased in the period December 2005 to February 2006. In my view the defendant is correct that these indicate Mrs Barlevy was probably absent from Sturt Street, Kingsford for some of this time. He was paying Ms Kudin for care services. Had Mrs Barlevy returned before mid February 2006 it is likely that that would have been clearly recorded in Ms Perla's notes. But it does not seem to be. In my view she returned within a few weeks after Ms Perla's letter of 14 February 2006.

131. The defendant also points to cheques in amounts of about $250-$300, paid to Mrs Barlevy in this period, suggesting he had decided to pay her, for provision of caring services to him. I do not accept that this is the correct inference from these cheques. I do not think she was at Sturt Street, Kingsford in December 2005 and January 2006. Mrs Barlevy did spend longer back at Bondi in this separation than she admits.

February - May 2006

132. Mrs Barlevy claims that the period of February to May 2006 was an important part of her relationship with Dr Rotkopf. She says he proposed marriage to her in April 2006 one night after dinner at Kingsford. I accept that they were seeing one another in this period. They were together a little later when he had another serious fall at Souths. She says that he proposed to her in the following terms:-

"One evening in April 2006, after dinner at our home, Abi proposed to me. The conversation was as follows:

Rotkopf: 'Susan sit down, I have a serious question to ask you'.

Barlevy: 'Yes darling one moment after I clean the table'.

Rotkopf: 'I have decided to marry you, what is your answer?'

Barlevy: 'Yes. You know I love you and I will never leave you, even though we are not married legally. You don't have to worry about it'.

Rotkopf: ' Do you want a religious wedding?'

Barlevy: 'Yes, but I know you don't want one. I am ok with the register officer or celebrant.'"

133. I accept that Dr Rotkopf had this conversation with Mrs Barlevy. It was not the first or the last time that he had discussed marriage with her. For reasons that are more fully explained later with respect to Dr Rotkopf's last marriage proposal later in 2006, in my view it is understandable that Mrs Barlevy did not say much about this proposal to third parties at the time. I do not infer from this conversation that Dr Rotkopf actually wanted to go through with a marriage ceremony with Mrs Barlevy in the short term. Rather, in my view, after their difficulties in late 2005 and early 2006, he still wanted to keep her close to him. Whatever his other fears about Mrs Barlevy making financial claims against him during his lifetime, he did not want her to leave him.

134. A conversation that Mrs Frida Filiminov says that she had with Dr Rotkopf in November 2005 also supports the inference that Dr Rotkopf did discuss marriage with Mrs Barlevy at some time. Dr Rotkopf rang the Filimonov family from time to time for advice and to talk. The conversation Mrs Filimonov had with Dr Rotkopf about Mrs Barlevy, Mrs Filimonov says she is sure happened in November 2005. This was about the time that Dr Rotkopf consulted solicitors about legal agreements with Mrs Barlevy. Mrs Filimonov says that Dr Rotkopf said to her "Susan wants my money and property and she wants to become my wife. I need to do something to prevent this from happening. I am paying her like I do all the other women." I do not think Dr Rotkopf actually said that he was paying her "like all the other women". He was not employing many other women in November 2005. But she did give him advice to see a solicitor. This conversation confirms in my view that there is likely to have been a conversation between Mrs Barlevy and Dr Rotkopf about marriage.

135. Dr Rotkopf suffered a fall in May 2006 at Souths. As Dr Rotkopf and Mrs Barlevy were entering the Club the revolving door hit him on the right shoulder. He fell the ground on his left side and sustained a fractured left hip. He was taken directly to Prince of Wales Hospital by ambulance. Mrs Barlevy accompanied him.

136. The fall was serious enough to require an operation. He had surgery two days later on 6 May 2006. Before the surgery Mrs Barlevy says that she recalls a conversation with him about the subject of marriage and his not having made a will. The conversation was said to be to the following effect:-

"49. At the casualty department of the hospital, Abi was told he needed an operation. At that time we had the following conversation:

Rotkopf: 'Susan my darling, I am so sorry that I didn't marry you yet and have not made a will'.

Barlevy: 'Darling, don't worry about this now, the important thing is to get well. After you come home there will be plenty of time for everything'.

Rotkopf: 'What will happen to you if I will not come out of the operation alive? Who will look after you?'

Barlevy: Don't talk like this. Everything will be ok. You will have the best surgeon and I am here with you.'"

137. I accept that Mrs Barlevy's evidence that she had this conversation with Dr Rotkopf at this time. It is probable that he would have mentioned wills and marriage whilst he was about to undergo an operation. He did not make a will. He did not pursue the idea of marriage with anyone independent of Mrs Barlevy.

The Prince of Wales Hospital

138. There was much conflict about the events that occurred at Prince of Wales Hospital. Mrs Barlevy says that she was by his bedside day and night for some days and visited him in hospital at least twice a day and was referred to as his "wife" by medical staff.

139. Mr Sergei Filimonov gives a rather different picture. He says that he visited his uncle in hospital on the 6 th of May 2006 during which Dr Rotkopf said to him " Susan definitely wants my money and property. I do not want this to happen. She says to the doctors and nurses that she is my wife. She is not my partner or my wife. I am paying her a wage like I do for all the other women who help me. " Mr Sergei Filimonov then advised him to organise to see a solicitor. Indeed arrangements were made for this to happen and Dr Rotkopf saw Mr Robert Macaulay, solicitor, whilst in hospital.

140. Mr Sergei Filiminov is convincing about the conversation he says he had with Dr Rotkopf on 6 May 2006. I accept that he said this to Mr Filimonov. Dr Rotkopf changed his mind on several occasions about whether or not he wanted to see a solicitor but ultimately he did see Mr Macaulay.

