Barnard v Heptinstall - [2024] WASC 436

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BARNARD -v- HEPTINSTALL [2024] WASC 436
CORAM:   HOWARD J
HEARD:   5, 6 7 AND 12 NOVEMBER 2024
DELIVERED          :   25 NOVEMBER 2024
PUBLISHED           :   25 NOVEMBER 2024
FILE NO/S:   CIV 1481 of 2023
BETWEEN:   TRAVIS PAUL BARNARD
Plaintiff

AND

MARGARITE LINDA HEPTINSTALL as administrator of the estate of KIMBERLY MARGARET HEPTINSTALL
First Defendant

MARGARITE LINDA HEPTINSTALL as beneficiary of the estate of KIMBERLY MARGARET HEPTINSTALL
Second Defendant

NEIL ARTHUR CARTER as beneficiary of the estate of KIMBERLY MARGARET HEPTINSTALL
Third Defendant

BENJAMIN ERIC HEPTINSTALL as beneficiary of the estate of KIMBERLY MARGARET HEPTINSTALL
Fourth Defendant

DANIEL NEIL HEPTINSTALL as beneficiary of the estate of KIMBERLY MARGARET HEPTINSTALL
Fifth Defendant

Catchwords:

Whether de facto relationship subsisted for two years immediately prior to deceased's death - Whether plaintiff has an entitlement to the intestate estate - Turns on own facts

Legislation:

Administration Act 1903 (WA) s 15

Interpretation Act 1984 (WA) s 13A

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M Strbac
First Defendant	:	Mr G J Douglas and Ms T M Watson
Second Defendant	:	Mr G J Douglas and Ms T M Watson
Third Defendant	:	Mr G J Douglas and Ms T M Watson
Fourth Defendant	:	Mr G J Douglas and Ms T M Watson
Fifth Defendant	:	Mr G J Douglas and Ms T M Watson

Solicitors:

Plaintiff	:	Delta Legal
First Defendant	:	Douglas Lawyers
Second Defendant	:	Douglas Lawyers
Third Defendant	:	Douglas Lawyers
Fourth Defendant	:	Douglas Lawyers
Fifth Defendant	:	Douglas Lawyers

Cases referred to in decision(s):

Britt v Office of the State Coroner [2022] WASCA 75
Mickelberg v Director of the Perth Mint [1986] WAR 365
PES v The State of Western Australia [2014] WASCA 96
Sadiq v NSW Trustees & Guardian [2015] NSWSC 716
Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107
Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16
Tasovac v The State of Western Australia [2015] WASCA 24
The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468

HOWARD J:

Introduction

Kimberley Margaret Heptinstall (Ms Heptinstall) died on 20 July 2019,[1] without leaving a will.[2]
[1] Ex 34 [1].
[2] Ex 34 [2].
Ms Heptinstall did not have any children and never married,[3] and was survived by her parents and two brothers.[4]
[3] Ex 34 [3].
[4] Ex 34 [4].
The plaintiff, Mr Barnard, asserts by an originating summons filed 12 May 2023, that he and Ms Heptinstall were de facto partners within the meaning of s 15 of the Administration Act 1903 (WA).