141. The clinical notes from the Prince of Wales Hospital present a confusing picture but one that more supports Mrs Barlevy's case. Throughout they refer to Mrs Barlevy as Dr Rotkopf's "wife". The clinical notes show that he was very solicitous as to Mrs Barlevy's welfare at times and she was apparently very calming for him. Mrs Barlevy was certainly visiting very regularly. The notes include observations that Dr Rotkopf "is less agitated when she [Mrs Barlevy] is here" and again it is recorded "patient paranoid at times about welfare of partner as well as nursing staff". There are other entries showing that he was "eating and drinking good amounts with his wife's assistance". Mrs Barlevy's care for him does emerge from these notes.

142. On the other hand there are expressions of hostility on his part towards her and what the clinical notes describe in him as "paranoid ideas". He developed paranoid ideas that the nursing staff were stopping Mrs Barlevy from seeing him. But consistently with Mr Sergei Filimonov's evidence he was also described as having "several bouts of paranoid behaviour stating partner taking his money and house from him". He was directing some of his paranoia at her.

143. After spending about three weeks at the Prince of Wales Hospital, Dr Rotkopf was transferred to the War Memorial Hospital. But he was very unhappy there and signed himself out. He was impulsive. Mrs Barlevy says she tried to persuade him to stay at hospital until he was more mobile but he wanted to come home immediately. This is what happened. In his own determined way he signed himself out of the hospital and went home.

144. Mr Sergei Filimonov says that when he went home Dr Rotkopf had four female carers, his mother Frida Filimonov, Mrs Susan Barlevy, Mrs Torbin and Ms Kudin. Mr Valeri Filimonov and Mrs Frida Filimonov's evidence is to similar effect. Upon discharge no doubt this is how it appeared to some of them. But in my view the evidence of one of these carers, Mrs Torbin, is decisive at this point that the relationship between Mrs Barlevy and Dr Rotkopf was more than that. She says that when Dr Rotkopf came home from hospital one of the Filimonovs said to him "we are all prepared to do anything for you and we don't want any money". But Dr Rotkopf replied "no I am going to pay everyone. Because of their negligence, I had this fall, so I am going to claim from the Club. I will ask them to give me back all the money that I have paid all of you." Indeed she witnessed an interview between Dr Rotkopf and either a solicitor or loss adjuster who may have been sent out by the Club to speak to him and take a statement. I accept that he was serious about this claim against the Club. Dr Rotkopf here gives the reasons why he was keeping records of payments that he made. He felt happy to be generous with those around him in hope that he might be able to recover this money from the Club.

Robert Macaulay

145. Dr Rotkopf consulted Mr Macaulay in the Prince of Wales Hospital. Dr Rotkopf had previously retained Mr Macaulay on other matters. Dr Rotkopf wanted to give Mr Macaulay instructions about his will at the hospital. Mr Macaulay's evidence makes reasonably clear that Dr Rotkopf's fears that claims might be made by Mrs Barlevy against him were coming into the ascendant again. But these fears did not persist to the point that he went through with executing any formal document with Mr Macaulay. Mr Macaulay was another very credible legal professional.

146. Dr Rotkopf's instructions to Mr Macaulay resembled those given to Ms Perla and Mr Zouroudis but in my view they had become more divorced from reality. I accept Mr Macaulay's account that this is how Dr Rotkopf started " I employed a housemaid. She has been telling the hospital staff that she is my next of kin and that I am incompetent. I think she is after my estate. I have done something stupid. I started paying her periodically. But I am not sure whether I paid her weekly or fortnightly, but I was paying her in the normal way of paying an employee.... " He then went on to admit sleeping with her a few times but saying "she isn't my girlfriend". And that he is no longer sleeping with her and has "no feelings towards her". He then discussed instructions about giving her $1,000 in his will and giving $1 million to Sergei Filimonov.

147. I accept Mr Macaulay when he says that Dr Rotkopf referred to Mrs Barlevy as the "housemaid", which Mr Macaulay contracted to "maid" in his notes. This seemed to be Dr Rotkopf's temporarily narrow view of the relationship at that time. It shows a degree of distorted thinking on Dr Rotkopf's part. Afterall, Dr Rotkopf was describing the woman with whom he had been in a 20 month de facto relationship until only a few months before, which was not mentioned. She was not in 2004-2005 regarded by Dr Rotkopf as a "housemaid". Dr Rotkopf's thinking about Mrs Barlevy had become highly selective and unreliable. In less distorted moments even in late 2006 he did recognise a more personal relationship with her than this.

148. Mr Macaulay is also the solicitor to whom it might be expected that Dr Rotkopf would give instruction to sue Souths. He is the first solicitor that Dr Rotkopf saw after his accident. This issue was important as it is one of the reasons that Mrs Barlevy advances to explain why Dr Rotkopf was keeping records of payments to carers. But Dr Rotkopf did not give instructions to Mr Macaulay to sue South Sydney Leagues Club.

149. But Mr Macaulay discussed the fall at the club in the context of why he was there to see Dr Rotkopf at the hospital. I accept that Mr Macaulay has a clear recollection of the occasion. This was an unusual visit for him. Mr Macaulay recalls and I accept that he did not want to be distracted by a personal injuries claim.

150. Mr Macaulay had no reason to believe Dr Rotkopf was lying to him. Mr Macaulay had experienced him in previous dealings as a forthright and honourable man. Nothing seems to have alerted Mr Macaulay on this occasion to anything different.

151. In my view the proper conclusion to be drawn at the end of this period accepts the strength of the defendant's submission that whatever reconciliation had occurred between Dr Rotkopf and Mrs Barlevy they did not re-establish a true de facto relationship. The dealings with lawyers, the arguments and the length of the separation test the proposition in my view that they had a continuing mutual commitment to a shared life. Dr Rotkopf was becoming so unstable that such a commitment was difficult for him to make. This is not one of those cases where there was a temporary break up in a de facto relationship. In my view a true de facto relationship had ended by May 2006. But they did live together for the last 6 months of 2006 and Mrs Barlevy provided him with domestic support and personal care on a non-commercial basis.

June 2006 - December 2006

152. After his discharge from the War Memorial Rehabilitation Centre Dr Rotkopf needed around the clock care. He was a large and heavy man. Mrs Barlevy had great difficulty in lifting and manoeuvring him from his bed and wheelchair and assisting him in the bathroom and with his personal toilet. He did need other carers.

153. Dr Rotkopf was a strong man. Mrs Barlevy says, and I accept, that his hip injury from the May 2006 fall frustrated him as did his immobility, the slowness of his recovery and his increasing reliance upon others, for his normal daily routine. This frustration lead to outbursts of anger against herself, his friends and the professional assistance that he had. I accept what Mrs Barlevy says that he shouted, he threw items and he blamed her for his fall. She says, and I accept, that he became very difficult to live with after May 2006 and that she had a growing dislike for the way he treated her. Mrs Torbin confirms that he was as difficult as Mrs Barlevy says.

154. Mrs Inna Torbin's evidence becomes important again in the last six months. I accept her evidence as to why he was paying out his carers and keeping records of it. It explains much about his somewhat strange behaviour. Mrs Torbin recalls that "from time to time" Dr Rotkopf wanted the Club to pay him compensation for his fall. In my view this is what probably happened and explains some of his contact with the solicitors.

155. Mrs Torbin also recalls hearing Mrs Barlevy's side of the fights with Dr Rotkopf and her saying, "when I'm hurt I say things but I don't mean it". Mrs Barlevy's own evidence was that she cools down after arguments. It was probable in my view that the argument that occurred in December 2006 would have blown over like many others and she would have "cooled down" and returned to Dr Rotkopf's apartment had he survived. Mrs Barlevy gives evidence of a change of heart to this effect, which I accept.

156. Mrs Torbin confirms that she saw Mrs Barlevy's face cream and medication at the Kingsford home and that even from June 2006 Mrs Barlevy's pillow was there. I infer from Mrs Torbin's evidence that she saw continuity between this period after Dr Rotkopf's discharge from hospital and the earlier times that Mrs Barlevy had lived at Sturt Street, Kingsford, when she and her husband socialised with Dr Rotkopf and Mrs Barlevy. The problem now was that Dr Rotkopf was becoming so unpleasant that social engagement with him was becoming more testing for her and her husband.

157. Mrs Torbin describes Mrs Barlevy's earlier relationship with Dr Rotkopf as one of sufficient personal intensity and intimacy that it is also difficult to see how it could merely dissolve into the mere provision of and personal care for fee or reward and nothing more. I have found there was a de facto relationship until November 2005. It is improbable in common human experience that a broken relationship of the level of intimacy demonstrated up to November 2005 would merely become one of employer and paid domestic assistant. In my view it is likely that either the relationship survived in some personal form or Mrs Barlevy would have left.

Arguments and Proposals

158. Dr Rotkopf and Mrs Barlevy had some intense arguments in these last six months. He would say hurtful things to her and she would leave for a period. She would stay overnight with her friend, Ms Patricia Spitz. She says and I accept that on one such occasion she, when staying with Patricia Spitz that her daughter Andrea Stern called her and as a result she spoke to Dr Rotkopf in the following terms:-

"Barlevy: 'Why are you ringing Andrea and disturbing her.'

Rotkopf: 'Because you didn't answer your phone and I was worried about you.'

Barlevy: 'I'm ok. Why did you ring?'

Rotkopf: 'I wanted to say sorry. I didn't mean it. I love you. Please come home.'"

159. According to Mrs Barlevy Dr Rotkopf did not abandon the subject of marriage between them. Despite the arguments that they had had in 2006 she says they had the following conversations about possible marriage:-

"Barlevy: 'Ok darling, let's do it'.

Rotkopf: 'But I want to walk to the registry office, as soon as I can, we will do it.'

Barlevy: 'Ok, whatever you like.'"

160. I accept that this conversation occurred. But Dr Rotkopf did not take the idea any further. He was still undecided. But he wanted to ensure Mrs Barlevy did not leave. In that in my view he succeeded.

161. At first it seems odd that Mrs Barlevy did not want to tell others of her engagement. But it is noteworthy that Dr Rotkopf did not give her any token or thing to mark their engagement in any public way. He had proposed marriage before and nothing had come of it. And he was becoming angry with her at times. Mrs Barlevy could not be blamed for being cautious about declaring the existence of this marriage proposal to others. It is perhaps odd too that she does not recall any first name or surname of a proposed marriage celebrant. But if she was waiting for some clear indication from him that he wished actually to go through with marriage then her vagueness about such details is understandable.

162. There is a pattern in his returning to this subject of marriage. He appears to raise it at times when he feels most vulnerable and dependent, as he was in hospital or after six months at home, or when he wished to ensure she would stay with him when they reconciled in February 2006. He spoke to her affectionately in part to keep her with him and in part because he meant what he said. But his behaviour tested the limits of any relationship as the last few days of his life showed.