Facts found

The paragraphs below set out my findings of fact. Where a particular finding has turned on a resolution of contested evidence, I have explained separately my reasons for making the finding which I have.
Her mother, Margarite Linda Heptinstall (Linda Heptinstall), is the administrator of Ms Heptinstall's estate pursuant to a grant of letters of administration dated 13 July 2020.[5] Linda Heptinstall is the first defendant to these proceedings in that capacity.
[5] Ex 34 [5].
The second to fifth defendants are, subject to the resolution of Mr Barnard's claim, entitled to take as beneficiaries from Ms Heptinstall's estate pursuant to the Administration Act. In those capacities:
1.Linda Heptinstall is the second defendant;
2.Neil Arthur Carter, Ms Heptinstall's father, is the third defendant;
3.Benjamin Eric Heptinstall, Ms Heptinstall's brother, is the fourth defendant; and
4.Daniel Neil Heptinstall, Ms Heptinstall's brother, is the fifth defendant.
As will be seen, I have used their first names from here and intend no disrespect in doing so. Also, from here where I refer to the 'defendants', I am referring to the second to fifth defendants. Quite properly, Linda Heptinstall as the first defendant did not actively participate in the trial.
I find Mr Barnard met Ms Heptinstall in about December 2016.[6]
[6] ts 76.
I find Mr Barnard and Ms Heptinstall commenced their relationship at or about the end of January 2017.[7]
[7] The defendants accept the starting point of the relationship was at this point: Defendants' closing submissions 12 November 2024 [3]; ts 78.
I find in about the first week of April 2017, Mr Barnard and Ms Heptinstall travelled to Melbourne to visit part of Mr Barnard's extended family.[8]
[8] Ex 2.31 - 2.35; ts 103.
I find on 27 April 2017, Mr Barnard and Ms Heptinstall signed a lease for a property at Middle Swan to commence on 1 May 2017.[9] Unfortunately, only an incomplete document concerning this lease was in evidence. It did not show, for example, the term of the lease.
[9] Ex 3; ts 79.
Linda Heptinstall gave evidence that Ms Heptinstall moved into a house with Mr Barnard at Bellevue (the difference in suburbs is immaterial) on about 12 June 2017 which was the Monday before Ms Heptinstall had her 30th birthday party.[10] Linda Heptinstall was not challenged in cross‑examination on that evidence.[11]
[10] Ex C [9] - [10].
[11] ts 288.
Mr Barnard's evidence was that he and Ms Heptinstall began living together at about 1 May 2017.[12] Mr Barnard did not accept Linda Heptinstall's recollection of the time they moved in together.[13]
[12] Ex A [4].
[13] ts 147.
There is, then, a conflict of evidence as to when exactly Ms Heptinstall moved into the Middle Swan house.
I do not need, I think, to resolve that conflict. Whether Ms Heptinstall moved in on 1 May or 12 June, I find that by about 1 May 2017, whether or not they were physically living together, there was mutual commitment by them to a shared life. I make that finding in light of their signing the lease for the Middle Swan house together, and their soon to follow engagement.
Ms Heptinstall turned 30 years of age on 23 June 2017. I find that at the party for her 30th birthday,[14] at Linda Heptinstall's house, Mr Barnard proposed marriage to Ms Heptinstall and she accepted. With the exception of Ms Bridle, all of the witnesses in the case were at the party and witnessed both the proposal and the acceptance.
[14] Ex C [11].
I find that them getting engaged at this time demonstrated a mutual commitment by them to a shared life. And that, obviously enough, occurred in front of Ms Heptinstall's family and friends and was made public by them through, amongst other things, Facebook posts.
I find that after their engagement they planned to marry in August 2018.[15] It is unclear from the evidence when that plan was made. However, I find that the plan was made by the first week in October 2017, which reflects Mr Barnard's evidence which was not challenged in cross‑examination.[16]
[15] From Mr Barnard's evidence: ex A [7] that plan was made before the beginning of October 2017. Linda Heptinstall did not know the exact date the plan was made; ex C [20].
[16] Ex A [7]; and I note that Linda Heptinstall gave no different evidence and was identified as one of the people to attend a wedding expo with the couple on 7 October 2017.
In about October or November of 2017, Mr Barnard and Ms Heptinstall moved to Linda Heptinstall's house. Mr Barnard,[17] Linda[18] and Ben Heptinstall[19] gave evidence of the move and said that it was motivated by Mr Barnard and Ms Heptinstall wishing to save money for their wedding. I accept that evidence and find accordingly.
[17] ts 108.
[18] ts 289.
[19] Ex B [11].
I find that Mr Barnard and Ms Heptinstall shared a bed and bedroom while living at Linda Heptinstall's house, in accordance with the evidence of Mr Barnard and Linda Heptinstall.
The defendants submitted that this 'common residence' was different and less indicative of a de facto relationship than their living in the Middle Swan house.[20] The defendants submitted that Mr Barnard and Ms Heptinstall were 'living like children' at Linda Heptinstall's house.[21] The defendants submitted that while the period of co-habitation at Linda Heptinstall's house was not necessarily inconsistent with a finding of a de facto relationship it may be taken into account by the Court under the indicator in s 13A(2)(b) of the Interpretation Act.
[20] Defendants' closing submissions 12 November 2024 [10].
[21] ts 259.
I do not accept those submissions of the defendants as to the period of time at Linda Heptinstall's house.
I find that the nature of their relationship did not change while they were living with Linda Heptinstall. By that, I mean I consider they were still living together with a shared commitment to their future.
Mr Barnard gave evidence that he bought Ms Heptinstall a second‑hand Alfa Romeo car in about February 2018. He adduced into evidence a Facebook post he said Ms Heptinstall made about the car.[22] In cross-examination, Mr Barnard accepted that he had bought that car as part of a 'side hustle' of buying and selling cars (rather than being bought for Ms Heptinstall).[23] His evidence in cross‑examination was that the car broke down a couple of months after it was bought and it had to be sold for scrap.[24]
[22] Exs A [15] and 2.49; ts 100 - 101.
[23] ts 229.
[24] ts 229.
It is unclear whether Ms Heptinstall's post about the Alfa Romeo,[25] if it was genuine at the time, was an ironic post on her part. However, I find that Mr Barnard's evidence‑in‑chief, given the propositions he accepted in cross-examination, was an embellishment on his part to bolster his case.
[25] Ex 2.49.
I find they were both asked to leave Linda Heptinstall’s house by her in about March 2018. I do not consider it necessary to make findings as to exactly why they were asked to leave. I find, however, that Linda Heptinstall was frustrated, very annoyed and upset with the couple at the time.[26]
[26] ts 290.
On 18 March 2018, Mr Barnard and Ms Heptinstall entered into a lease of a house in Balga as tenants.[27] Again, regrettably, only three of nine pages were in evidence before the Court. The term of the lease was 19 March 2018 to 18 March 2019.
[27] Ex 6; ts 108 - 109.
I find that on about 19 March 2018, Mr Barnard and Ms Heptinstall moved into the Balga house together and I find that they continued their life together at that house.
Mr Barnard gave evidence that he and Ms Heptinstall travelled to Adelaide to visit his friend.[28] There were Facebook posts adduced into evidence which showed that trip occurred between about 21 ‑ 24 March.[29] Mr Barnard's evidence was that trip occurred in 2017.[30] I do not accept that evidence as to the year in which the travel occurred. As I found above, Mr Barnard and Ms Heptinstall travelled in the first week of April 2017 to Melbourne and the Facebook posts and Facebook photo albums of that trip adduced into evidence described it as their first trip away. I accept that Mr Barnard and Ms Heptinstall did travel to Adelaide in a March. but I am unable to find whether that occurred in 2018 or 2019. I do not consider that difficulty makes a material difference to any matter I need to resolve in the case.
[28] ts 102.
[29] Exs 14.13 and 14.14.
[30] ts 102.
Linda Heptinstall gave unchallenged evidence that Ms Heptinstall told her in around June 2018 that the wedding was not going ahead.[31] I find Ms Heptinstall made that statement to Linda Heptinstall at about that time.
[31] Ex C [21].
The defendants did not suggest that the statement meant that Ms Heptinstall and Mr Barnard's plans to marry were completely off, rather that they were being postponed. I find that Ms Heptinstall was referring, at that time, to a postponement of the date for the wedding.
On about 10 September 2018, I find that Ms Heptinstall completed a Centrelink form headed 'Income and Assets'.[32] The application listed Mr Barnard as Ms Heptinstall's 'partner' and both Ms Heptinstall and Mr Barnard signed the document. Again, regrettably, only three of the 15 pages of the document were in evidence before the Court.
[32] Ex 10.
Mr Barnard gave evidence that it was a 'joint form' or ‘joint application’.[33] I do not accept that is a proper description of the form. Rather, I find that, as it appears on its face, the document was part of an application made by Ms Heptinstall. I consider this is another example of an embellishment on Mr Barnard's part to seek to improve his case.
[33] Ex A [11]; ts 123, cf ts 124.
Mr Barnard accepted in cross-examination, and I find, that he went to the Philippines in September 2018 for a week's holiday by himself without Ms Heptinstall.[34] At about that time, I find that Mr Barnard posted a photograph of himself in the Philippines on a website named 'Sassy South Singles and Social'.[35]
[34] ts 199 - 200.
[35] Ex 31.
It is common ground, and I find, that Mr Barnard and Ms Heptinstall moved out of the Balga house well before the expiry of the lease (which was to run until 18 March 2019).[36] It is common ground, and I find, that Ms Heptinstall returned to live with Linda Heptinstall, and Mr Barnard went to live with his parents.
[36] Ex A [9]; ts 110.
It is not common ground what the reasons were for those moves, nor exactly when they moved out of the Balga house.
For the reasons I set out below, I find that Ms Heptinstall moved out of the Balga house towards the end of October 2018, and I find her moving out evidenced a change in her relationship with Mr Barnard. By that, I mean, at the time of moving out of the Balga house, she had terminated the marriage-like relationship; was no longer committed to sharing her life with Mr Barnard; and she presented that change publicly.
Mr Barnard adduced into evidence screenshots of Facebook Messenger messages he said were between him and Ms Heptinstall between 21 October 2018 and 11 November 2018.[37] Mr Barnard was cross‑examined on them.[38] Mr Barnard accepted that after Ms Heptinstall died, he deleted her Facebook messenger trail through using her phone.[39]
[37] Ex 14.149 - 14.180.
[38] ts 163 and following.
[39] ts 193 and 199.
My assessment of the messages is that they read as more likely to be passing between two people who were not living together than to be passing between two people living as a couple under the one roof. To put it another way, I am not persuaded that those messages demonstrate, as the plaintiff suggested, that he and Ms Heptinstall remained in an intimate relationship during the period covered by the texts.
In October 2018, I find Ms Heptinstall posted wedding items for sale,[40] including a man's ring which Mr Barnard accepted was to be his wedding ring.[41]
[40] Exs B [19] and 13.
[41] ts 205.
In about October or November 2018, Ben Heptinstall saw a Facebook post from 'Travis Barnard'[42] where 'Travis Barnard' had posted a photo of two dogs and indicated that as he and his 'partner' were not together anymore, he needed to find a home for the younger dog.
[42] Exs B [20] and 26.
Mr Barnard did not accept that he had made that post[43] but accepted that the photo was of the two dogs and couch that he and Ms Heptinstall had, and that the matters stated in the post from 'Travis Barnard' were true at about the time in October or November 2018.[44]
[43] ts 206 and 208.
[44] ts 206 - 207.
I find it implausible that some other unidentified person would have made the post[45] which had a photo of the couch and two dogs which Ms Heptinstall and Mr Barnard had, and which was otherwise correct in content. Rather, I find that the post was made by Mr Barnard.
[45] Ex 26.
I find his non-acceptance that the post was authored by him and his somewhat argumentative responses to the questions about it in cross‑examination[46] was Mr Barnard simply seeking to avoid, what he perceived to be, a difficulty or inconsistency with his case as in that post he referred to a relationship break‑up.
[46] ts 205 – 208.
Just prior to 12 November 2018, I find Mr Barnard entered into a lease for a property at Woodbridge.[47] Only two of the 10 pages of the lease agreement were in evidence before the Court. The lease stated that no more than one person may ordinarily live at the premises.[48]
[47] Ex 15; ts 114.
[48] Ex 15 TB 207 (page 2 of 10).
I find that on 22 November 2018, Mr Barnard made a further post on 'Sassy South Singles and Social'.[49] Mr Barnard accepted that the post was him advertising that he was single and seeking romantic partners,[50] and I so find.
[49] Ex 17; ts 201.
[50] ts 201 and 204.
On 22 November 2018, I find Mr Barnard made a comment on a Facebook group titled 'Singles w.a.'.[51] After a couple of posts exchanged between himself and a woman, Mr Barnard asked if he could 'private message' her. Mr Barnard's evidence was he could not remember whether he went on a date with that woman at that time.[52] One immediately might consider that (and I do), given the on-going relationship he asserted with Ms Heptinstall, that Mr Barnard would remember one way or the other.
[51] Ex 32.
[52] ts 202 - 203.
Mr Barnard accepted, and I find, that in November 2018 he was a member of at least two singles groups on Facebook.[53]
[53] ts 203.
Towards the end of November 2018, Ben Heptinstall googled Mr Barnard's telephone number and found some posts on a website called 'Locanto' and on another website called 'iCracker' and those were adduced into evidence.[54]
[54] Ex 19.
Mr Barnard accepted that the telephone number in the iCracker post was his and accepted that it was his photo and phone number on the Locanto site.
Mr Barnard denied that either post was his advertisement.[55] Notwithstanding Mr Barnard's denial, it seems to me inherently implausible that a third party would have made those posts and included Mr Barnard's telephone number and, for one of them, a photograph. I find it more likely than not that both those posts were made by Mr Barnard.
[55] ts 230 - 231.
The plaintiff submitted, as I understood it, that Mr Barnard's posts on the two singles groups and his advertising, at worst, amounted to infidelity in a committed marriage-like relationship.[56]
[56] Plaintiff’s supplementary submissions 11 November 2024 [11].
That explanation appears to be somewhat inconsistent with Mr Barnard's evidence in cross‑examination that Ms Heptinstall was aware of his advertising.[57] As is set out more fully below, I would not accept that evidence from Mr Barnard as to Ms Heptinstall's awareness without corroboration, of which there was none.
[57] ts 201.
It may be that if these posts and advertisements were the only potentially contrary indicators to the asserted de facto relationship, the plaintiff's submissions, as made, would have more force. However, they form part of the facts I have found occurred in October and November 2018 and must be considered in that context. In short, at the least, they indicate that Mr Barnard was presenting himself to the world as an unattached single.
Following a freedom of information request, Ben Heptinstall obtained copies of Centrelink customer records which were adduced into evidence.[58] Those records showed, and I find, that on 14 or 16 November 2018, Ms Heptinstall contacted Centrelink and changed her address from the Balga address to Linda Heptinstall's address in Mundaring.
[58] Exs B [36] and 24.
Mr Barnard adduced three Facebook posts into evidence[59] which were:
1.a post of his dated 25 December 2018 which had a Christmas message signed off with 'love from Travis & Kim';[60]
2.a post from Ms Heptinstall on 2 January, without a year being stated, which had a number of photographs of Mr Barnard and Ms Heptinstall in which Ms Heptinstall wished Mr Barnard a happy birthday and concluded with 'we get through everything together and I'm loving spending my life with you';[61] and
3.a post of Ms Heptinstall on 25 January, without a year being stated, which referred to them being on a 'dinner date'.[62]
[59] Exs 2.9, 2.10 and 2.11.
[60] Ex 2.9.
[61] Ex 2.10.
[62] Ex 2.11.
The probative value of those Facebook posts will be returned to below.

Although the document was not adduced into evidence, it appeared to be common ground, and I find, that Ms Heptinstall had written a 'Goal Journal 2019', which under the heading of 'relationship goals with Travis [drawn love heart]' included:
Fully move in with Travis by the end of February 2019[63]
[63] ts 210.
As set out below, I find that Ms Heptinstall moved into the Woodbridge house at about the end of February 2019.
On 16 April 2019, I find that Ms Heptinstall completed a new patient form for a GP practice in High Wycombe.[64] In that form, Ms Heptinstall listed Mr Barnard as her next of kin and nominated him as 'partner'. Ms Heptinstall listed Linda Heptinstall as the emergency contact on the form. The form stated that it was of two pages, but only the first page was in evidence.
[64] Ex 18.
On 14 June 2019, I find that Ms Heptinstall filled in a patient registration form for St John of God Midland Private Hospital.[65] That was for an admission on 16 July 2019 (and appears to have been stamped by the Hospital on 17 June 2019). Ms Heptinstall nominated Mr Barnard as her 'Next of Kin/Contact 1' and as her preferred emergency contact. She described him as her 'partner'. Linda Heptinstall was put as 'Contact 2' on the form.
[65] Ex 20.
Linda Heptinstall gave evidence, which I accept, that she questioned Ms Heptinstall as to why she was putting Mr Barnard as her 'Next of Kin/Contact 1'. Ms Heptinstall told Linda Heptinstall that she wanted to give Mr Barnard a chance to care for her.[66]
[66] ts 292.
As recorded above, Ms Heptinstall died on 20 July 2019.
After Ms Heptinstall's death, I find Mr Barnard had access to her mobile phone. I have made separate findings below as to what he did with that mobile phone.
On the evening of 20 July 2019, after Ms Heptinstall's death earlier that day, I find Mr Barnard asked Ms Bridle out for a drink.[67] I have set out Ms Bridle's evidence, which I accept, below. Suffice it to say for present purposes, Ms Bridle was essentially a stranger to Mr Barnard at this time. I find that they spoke again on 23 July 2019 for about one hour and 20 minutes[68] and for 51 minutes on 24 July 2019.[69]
[67] Ex H [7].
[68] Ex H [8].
[69] Ex H [9].
Ms Bridle's evidence, which I accept, was that they did not, in the end, meet or talk further.[70]
[70] Ex H [12] - [14].
On 25 October 2019, I find that Mr Barnard took the following documents to a pharmacy[71] to be certified as true copies; they being the:
(a)Centrelink application made by Ms Heptinstall and dated 10 September 2018;[72] and
(b)St John of God Midland Private Hospital patient registration form dated 14 June 2019.[73]
[71] ts 125 and 142.
[72] Ex 10.
[73] Ex 20.
Initially Mr Barnard was not able to explain why he had the documents certified.[74] It appears from the stamp and certification that at the time he had both the original document (presumably with all of its pages) and a copy to be certified. Later in his evidence, Mr Barnard said that the certification had occurred for a superannuation application.[75]
[74] ts 125.
[75] ts 142.
Mr Barnard gave evidence that the Australian Federal Police raided the Woodbridge house in about June or July of 2020;[76] which I accept. It appears that the Australian Federal Police did not take the certified copies of the documents as Mr Barnard was able to produce them, if only in part, at the trial.
[76] ts 96.
By Indictment IND 1161 of 2022,[77] Mr Barnard was charged with using a mobile phone connected to a telecommunications network to facilitate the commission of an offence against the law of Western Australia, namely fraud, being a serious offence, contrary to s 474.14(2) of the Criminal Code (Cth).
[77] Ex 28.
Following a trial before a jury, Mr Barnard was convicted in the District Court of Western Australia at Perth and on 7 June 2024 was sentenced by MacLean DCJ. The defendants sought to tender the sentencing remarks, which is a matter I return to below.
MacLean DCJ imposed a sentence of three years and 10 months' imprisonment and made Mr Barnard eligible for parole.
By an appeal notice in CACR 60 of 2024 filed 13 June 2024, Mr Barnard has sought leave to appeal against the sentence.[78]
[78] Ex 30.
By an appeal notice in CACR 61 of 2024 filed 13 June 2024, Mr Barnard has sought leave to appeal against the conviction.[79]
[79] Ex 29.