Final Days

163. I accept Mrs Barlevy's account of the last time she was with Dr Rotkopf. She had been with him during the period 28 - 30 December 2006 but had had very little sleep due to his demands and her attending to his needs. This became acute on the evening of Saturday, 30 December 2006. Her account, which I accept, is that he had had a bad night; he asked her five or six times to pass him a bottle so he could urinate but he was not able to do so; he then asked for water. He then asked for more water. He then asked for a bottle of water; she took him a two-litre bottle which calmed him down and she then went to bed. Not long afterwards he disturbed her again; he asked her to get up and cook him something at 2am. She got up and cooked him scrambled eggs; he then wanted pork chops and onions; she stayed up with him while he ate until about 4.30am. They both then went to sleep. But he woke again at 6am and wanted her to assist him to have a shower. By then she was exhausted. They had an argument about his demands.

164. Mrs Barlevy had had a very difficult three nights. Dr Rotkopf had been constipated and he then fouled the sheets. She had to assist him to have a shower and to strip the sheets and clean the bed and the floor. For a period of time in the middle of the nights he spent four hours directing her in a long search for taxation papers that he insisted be found at that very time. Their mutual tiredness led to raised tempers. He called her a liar and could not accept her explaining to him what she had done for him and why his accusation was unjustified.

165. He then tried to pick up his walking frame and tried to hit her. She began to cry and left the house. Mrs Torbin was there at the time. She left him with Mrs Torbin. In my view she was living with Dr Rotkopf just before she left.

166. Mrs Barlevy claims she had two conversations with Dr Rotkopf on Monday 1 st January 2007. I accept her evidence about this. One was at 8am and the other was at 3pm. In these conversations he asked her, "when are you coming home?". She said she needed "one night of good sleep". She promised to be home as she said, on "Tuesday morning". She had one more short conversation with him. That was their last contact. He was found dead on the morning of Tuesday the 2 nd of January 2007. She tried to call him but had received no answer.

Mr and Mrs Filimonov

167. It is important to deal with two other witnesses who gave evidence about this period, Mr and Mrs Filimonov.

168. Mr Valeri Filimonov. Valeri Filimonov was paid $17 per hour for sleeping overnight to care for Dr Rotkopf. This is odd because he was not a "carer". He was a relative with an affectionate relationship with Dr Rotkopf. That Dr Rotkopf should insist on paying $17 per hour to such a near relation goes a long way to explaining Dr Rotkopf's relationships with people who were close to him. Many people would regard the making of these payments as inconsistent with a close relationship of affection, but not Dr Rotkopf.

169. Mr Valeri Filimonov says Nadiya took care of Dr Rotkopf at night and Inna during the day. Dr Rotkopf organised the shift of who of the carers was to look after Dr Rotkopf on which night.

170. Valeri Filimonov had little sympathy for Mrs Barlevy. Valeri Filimonov was also quite sure Mrs Barlevy said she was going to claim that she his de facto wife.

171. Mrs Frida Filimonov. In the period after May 2006, Mrs Filimonov said she was was swapping shifts with Mrs Barlevy and Ms Kudin to look after Dr Rotkopf. I do not accept her evidence that it was a simple shift and roster arrangement in which they took turns as equal assistants. I accept that Mrs Barlevy was living there at Kingsford, staying overnight but that she was given respite by the others on an organised and rostered basis from giving him direct hands on care, because of the exhausting schedule of looking after Dr Rotkopf's needs at that time. But Mrs Barlevy was still living with him and providing him with domestic support and personal care. The roster was to supplement Mrs Barlevy's care of him. She stayed overnight.

172. Mrs Frida Filiminov says she and Mrs Barlevy slept in the other room, not in Dr Rotkopf's bedroom. From time to time this was probably what happened, when several of them were there, as at times it was hard to look after Dr Rotkopf alone. But just after he came out of hospital and before he went in there were two single beds together in the front room in which he slept. Mrs Barlevy commonly used one of these.

173. Mrs Filimonov was not prepared to concede Mrs Barlevy much. She seemed, rather like her husband, to be very guarded about saying anything that might advantage Mrs Barlevy. I approach her evidence and his with a degree of caution for this reason and I prefer Mrs Barlevy's evidence. Also it did not seem that Dr Rotkopf told Mrs Filimonov everything that was going on in his personal life. It would not have been surprising if he did not discuss with Mrs Filiminov the full extent of his relationship with Mrs Barlevy.

June to December 2006 - Defence Issues

174. The defendant contends that Mrs Barlevy was not in a domestic relationship with Dr Rotkopf in the last six months of his life and that her presence at Sturt Street Kingsford is to be explained through her providing rostered contract domestic services to him. The defendant advances a number of contentions based on the evidence for the Court to draw this conclusion. I prefer the witnesses, such as Mrs Barlevy and Mrs Torbin who describe a deeper relationship than that of employer and domestic services contractor during this last period. But this section additionally analyses the defendant's other contentions about this period.

175. Events after January 2007. The defendant points out that Mrs Barlevy told various banks, the Roads and Traffic Authority and the local Council after Dr Rotkopf death that her address was Sturt Street Kingsford. This might suggest that she was attempting to improve her claim at this point. But the better explanation in my view was that she though that this address is where she would be in the short to medium term. She says she forgot to change many of these addresses until after Dr Rotkopf died. Given the difficult relationship they had before he died this explanation is not as surprising as it might sound and I accept it. In contrast the death certificate identifies her as the informant and gives the Bondi address for her. But she denies giving that address to the police. It is not clear in my view that she did.