Assessment of the plaintiff as a witness and his evidence

Mr Barnard gave his evidence by a witness statement.[80]
[80] Ex A.
In accordance with orders I made before the trial, that would have stood as his evidence-in-chief. However, given that his witness statement was poorly prepared, in that it was not properly detailed and was conclusionary in many aspects, I allowed significant further oral evidence-in-chief.
For the reasons I set out below, I consider that Mr Barnard was an unsatisfactory witness and I do not accept his evidence unless it is clearly corroborated by contemporaneous documents (which I accept), or by another's evidence, or was an admission against his interests.
I have made some findings above of where I consider that Mr Barnard sought to embellish certain matters to assist his case. I have further assessed the plaintiff as a witness under the following:
1.his explanation for why he and Ms Heptinstall moved out of the Balga house;
2.his use of Ms Heptinstall's mobile phone after her death;
3.the screenshots taken of Facebook posts;
4.the partial or incomplete documents he adduced into evidence; and
5.his conviction earlier this year.

The move from the Balga house

Mr Barnard's evidence was that both he and Ms Heptinstall moved out of the Balga property on or around 3 November 2018 and started to live together again on 12 November 2018 at the Woodbridge address [81]
[81] Ex A [9]; ts 110.
There is an immediate implausibility in the evidence Mr Barnard gave in his witness statement which arises from his statements that:[82]
1.he and Ms Heptinstall moved out of the Balga address on 3 November 2018 because of 'financial difficulties'; and
2.they stayed at their respective parents' houses 'until we could afford a new rental together' which was the Woodbridge house via a new lease signed by 11 November 2018[83] (i.e. only a week later).
[82] Ex A [9].
[83] ts 114.
It was not explained in Mr Barnard's evidence-in-chief how that short period assisted in resolving any financial difficulties nor how it resulted in them being able to 'afford a new rental together'. The matter was not explored in cross-examination.
I also accept the force of the defendants' criticism of this evidence on the basis that Mr Barnard took the trip to the Philippines not long before Ms Heptinstall left the Balga house but could not explain how he paid for it,[84] nor what work he was doing at the time.[85] If financial matters were front and centre then one might, quite reasonably, have expected Mr Barnard to be able to answer those questions.
[84] ts 162.
[85] ts 162.
In these circumstances, I consider the plaintiff's evidence on the moving out of the Balga house was unconvincing as it appears to be inherently implausible.

Ms Heptinstall's mobile phone after her death

After Ms Heptinstall died, Mr Barnard used her PIN to log in to her phone and used a saved password to log in to her bank accounts, emails and applications.[86]
[86] ts 148.
Mr Barnard agreed that he then attempted to conceal that conduct by deleting applications, her Facebook messenger feed and logging out of her emails.[87]
[87] ts 159, 193 and 199.
Mr Barnard was asked why he had made deletions to Ms Heptinstall’s phone after her death and before it was returned to her family.[88] It is not reflected in the transcript, but Mr Barnard paused for an appreciably lengthy time, before he answered to the effect that there were things on the phone that Ms Heptinstall would not have wanted her family to see.[89] Mr Barnard did not say what those things might have been. His delay appeared to me to be him considering what answer he might give to advance his case. His answer was not persuasive in the circumstances.
[88] ts 198 – 199.
[89] ts 244.
By reference to the sentencing remarks, I have admitted into evidence below, it is also a fact that Mr Barnard (through Ms Heptinstall's phone and saved login details) accessed her superannuation account and changed the beneficiary to himself.
Some time before Ms Heptinstall's funeral, Ben Heptinstall arranged for Ms Heptinstall's mobile phone to be retrieved and later sent it away to be forensically examined.[90]

The screenshots of Facebook posts

[90] ts 278.

Mr Barnard adduced a number of Facebook posts into evidence.[91] Mr Barnard gave evidence that these were:
… copies of our Facebook posts and photographs, as a couple, between 31 January 2017 and 13 July 2019.[92]
[91] Exs 2.9 - 2.29, 2.36 - 2.50, 2.54 - 2.66, 2.68, 2.79 - 2.82, 2.98, 2.101 - 2.102 and 2.109.
[92] Ex A [14].
Mr Barnard gave further evidence about the production of these posts; that:
1.they were screenshots he had taken on his phone;[93]
2.he had taken the screenshots after Ms Heptinstall's death;[94]
3.he printed the screenshots from his phone at Officeworks;[95] and
4.the screenshots and prints of them were made before June or July 2020.[96]
[93] ts 97.
[94] ts 97.
[95] ts 97 - 98.
[96] ts 100.
Mr Barnard gave evidence that the Australian Federal Police currently had his phone from which the screenshots had been printed.[97]
[97] ts 98.
Mr Barnard's evidence was that when his current partner tried to log into his Facebook account a couple of weeks before (the trial) she was not able to do so as his account looked like it had been hacked.[98]
[98] ts 96.
The defendants accepted that the Facebook posts which were part of exhibit 2 were admissible as evidence of screenshots taken by Mr Barnard some time after Ms Heptinstall's death but were not evidence of authentic posts publicly posted by Mr Barnard or Ms Heptinstall.[99]
[99] Defendant's submissions on admissibility dated 6 November 2024 [25].
It is also relevant to note that Mr Barnard admitted that after Ms Heptinstall's death he logged into her Facebook account, including its Messenger application, and then logged out of the account with the effect that it could not be opened or accessed further. That is, at the date of trial, there was no way to log into Ms Heptinstall's Facebook account and Mr Barnard said there was no way to log into his own Facebook account. So, it appeared, that there was no way of verifying whether the screenshots accurately represented posts made on either Mr Barnard's or Ms Heptinstall's accounts at about the date that the screenshots displayed.
My examination of the screenshots tendered showed some of them not to include the year in the respective 'date stamp'; or to be blown up to a degree where the whole of what might have been a post could not be seen; or they appeared to be cut off images.
In all of the circumstances, I am not persuaded that the screenshots taken by Mr Barnard reliably show what was on Ms Heptinstall's or Mr Barnard's account at the time that Mr Barnard contends for.
The defendants adduced into evidence exhibit 33 which was a 'memorialised' Facebook account of Ms Heptinstall. The unchallenged evidence was that after Ms Heptinstall's death, Ben Heptinstall made an application to Facebook to, effectively, freeze her account.[100]
[100] ts 267 – 268.
The defendants sought to contrast the posts and the profile pictures in the memorialised account with the screenshots which Mr Barnard adduced into evidence. The proposition which was put, in cross‑examination[101] and closing submissions,[102] was that prior to the creation of the memorialised account Mr Barnard had altered Facebook posts by logging into Ms Heptinstall's account and had then screenshotted some of those to produce the bundle he adduced into evidence and for his case. That was denied by Mr Barnard.[103]
[101] ts 219 and following.
[102] Defendants’ closing submissions 12 November 2024 [66(a)(iii)] and [68(b)]; ts 217 – 220 and 258.
[103] ts 218 - 219.
Neither side sought to adduce any expert evidence as to how Facebook, relevantly, worked.
In all of the circumstances, I am not able to make a finding that Mr Barnard did alter Facebook posts in the way contended for by the defendants. However, the differences between the memorialised Facebook account and the screenshots which Mr Barnard adduced into evidence contribute to my lack of persuasion or confidence that I can accept the Facebook screenshots as being reliable copies of what was on Ms Heptinstall's or Mr Barnard's account at the relevant time.
Apart from adding to the concerns I express below as to Mr Barnard seeking to adduce only those documents which might be thought to support his case, most of the Facebook posts do not assist me with the resolution of what I consider to be the central factual question: what was the status of Ms Heptinstall and Mr Barnard’s relationship between October 2018 and February 2019?
There are three documents which, however, do fall within that time period. Those three screenshots were set out in paragraph [55] above. Because of the reservations I have as to the reliability of the screenshots Mr Barnard adduced and my determination of his unreliability as a witness, I am not persuaded that the screenshots reflect Facebook posts actually made at the time of the dates they bear.
Further, and in any event, even if I were to accept the reliability of those three screenshots and take them into account in my assessment of the relationship between October 2018 and February 2019, I would not reach a different conclusion from that which I have set out below.

The adducing of partial or incomplete documents

There was no order made for the parties to give general discovery. Rather, orders were made that each party was to notify the other as to the documents which they intended to tender at trial.
Some of the documents adduced by the plaintiff were not adduced in full (for example, the three lease agreements and Ms Heptinstall's Centrelink application). While other series of documents appeared to be produced only for limited date ranges (for example the Messenger conversations adduced between October and November 2018 and the Telstra invoices - considered below).
Some of the partial documents appear to have been copied and the copies verified by the pharmacy (as set out in paragraph [66] above) which made the non-adducing of the whole of the document into evidence more difficult to understand.
Further, although the plaintiff claimed that he and Ms Heptinstall shared their financial obligations during the period he asserts they were a de facto couple, documents that one may have imagined Mr Barnard would be able to produce (for example, his bank statements, credit card statements, and invoices of utilities which were in his name) were not produced at all.
Those matters, together with the Facebook posts which Mr Barnard adduced into evidence by way of screenshots (and which I discussed above) left me with the distinct impression that the plaintiff was selective in the documents he adduced into evidence at the trial. That, to my mind, raised the real prospect that Mr Barnard was seeking to only present documents which he considered supported his claim and that has caused me to approach those documents with care and scepticism.

The plaintiff's conviction

The defendants sought to tender the sentencing remarks of MacLean DCJ, which was opposed by the plaintiff.
Over the plaintiff's objection, I have allowed the sentencing remarks made 7 June 2024 to be taken in as exhibit 26.[104]
[104] These were at TB 293 - 308.
However, I have admitted them in full for context only. I would allow into evidence the following facts found by the sentencing judge as follows:
1.the plaintiff has been convicted of one offence contrary to s 474.14(2) of the Criminal Code (Cth) by using a mobile phone to facilitate the commission of a serious offence against the law of Western Australia, namely fraud;[105]
2.following Ms Heptinstall's death, the plaintiff used her phone which had automatic log in credentials saved;[106]
3.the plaintiff used Ms Heptinstall's phone to access her superannuation account via the Rest application to replace the non-binding beneficiary (which was her estate) with himself;[107]
4.Mr Barnard used Ms Heptinstall's phone to make multiple transfers between her bank accounts and withdrew amounts of cash using her bank cards;[108]
5.the plaintiff deleted the Westpac and Rest applications from the phone and signed out of Ms Heptinstall's email account prior to giving the phone back to the family;[109] and
6.the intent in his offending was to improve his chances of becoming the beneficiary of the superannuation fund and represented a cold-hearted and calculated breach of trust.
[105] I did not understand this fact was disputed by the plaintiff: especially since, as found, he has commenced an appeal against conviction.
[106] Note that at ts 148, the plaintiff accepted that he had done so.
[107] The plaintiff continued to deny that he had logged into Ms Heptinstall's phone and used the saved password to her superannuation account: ts 148.
[108] Mr Barnard accepted in cross-examination that he had done so: ts 158.
[109] The plaintiff accepted that he may have deleted evidence from Ms Heptinstall's phone that he had undertaken the banking transactions and had deleted emails and logged out of her email account: ts 159.
As noted, some of these matters were admitted by Mr Barnard in cross examination.[110]
[110] ts 148, 159.
Those findings were made by the sentencing judge beyond reasonable doubt. They established that following Ms Heptinstall's death, Mr Barnard acted dishonestly (fraudulently) to gain from her estate.
The plaintiff objected, as I understood it, to any of the sentencing remarks being taken into evidence. As I understood it, the objection was made on the following bases:
1.the sentencing remarks represented no more than the opinion of the sentencing judge who was not available for cross‑examination;
2.both the conviction and the sentence were under appeal and so could not be treated as final; and
3.nothing in the sentencing remarks were relevant to an issue at (this) trial.
As may be seen, most of the 'facts' which the defendants sought to draw from the sentencing remarks were admitted by the plaintiff in the course of this trial.
In those circumstances, the importance of those parts of the sentencing remarks I have admitted may be thought, immediately, to be reduced.
In any event, I do not accept that a sentencing judge does nothing more than provide their 'opinion' as to the facts on which they are to sentence. I understand the law to be applied is as stated by McLure P in PES v The State of Western Australia:[111]
… Where the offender to be sentenced has been found guilty following a trial by jury, the judge who presided at trial must determine the facts relevant to the sentencing process. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the sentencing judge who must find the facts rather than speculate about the facts that may or may not have been found by the jury. It is only the facts necessarily implicit in the verdict of guilty after trial (the core facts) that cannot be controverted in the sentencing process. The verdicts do not establish the non‑core facts, which must be found by the sentencing judge. Where a non‑core fact is aggravating, the judicial finding must be on the criminal standard of beyond reasonable doubt.[112]
[111] PES v The State of Western Australia [2014] WASCA 96.
[112] [2014] WASCA 96 [37] (citations omitted); see also Tasovac v The State of Western Australia [2015] WASCA 24 [129] and The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468 [171].