176. The fact that Dr Rotkopf used in his cheque butt calculations hourly rates of pay for Mrs Barlevy that he also used for other workers, as he did, is not strong evidence that he was paying her a commercial wage or fee. The inference is equally open that to maintain his records in a way that would allow his claim against the club to proceed he needed to be seen to be paying Mrs Barlevy the same as what he was paying the other carers. Moreover, the evidence from some of the others apparently paid at these rates is that they just saw themselves as Dr Rotkopf's friends and were willingly helping him for nothing and did not want him to pay them in a legal relationship. To prove equality of payment with such people does not advance a case that Mrs Barlevy was being paid under a commercial arrangement.

177. Rather I accept Mrs Barlevy's evidence that, although Dr Rotkopf used the hourly rate paid to the other carers to pay cheques to Mrs Barlevy. But I find that she was not given the cheques for work done but as a gift and to otherwise cover her mortgage payments.

178. Mrs Barlevy says Dr Rotkopf told her to write false hours in the cheque stubs, so he could make a claim for his accident at Souths. I accept that making such a claim was part of his motivation for making the entries that he did. Mrs Torbin recalls him contemplating making such a claim.

179. Although the defendant claimed that Dr Rotkopf's payments to carers were commercial payments there was no evidence that he either sought or received ABN numbers from any of the persons to whom he was making the payments. There is no evidence that he treated them as employees and obtained tax file numbers or undertook any of the paperwork that would be associated with discharging proper taxation responsibilities for the payments. Perhaps this is partly explained by Mr Chandra's evidence who said that such payments were not tax deductible. But the paperwork should still have been done if these were genuine payments.

180. The defendants point out that the payments made to the plaintiff were considerably in excess of her mortgage commitments for the period May to December 2006 of $7,700. They were in this period $36,785 (Exhibit 9). I accept the defendant's submission that Dr Rotkopf was a "meticulous person". But that does not mean the recording of the times worked by Mrs Barlevy is cogent evidence that the payments were made for work performed by her. Rather, in my view they are detailed evidence of his preparation for a personal injuries action against Souths that he never ultimately undertook.

181. The defendant also points to Exhibit 9 and evidence in which the plaintiff concedes that she did not remain at Sturt Street, Kingsford when other carers were performing their duties. But that does not mean in my view that Mrs Barlevy accepted the inference that she was not present at times when other carers were performing duties.

182. Many of the defendant's submissions about the cheque butts are based upon an assumption that the plaintiff was not there when other carers are recorded as performing duties. That is not an assumption in my view warranted on the evidence.

183. Nor in my view is much store is to be placed upon the similarities in entries on the cheque butts between Mrs Barlevy, Ms Kudin and Mrs Filimonov. Dr Rotkopf was proposing to use the cheque butts all for the same purpose in his own mind, against the Club. It is not surprising that they were similar.

184. My conclusion at the end of the period from June to December 2006 and in the first few days of 2007 is that a close personal relationship continued between Mrs Barlevy and Dr Rotkopf. They were living together. She was providing him with domestic support and personal care. She was not doing so for reward or a fee.

Conclusion on "Eligible Person"

185. I conclude therefore that Mrs Barlevy is an "eligible person" under Family Provision Act s6. She was in a "domestic relationship" with Dr Rotkopf at the time of his death, that being a "close personal relationship" and was partly dependant upon him, being a member of his household: see definition of an "eligible person" s 6, sub-paragraph (a). She had been in a de facto relationship with him from February 2004 until February 2006 but after June 2006 in a "close personal relationship" not a de facto relationship until his death. There was a separation between the two about November 2005 and Ferbuary 2006 which removed their mutual commitment to a shared life. As a result Mrs Barlevy was not "the de facto spouse of the intestate for a continuous period of not less than two years" prior to his death: Probate and Administration Act , s 61B(3B).

Eligible Person - Dependent and member of household

186. My finding that Mrs Barlevy was living in a close personal relationship, with Dr Rotkopf at the time of his death and therefore a sub-paragraph (a) "eligible person" means that it is strictly unnecessary to decide whether she was also a sub-paragraph (d) "eligible person".

187. But in my view she would also satisfy the requirements of sub-paragraph (d). The evidence identified above that shows for the purpose of establishing a "close personal relationship" under sub-paragraph (a) that Mrs Barlevy was "living in" a domestic relationship with Dr Rotkopf also establishes that she was a member of a household of which Dr Rotkopf was a member. The quality of that evidence from her especially during the last period from June 2006 to December 2006 also shows in my view that she was not just a paid carer but rather someone who was a member of Dr Rotkopf's household. Her presence there is to be explained by her relationship with him and by his desire to have her stay with him in the household, not by her being summoned to answer the obligations of a contract for services with him.

188. Aspects of the same evidence from this last period also establish that she was dependant on him. There was dependence in the early part of their relationship when she was in his household through the money he gave her for household expenses and to cover some of her mortgage payments. In the later part of the relationship cheques that he wrote her that are said by the estate merely to be evidence of a service relationship (a claim I have rejected) are for this purpose also evidence of dependence.

The Family Provision Act s 9 Considerations

189. Now the issue of "eligible person" is resolved in Mrs Barlevy's favour, the question arises whether any, and if so what, order for provision should be made in her favour. Family Provision Act s 9 sets out the steps the Court must consider in determining whether or not to make any provision under s 7. Family Provision Act s 9 relevantly provides as follows:

"9 Provisions affecting Court's powers under secs 7 and 8

(1) Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of eligible person in section 6 (1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.

(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:

(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or

(b) in the case of an order under section 8:

(i) if no provision was made in favour of the eligible person by the deceased person, the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person, or

(ii) the provision made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate as well as the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person,

is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.