I understand that is what the sentencing judge did in the findings I have admitted.
Here, the plaintiff did not complain that the sentencing judge had made findings which were outside of the jury verdict or which were not found beyond a reasonable doubt.
I consider that the facts found by the sentencing judge (which I have admitted) and which form the basis on which they sentenced the plaintiff have for relevant purposes an equivalent position to the fact of the jury's verdict on the charge.
The fact of the conviction on the basis of the charge in the Indictment above says, unsurprisingly, next to nothing as to the circumstances of the offending.
In Mickelberg v Director of the Perth Mint[113] Burt CJ held:
… that it is open to the Director in this case to plead and to prove the convictions and that when proved they are evidence, while not conclusive, that the appellants obtained the gold as charged in the indictment.[114]
[113] Mickelberg v Director of the Perth Mint [1986] WAR 365 (Mickelberg).
[114] Mickelberg, 371.
When the Mickelberg case was being discussed with the plaintiff's counsel, they made it plain that the plaintiff did not intend to lead any evidence to contradict the verdict (and clearly some of the facts I admitted were admitted by the plaintiff in the trial).
On Burt CJ's approach, if I am correct about the equivalent position of sentencing remarks, the facts found by the sentencing judge can be admitted.
Quinlan CJ recently returned to the question in Smargiassi Nominees Pty Ltd v Shire of Collie (Smargiassi Nominees).[115] In turn, the Chief Justice was applying an earlier Court of Appeal decision in Smargiassi Nominees Pty Ltd v Shire of Collie.[116] The Chief Justice took the relevant principles as being that:
1.a party is not permitted to controvert an earlier conviction;[117]
2.the principle of incontrovertibility is a particular application of the Court's power to prevent an abuse of process;[118] and
3.save for exceptional circumstances, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial.[119]
[115] Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16 (Smargiassi Nominees).
[116] Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107.
[117] [2024] WASC 16 [187] (citations omitted).
[118] [2024] WASC 16 [190] (citations omitted).
[119] [2024] WASC 16 [191] (citations omitted).
The principles which the Chief Justice summarised in the Smargiassi Nominees case seem to me to be equally applicable to facts found by a sentencing judge and on which the offender has been sentenced.
Accordingly, I have admitted those parts of the sentencing remarks identified above into evidence.
As noted above, the plaintiff in his evidence-in-chief gave evidence that he and Ms Heptinstall shared access details to each other's banking PIN’s and online passwords.
The finding made by the sentencing judge at paragraph [109] above contradicts that and so, in my judgment, was a relevant fact going to a matter the plaintiff raised in his case, no doubt to demonstrate the marriage-like relationship he said he shared with Ms Heptinstall.
Further, the fact and circumstances of the conviction plainly go to the plaintiff's conduct in relation to Ms Heptinstall's estate and are relevant in my judgment as to the plaintiff’s assertions in this case and to his credibility on central issues.
Accordingly, I do not find that the evidence of the facts from the sentencing remarks is irrelevant to matters in dispute.
Nor do I consider that I can treat the conviction or sentence as otherwise than final. They are in no way provisional pending the respective appeals.
Admitting those matters into evidence showed Mr Barnard in a particularly unfavourable light in seeking to advance his own interests over Ms Heptinstall's estate. I consider that unfavourable light continues over the evidence in this case.
I commenced this section with the conclusion that Mr Barnard was an unsatisfactory witness and that I did not accept his evidence, except in some limited circumstances. That is the result of my conclusions that he sought to embellish certain matters and the above five matters which, in my judgment, threw very considerable doubt on the plaintiff's truthfulness and reliability.

The approach to take to the plaintiff's credibility

The defendants submitted, by reference to Sadiq v NSW Trustees & Guardian[120] and the authorities cited therein, that, in effect, a plaintiff in Mr Barnard's position should have their evidence scrutinised by a court with particular caution. (Indeed, one of the cases went so far as to say that the court should approach their story with suspicion).[121] That is because:
1.the facts alleged by the plaintiff depend for proof very largely on their own evidence;
2.the self‑interest of the claimant to give evidence favourably to their case is obvious; and
3.it is impossible to know what the deceased would say about the evidence, including of conversations.
[120] Sadiq v NSW Trustees & Guardian [2015] NSWSC 716.
[121] Thomas v The Time Book Co [1966] 2 All ER 241; [1966] 1 WLR 911, 916; quoted in Sadiq [121].
Without the benefit of those authorities, I consider that because of the matters I have identified above going to the plaintiff's reliability and credibility, at the least, I should approach his evidence with great care and subject it to particular scrutiny. The authorities cited to me reinforce that approach.
Mr Barnard gave evidence that he and Ms Heptinstall shared living expenses from at least 1 May 2017 until her death.[122] That evidence is entirely uncorroborated and I do not accept it.
[122] ts 80 - 81.
In any event, even if that evidence was true for the period before Ms Heptinstall moved out of the Balga house and after she moved into the Woodbridge house, I specifically would not accept the evidence of shared living expenses when they were living in separate houses between October 2018 and February 2019.
Mr Barnard gave evidence that they shared online banking passwords to their separate accounts and used those to pay living expenses.[123] I do not accept that evidence. It is inconsistent with the facts found by the sentencing judge and with Mr Barnard's concessions in cross‑examination.[124]
[123] ts 88 - 89.
[124] ts 148.
Rather, it appears that, and I find, Mr Barnard had access to Ms Heptinstall's phone after her death as set out elsewhere and used her saved login credentials within her phone to access her bank accounts and make transfers.
Mr Barnard gave evidence that they shared the costs of the Telstra account. (I return to these invoices below). There is no corroboration of that, and I do not accept it.

Other documents the plaintiff relies upon

Centrelink cards

Leaving aside the documents I have already dealt with in the factual findings above, the plaintiff relied on Mr Barnard’s and Ms Heptinstall's Centrelink cards which named each other on 'their' card. Mr Barnard's card[125] said that it started on 13 February 2018 and had the Woodbridge address. Ms Heptinstall's card[126] had the Balga address and started on 17 September 2018.
[125] Ex 4.
[126] Ex 12.
I do not consider that either card is of much assistance in considering the principal issue in the case which was the status of their relationship in the October 2018 to February 2019 period.

Telstra account and invoices

The plaintiff adduced a bundle of monthly Telstra invoices with issue dates commencing 19 December 2018[127] and ending 19 September 2019.[128]
[127] Ex 16 TB 236 – 238.
[128] Ex 16 TB 208.
Mr Barnard gave evidence that he and Ms Heptinstall maintained a joint account with Telstra for their mobile phones and internet.[129]
[129] Ex A [12].
I accept that the Telstra invoices which were adduced into evidence show that both Ms Heptinstall's and Mr Barnard's mobile phones and a home internet service were on the one account.
The Telstra invoices were for a confined period, and it is not possible to determine from them when and at what address that account started.
Nor is it possible, from the accounts, to determine how, and by whom, they were paid. Indeed, a number of them showed overdue amounts owing and the plaintiff accepted that the account was cancelled after Ms Heptinstall's death and he did not pay the not insignificant balance owing.[130]
[130] ts 214.
Mr Barnard's evidence of how the address on the account came to be the Woodbridge address was unsatisfactory. He accepted that the account had been operative at a time before he commenced the lease at the Woodbridge house but was unable to say how the Woodbridge address came to appear on the Telstra invoices.
Mr Barnard was cross-examined as to how his name came to be on the last of the invoices which was dated 19 September 2019.
His evidence to the effect that his name was included, somehow, by a Telstra employee without his asking for it was unpersuasive.[131]
[131] ts 212 - 213.
The invoices were produced, Mr Barnard said, by him logging into Ms Heptinstall's email account and then printing, some of, the invoices.[132]
[132] ts 239.
That explanation raises, again for me, the sort of reservations and concerns that I expressed above about Mr Barnard producing select documents which he considered would advance his case. That is especially so, as he accepted,[133] that by logging out of Ms Heptinstall's email address after her death, the emails and invoices could not be verified independently.
[133] ts 239.
In all of the circumstances, I do not find the Telstra invoices to be persuasive evidence of Mr Barnard and Ms Heptinstall sharing living expenses nor as being particularly probative towards their having a shared life together, particularly for the period of October 2018 to February 2019.
Mr Barnard gave evidence that both of them were paying the Telstra bills.[134] This was uncorroborated by any other document and for the reasons I have expressed elsewhere, I reject Mr Barnard's evidence on this matter.
[134] ts 83.

Defendants' witnesses and their evidence

Benjamin Heptinstall

Ben Heptinstall gave his evidence by a witness statement,[135] supplemented by short oral evidence-in-chief. I have referred to his evidence, where probative, elsewhere in these reasons.
[135] Ex B.
His evidence was not significantly challenged, if at all, in cross‑examination.
He gave his evidence in a careful way and was perfectly candid in accepting in cross‑examination the limits of his knowledge and observations. It did not appear to me that he sought to embellish any of his evidence.
I have no hesitation in accepting him as both truthful and reliable as to all of the evidence he gave.

Linda Heptinstall

Linda Heptinstall gave her evidence by a witness statement,[136] supplemented by some short oral evidence-in-chief.
[136] Ex C.
Whatever feelings Linda Heptinstall may have towards Mr Barnard, in my assessment, she gave her evidence in a candid and straight-forward way. There was nothing in her evidence which suggested to me that her feelings towards Mr Barnard coloured her evidence.
Although her evidence was not significantly, if at all, challenged in cross‑examination, she gave candid answers and accepted the limitations of her knowledge in cross-examination.
I have no hesitation in accepting her evidence in full.

Daniel Heptinstall

Dan Heptinstall gave his evidence by a witness statement.[137]
[137] Ex D.
Dan Heptinstall's evidence was, appropriately, in quite a narrow compass and was not significantly challenged, if at all, in cross‑examination.
He was perfectly candid in accepting the limits of his knowledge and observations in cross‑examination.
I have no hesitation in accepting him as both truthful and reliable as to all of the evidence he gave. I have referred to that, where probative, elsewhere in these reasons.

Karlene Quijano

Ms Quijano was a close friend of Ms Heptinstall and gave her evidence by a witness statement,[138] supplemented by some short oral evidence‑in‑chief.
[138] Ex E.
Ms Quijano materially gave evidence that:
1.she spoke with Ms Heptinstall most days and saw her frequently;[139]
2.even though she saw Kimberley very frequently, she only met Mr Barnard on four occasions;[140]
3.when she did see or hear Mr Barnard (through the Bluetooth connection in a car) he was rude and offensive towards Ms Heptinstall;[141] and
4.Ms Heptinstall told Ms Quijano some time in the second half of 2018 that she had ended her engagement with Mr Barnard.[142]
[139] Ex E [3].
[140] Ex E [6].
[141] Ex E [6].
[142] Ex E [11].
Ms Quijano was not heavily cross‑examined on her evidence and readily accepted in cross-examination the limits of her knowledge and observations.
She did not appear to me to embellish any of her evidence and appeared to be a candid and straight‑forward witness.
I have no hesitation in accepting her as a truthful and reliable witness as to the evidence she gave.

Linda Bergin

Ms Bergin is a long-term family friend of the Heptinstalls and had known Kimberley for about 30 years. She gave her evidence by a witness statement,[143] supplemented by some short oral evidence‑in‑chief.
[143] Ex F.
Materially, Ms Bergin gave evidence that in or around October 2018 she became aware that Ms Heptinstall had moved back to Linda Heptinstall's house without Mr Barnard.[144]
[144] Ex F [7]; ts 324.
On occasions, it appeared that the cross-examiner and Ms Bergin may have been at cross-purposes and some questions had to be asked of Ms Bergin more than once. However, I do not consider that was the result of her being a difficult witness. To my observation, she was candid and answered the question that she thought, reasonably enough, she was being asked.
Although her evidence on the material matters is quite limited (through no fault of her own) I have no hesitation in accepting her as both truthful and reliable as to the evidence she materially gave.

Michel Bartier

Mr Bartier is a friend of the Heptinstall family and knew Ms Heptinstall for most of her life. He gave his evidence by a witness statement.[145]
[145] Ex G.
Mr Bartier's evidence was not significantly, if at all, challenged in cross‑examination. He gave candid and straight‑forward answers which accepted the limitations of his knowledge in cross-examination. I have no hesitation in accepting his evidence in full.
Materially, Mr Bartier gave evidence that he went to Linda Heptinstall's house around Christmas 2018 where there was a small gathering of people. Linda Heptinstall said words to him to the effect that Ms Heptinstall and Mr Barnard had broken up.[146]
[146] Ex G [14]; ts 333.
Taking that as being evidence only that Linda Heptinstall said it, it is evidence that was Linda Heptinstall's belief or understanding at that time. That would go, only, to the factors in s 13A(2)(i) of the Interpretation Act.