(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(i) the acquisition, conservation or improvement of property of the deceased person, or

(ii) the welfare of the deceased person, including a contribution as a homemaker,

(b) the character and conduct of the eligible person before and after the death of the deceased person,

(c) circumstances existing before and after the death of the deceased person, and

(d) any other matter which it considers relevant in the circumstances.

(4) Nothing in subsection (3) (a) limits the generality of subsection (3) (b), (c) and (d) and the Court may consider a contribution of the same nature as that referred to in subsection (3) (a) or of a different nature in so far as it considers it relevant under subsection (3) (b), (c) or (d)."

190. The operation of s 9(2) and s 9(3) are well established in authority. The Court must consider in a Family Provision Act application whether or not the provision made in favour of the plaintiff by the deceased either during the deceased's lifetime or out of the deceased's estate is now "inadequate for the proper maintenance, education and advancement in life of the eligible person": Family Provision Act s 9(2). If the Court makes a determination of inadequacy, the Court must then determine "what provision (if any) ought to be made in favour" of the plaintiff taking into consideration the matters set out in Family Provision Act s 9(3)(a)-(d).

191. The separate nature of these two questions under Family Provision Act s 9(2) and (3) was affirmed by a majority of the High Court in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 123 ALR 481; (1994) 181 CLR 201 at 209:

"The first question is, was the provision (if any) made for the applicant ``inadequate for [his or her] proper maintenance, education and advancement in life''? The difference between ``adequate'' and ``proper'' and the interrelationship which exists between ``adequate provision'' and ``proper maintenance'' etc were explained in Bosch v Perpetual Trustee Co Ltd . [1938] AC. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder [1951] HCA 44; (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

192. The High Court recently confirmed this approach to the operation of Family Provision Act s 9 in Vigolo v Bostin [2005] HCA 11; (2005) 213 ALR 692; (2005) 221 CLR 191 at [112]. The defendant contested whether or not Mrs Barlevy had established the necessary elements under Family Provision Act s 9(2) and whether application of Family Provision Act s 9(3) called for much provision to be made in her favour.

193. As I have found that Mrs Barlevy's claim to be an eligible person is made out not only on the basis that she was in a domestic relationship at the time of his death but on the basis of sub-paragraph (d) of the definition of 'eligible person", the requirements of Family Provision Act s 9(1) are engaged. It is therefore necessary for the Court to determine whether having regard to all the circumstances of the case (whether past or present) "there are factors which warrant the making of the application". And if there are no such factors, then the Court must refuse to proceed.

194. Do Family Provision Act s 9(1) Factors Exist?

195. I have found that Mrs Barlevy was living in a domestic relationship with Dr Rotkopf at the time of his death: Family Provision Act , s 6 "eligible person" (a)(ii). Thus, it is not strictly necessary for the Court to decide whether the plaintiff qualifies as an "eligible person" under subparagraph (d) as a person who was wholly or partly dependent upon a deceased person who was a member of the deceased person's household. I have already identified that evidence exists sufficient for the Court to infer that Mrs Barlevy was "an eligible person" qualifying under subparagraph (d). Were the question of eligibility dependent upon Mrs Barlevy qualifying under subparagraph (d), this is a case in my view where there are factors which warrant the making of the application sufficient to satisfy Family Provision Act , s 9(1). The existence of those factors means that the Court could receive solely under subparagraph (d) to determine the application.

196. Family Provision Act , s 9(1) only applies to certain classes of applicants who are not generally to be regarded as natural objects of testamentary recognition by a deceased person. This suggests that the "factors" referred to in Family Provision Act , s 9(1) are factors which when added to facts which render the applicant an "eligible person" also give the applicant the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased person: see Re Fulop (deceased) (1987) 8 NSWLR 679 at 681 per McLelland J and Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 at 252E. Where persons affected by Family Provision Act , s 9(1) have the circumstances of their relationship with the deceased set out it can sometimes immediately be seen that they are persons who would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 at 252E.

197. There is direct evidence, which I accept, that Dr Rotkopf did want Mrs Barlevy to receive an interest in his estate. She was the contemplated object of his testamentary intentions. This emerges from the memorable piece of evidence from the solicitor, Ms Perla. When dealing with the issue of why it was when Dr Rotkopf seemed to be concerned about claims upon his estate that he should give instructions to Ms Perla to give quite a large proportion of his estate to Mrs Barlevy, Ms Perla replied:-

"Your Honour, he wasn't concerned about her claiming of his estate. He was concerned about her claiming in his lifetime. The co-habitation agreement is to do with separation, that he could take from her. On my initial consultation with him...he has discussed with me a will. At the same time as being concerned about Susan getting money on a separation, he is saying to me he wants to leave to Susan, she is number one in his will...Because the two things are different, when he is dead he doesn't need his money anymore. It is in his lifetime that he didn't want her to be able to make a claim under the Property Relationships Act , so that was the difference."

198. This distinction is evident from the draft will that Ms Perla prepared for Dr Rotkopf on 31 January 2006. The will provides that Mrs Barlevy would get 75 percent of his estate if she continued to care for him and only 40 percent, if by the time of his death they had separated. Though not executed the document shows that Dr Rotkopf contemplated that she was a substantial object of his testamentary intentions even after they had separated and she had ceased to care for him. Ms Perla was a most reliable witness and I accept this evidence from her.

199. Another factor which also satisfies Family Provision Act , s 9(1) in this case is that Mrs Barlevy showed immense patience and equanimity with Dr Rotkopf in the last months of his life when his unpredictable behaviour was at its worst and directed against her. She put up with a great deal. She would leave him from time to time to get space to preserve her personal resources to continue to deal with him. But these were in my view only natural acts of self-preservation undertaken to allow her respite to return and continue with the relationship. He made her angry but as she says she always "cooled down" and came back. I accept her evidence that she had decided to come back when he died and that she had the conversations with him that she says she did, just before he died. She demonstrated a very high standard of patience and commitment in these circumstances almost equivalent to that of a de facto partner, although she was not his de facto partner at the very end of his life. In this context it is also to be noted that her de facto relationship with him had lasted just under two years before it broke down and resumed as a close personal relationship. This was another factor qualifying her as a natural object of his testamentary recognition and warranting the making of the application and for the Court proceeding with it: Family Provision Act , s 9(1).

Was the provision Inadequate?

Mrs Barlevy's Means

200. Mrs Barlevy has few assets and a modest pension income. She was not cross-examined to establish that her account of her assets was inaccurate or that she had other assets or income. Her only holding in real estate is a one half interest as tenant-in-common in equal shares with her daughter, Golda in an apartment in New South Head Road, Bondi. Her half interest in this unit is valued at $190,000.

201. She has other movable assets, which are: a 1990 Honda Civic motor vehicle valued at $3,000; together with furniture, chattels fittings clothing and personal items worth between $8,000 and $10,000; and, a cheque account with a credit balance of $50.00. She has no life or superannuation policies, nor any jewellery of any commercial value.

202. Mrs Barlevy's liabilities are significant. They are: a mortgage debt to Westpac over the Bondi apartment in the sum of $156,635.00 for the repayment of which she is solely responsible; an NAB Visa Card debt of $22,777; an ANZ Visa Card debt of $11, 282; and, a debt to a Mr Peter Wise of $27,000.

203. Mrs Barlevy has a modest income. Her only source of income at this time of her life is the aged pension, which is paid to her at the rate of $552.00 per fortnight. She says that she is unable to work as a domestic assistant any more. I accept that she is not capable of such work. The aged pension is likely to be her only source of future income.

204. Mrs Barlevy suffers from lower back and hip pain and she tires easily as a result. I accept her evidence about this disability. I find that within the foreseeable future she will herself probably require some assistance in carrying out domestic chores about her apartment. She takes three medications daily for various medical conditions, including medication to control her blood pressure. In addition to her ordinary household expenses, the cost of this medication is $15.00 per month.

Adequacy of the Provision

205. Dr Rotkopf made some small provision for Mrs Barlevy during her lifetime but none was made for her out of his estate. The provision made by way of gifts to Mrs Barlevy during Dr Rotkopf's lifetime was not of a size that allowed her to accumulate any assets so as to be weighed against her present claim. From time to time Dr Rotkopf gave Mrs Barlevy money to allow her to make regular mortgage payments to Westpac, when she was short of money. Apart from that, the money he gifted to her was measured at the level of domestic service wages and was only sufficient to meet their joint household expenses. These payments were not enough for her to save and provide for her future. Mortgage payments have been a substantial drain on her resources.

206. I accept Mrs Barlevy's account of her present accommodation situation. Her daughter Golda has a three-year-old child Liam. They live in the two-bedroom Bondi apartment. Mrs Barlevy says that the Bondi apartment is too small for the three of them. That is why she is still living in Kingsford. I accept that her daughter is not presently working full time with such a young child and that her daughter cannot presently be relied upon to assist with meeting mortgage commitments on the Bondi apartment.

207. There is no evidence that Mrs Barlevy spent excessive sums of money that have not been accounted for. On the contrary the evidence as to Mrs Barlevy's modest assets and as to her way of life are a strong basis themselves to infer, and I do, that Dr Rotkopf did not make substantial provision for her during her lifetime beyond what the evidence of payments to her shows. The lack of any provision for her out of the estate is inadequate for her proper maintenance, education and advancement in life. She still only possesses a motor vehicle, which is 20 years old. She has not been able to accumulate any jewellery or other precious personal items. She has no superannuation or life insurance. In short she has not been able to accumulate any fund to protect her against life's adverse contingencies, let alone provide for some of life's small comforts. This is not entirely surprising. She has worked in unskilled and fairly low paid domestic occupations all her life. Her priorities are focussed on the support of her children and grandchildren.

208. She claims that her immediate needs show that the lack of provision for her out of the estate is inadequate for her maintenance and advancement in life. I accept her case as to this.

209. Through her counsel Mr Confos, Mrs Barlevy describes her immediate needs reasonably. I accept her evidence as to her current financial situation and make the following findings about her needs. She has the continuing anxiety of meeting the monthly mortgage payments for her daughter and herself to keep the Bondi apartment. She needs a new car as her car is not reliable and is costing money on repairs. To stabilise her financial situation she needs to pay off the credit card debts and the debt to Mr Wise. I accept that the Bondi apartment is too small for herself, her daughter Golda and her grandson Liam and that she needs a residence of her own. Mrs Barlevy presently has no financial capacity to take a holiday for pleasure or to broaden her horizons. The lack of life insurance and superannuation means that she has no funds to meet the unexpected contingencies of life. She will also have to balance her household budget in the future, something she is only barely able to do now.

What provision should be made?

210. The appropriate order for provision that should be made out of Dr Rotkopf's estate in Mrs Barlevy's favour is to be inferred from her financial needs.

211. First provision for Mrs Barlevy should include a sum sufficient to pay out the mortgage on the Bondi apartment. She owes $156,633 to Westpac in relation to this property. Provision should also be made for a separate residence for her. It is not inconsistent for both of these to be provided for. Mrs Barlevy is very short of funds to which she can have resort to meet contingencies or to supplement her income. The Bondi apartment is a potential source of income for her in the future, if her daughter Golda goes elsewhere or, when her daughter is more financially secure her daughter may be able to pay her an occupation fee. Since the trial some payments would have been made on this mortgage, so an allowance of $150,000 for this is appropriate.

212. Second, provision for Mrs Barlevy should include a fund to assist in the purchase of a new motor vehicle. Mrs Barlevy's own health is not good. Requiring her to take public transport, when her present vehicle becomes unusable or uneconomic to run, is likely to test her presently painful medical conditions and add stress to her life. An allowance should be made for a motor vehicle. She has claimed $30,000 which is appropriate on this account. I would allow slightly more so that she can buy a slightly better vehicle that will last her longer and be more comfortable. I would allow her $35,000.

213. Thirdly, provision for Mrs Barlevy should include a sum to pay off all Mrs Barlevy's debts, which are a source of potential anxiety for a person of her age. These debts add to $61,059 (being $22,777 plus $11,282, plus $27,000). Including potential interest charges since the hearing I would allow $65,000 on this account for Mrs Barlevy.

214. Fourthly, Mrs Barlevy wishes to live in her own home in the Eastern suburbs if Sydney, where she has lived all her life. I accept that her advancement in life means that she need not be accommodated in the small two-bedroom apartment in Bondi, in which her daughter and her son Liam could be expected to occupy one each of the two bedrooms. Her advancement in life means that she should live separately if she wishes, and she does. This can be achieved by renting elsewhere. But to require her to negotiate the financial and physical uncertainties of renting for an unlimited period into her old age in my view are not to provide for her proper maintenance and advancement in life. The security of a place of her own choice in the long term will provide for her maintenance and advancement in life. Including stamp duty and legal fees an estimate of $600,000 is given for the provision of such a residence. Her Bondi unit is worth $380,000 (when her and her daughter's interests are aggregated). It is appropriate for her in my view to live in a unit of that approximate value. I would allow $450,000 inclusive of transaction costs. My fixing of this figure also takes into account the benefit she has received already from her occupation of Sturt Street, Kingsford.

215. Fifthly, Mrs Barlevy claims a sum sufficient to go on an overseas holiday in the sum of $20,000. Whether for pleasure or the educational experience of travel, the making of allowance for a holiday or holidays is appropriate for Mrs Barlevy's advancement in life. At the age of 69 she can be expected to live many more years and to need the refreshing experience of a holiday from time to time. I would allow $20,000 on this account.

216. Sixthly, Mrs Barlevy claims that a sum of $50,000 is appropriate to meet the unexpected contingencies of life, especially given her poor health and age. Given that her mortgage on Bondi will have been paid off she now has another potential source of supplementary income in the future. So I will allow $30,000 on this account.

217. Finally, Mrs Barlevy submits that an order for provision for her should include an annual sum sufficient to provide for her ongoing annual medical expenses, car running expenses, property outgoings and maintenance (of any property she were to purchase), household and living expenses and domestic assistance. She estimates these future expenses. Her estimates are the following:-

Medical Expenses	$2,500
Car running Expenses	$3,000
Property Outgoings and Maintenance	$3,500
Household and Living Expenses	$8,000
Cost of Domestic Assistance	$5,200
TOTAL	$22,200

218. But she earns an age pension at present of $552.00 per fortnight or $14,352 per annum. The award of these sums annually would probably reduce her existing pension entitlements but the amount of this effect is uncertain. She is also able to economise on these estimates in my view. I would reduce this claim to zero on the basis that Mrs Barlevy will have some funds available from her contingencies fund and from turning her interest in the Bondi unit to account for her benefit.

219. Thus the total amount that should be provided from the estate for Mrs Barlevy:-

(1) Mortgage on Bondi apartment	$150,000
(2) New and replacement motor vehicles	$30,000
(3) Payment of personal debts	$65,000
(4) Cost of acquisition of Residence	$450,000
(5) Fund for overseas holidays	$20,000
(6) Fund for contingencies	$30,000
(7) Fund for future living expenses
TOTAL	$750,000

220. In my opinion an order for provision should be made from the estate by a lump sum in the amount of $750,000. This provision is less than the value of Sturt St, Kingsford at $995,000. Mrs Barlevy should be permitted to stay at Sturt Street, Kingsford for a reasonable period to allow her to purchase alternative accommodation. I would allow not less than two months for this.

221. The estate is not small but it is not large at $2.785 million less costs of these proceedings. There is no evidence led by the defendant of the financial need of Mr Art, Dr Rotkopf's son. In these circumstances the Court can infer that if a beneficiary says nothing as to his or her financial position or other claims on the testator's bounty, then the Court is fairly entitled to assume that the beneficiary has no special claim other than that relationship and that in particular, he or she had adequate resources on which to live: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535.

Conclusions and Orders

222. In the result I have found that the plaintiff Mrs Barlevy is an "eligible person" able to have the benefit of an order for provision under Family Provision Act s 7 out of the estate of the late Abraham Rotkopf. I have found that the provision made in her favour by Dr Rotkopf either during his lifetime or out of his estate was inadequate for her proper maintenance, education and advancement in life. I conclude on the evidence that provision ought be made in favour of Mrs Barlevy in the sum of $750,000.

223. Pursuant to Family Provision Act ss 7 and 11, I will order the provision of a lump sum of $750,000 in the plaintiff's favour out of the estate of the late Abraham Rotkopf. The usual costs orders in these circumstances would allow the plaintiff's and the defendant's costs of these proceedings out of the estate. I direct the parties to bring in short minutes of order to give effect to these reasons, including providing for the plaintiff's continued residence in Sturt Street, Kingsford for a reasonable further period.

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Amendments

31 May 2011 typographical errors Paragraphs: 1, 66, 68