Brenda Bridle

Ms Bridle did not know Ms Heptinstall and had not met Mr Barnard face to face. She gave her evidence principally by a witness statement.[147]
[147] Ex H.
I consider that she was an independent witness who gave her evidence in a candid and straight‑forward manner.
Ms Bridle met Mr Barnard through a business Facebook page which he was operating.
As noted in my factual findings above, her evidence principally went to her discussions with Mr Barnard on 20 and 23 July 2019.
Her evidence was not materially challenged in cross‑examination, and I have no hesitation in accepting it in full. In the result, her evidence was not of assistance to me in determining the case. That of course was no fault of hers.

Principal factual matters in dispute

The principal issues in dispute between the parties are:
1.when did Ms Heptinstall move out of the Balga house and what was the significance of Mr Barnard and Ms Heptinstall moving out of the Balga property and separately to their respective parents' houses;
2.when did Ms Heptinstall move into the Woodbridge property with Mr Barnard; and
3.whether there was any change to their relationship in the October 2018 to February 2019 period.

Leaving the Balga house

Linda Heptinstall's unchallenged evidence was that in October 2018, Ms Heptinstall asked if she could return to live with her (Linda Heptinstall).[148]
[148] Ex C [23].
Linda Heptinstall gave unchallenged evidence that a day or two before her birthday in 2018, she and Ms Heptinstall went to Rottnest together.[149] She identified, from Ms Heptinstall's memorialised Facebook account,[150] photographs at or on the way to Rottnest posted, it appeared, on 27/28 October 2018.
[149] ts 286 - 287.
[150] Ex 33.
Her oral evidence-in-chief, which was not challenged, was that Ms Heptinstall had moved in with her the week prior 'or something like that' to the Rottnest trip.[151]
[151] ts 287.
Linda Heptinstall gave unchallenged evidence that when Ms Heptinstall moved back into her house, she brought all of her belongings including clothing, jewellery and heavy furniture.[152]
[152] Ex C [25].
Ben Heptinstall gave evidence which was largely unchallenged that:
1.Ms Heptinstall was at Linda Heptinstall's house consistently between October 2018 and February 2019;[153]
2.in the period between approximately October 2018 and January 2019, he mentioned Mr Barnard's name in conversation with Ms Heptinstall, to which she shrugged and changed the subject and withdrew from the conversation;[154] and
3.consequently, he looked at Ms Heptinstall's Facebook profile and saw that she had removed the reference to her engagement to Mr Barnard.[155]
[153] ts 277.
[154] Ex B [17].
[155] Ex B [18].
Dan Heptinstall gave evidence that towards the end of 2018, including across the Christmas period, Ms Heptinstall had moved back into Linda Heptinstall's' house and he saw Ms Heptinstall and 'all of her belongings' there when he visited.[156]
[156] Ex D [6].
As found above, Ms Heptinstall changed her address from the Balga house to Linda Heptinstall's address on about 14 or 16 November 2018.
In cross-examination, Mr Barnard did not agree that he and Ms Heptinstall had ceased living together in October 2018 rather than November 2018.[157]
[157] ts 162.
Mr Barnard denied that Ms Heptinstall moving out of the Balga house was connected with his trip alone to the Philippines.[158] I do not consider I need to resolve the question of whether the Philippines trip was a causative factor in Ms Heptinstall moving out of the house.
[158] ts 162.
I note here the implausibility I found above in Mr Barnard's account of Ms Heptinstall moving out of the Balga house.
In all of the circumstances, I prefer the evidence given by Linda, Ben and Dan Heptinstall and reject Mr Barnard's evidence on this point.
I find that by no later than 26 October 2018 Ms Heptinstall, at the least, had moved out of the Balga property and had moved into Linda Heptinstall's house.

Moving into the Woodbridge house

There is a significant conflict on the evidence as to when Ms Heptinstall moved into the Woodbridge address.
That conflict is part of a broader conflict as to whether there was a significant change to their relationship that started with Ms Heptinstall moving out of the Balga address up until when she moved into the Woodbridge address.
The defendants contend that even if some romantic relationship continued between Ms Heptinstall and Mr Barnard in this period, it was no longer in the nature of a de facto relationship within the meaning of the legislation.
Linda Heptinstall gave unchallenged evidence that in or around late February 2019, Ms Heptinstall told her she was going to live with Mr Barnard at a house in Woodbridge.[159]
[159] Ex C [28].
Linda Heptinstall further gave evidence that when Ms Heptinstall moved (in late February 2019) she did not take all of her belongings with her and the majority of her personal possessions, including furniture, remained at Linda Heptinstall's house. Ms Heptinstall did take her clothing, toiletries, cosmetics and electronic devices.[160]
[160] Ex C [29] - [30].

I do not accept Mr Barnard's evidence that Ms Heptinstall moved into the Woodbridge house in November 2018. That evidence was not corroborated, in my view, by the Messenger conversations which Mr Barnard adduced into evidence for the period of October/November 2018.
I prefer Linda Heptinstall's evidence that Ms Heptinstall moved into the Woodbridge house at the end of February 2019. That evidence is consistent with the evidence given by both Ben and Dan Heptinstall as to Ms Heptinstall being at their mother's house during the relevant period.
In closing submissions, the plaintiff suggested that the entry in Ms Heptinstall's 2019 Goal Journal was evidence that there was 'some co‑habitation' with Mr Barnard before the end of February 2019.[161]
[161] Plaintiff's closing submissions 11 November 2024 [8] - [9].
While that may be an available reading, I prefer Linda Heptinstall's direct evidence of what Ms Heptinstall told her about when she was moving and Linda Heptinstall's direct observation of when Ms Heptinstall moved. I consider that I must prefer that direct evidence given that there was no evidence as to when Ms Heptinstall had written the 2019 Goal Journal.
In the Centrelink records obtained by Ben Heptinstall, it appears that Ms Heptinstall changed her address with Centrelink to commence on 27 June 2019 from Linda Heptinstall's address to the Woodbridge house.[162]
[162] Ex 24 TB 270.
Linda Heptinstall gave evidence that she only visited the Woodbridge house once on 19 July 2019. Then she observed in one room a mattress on the floor without a bedframe and in another room a bed. She saw Mr Barnard's clothing and personal belongings in the room that had the mattress on the floor and saw that Ms Heptinstall's clothing and personal belongings in the room with the bed (with a frame).[163]
[163] Ex C [32] - [35].
I find that Ms Heptinstall moved into the Woodbridge house at the end of February 2019.

The change in the relationship between October 2018 and February 2019

In my assessment, the factual matters which point strongly to there being a significant change in their relationship in October and November 2018 are:
1.Ms Heptinstall moving out of the shared Balga house;
2.my rejection of the explanation that financial circumstances were the cause of them moving out of the Balga house;
3.Ms Heptinstall changing her address with Centrelink to her mother's house after the date on which Mr Barnard says she had moved into the Woodbridge house;
4.Ms Heptinstall telling Ms Quijano that she was no longer marrying Mr Barnard;
5.Mr Barnard going to the Philippines and posting about his holiday on singles website;
6.Mr Barnard's posting on two singles sites and advertising his sexual services: i.e. representing to the world that he was an unattached single;
7. Mr Barnard posting that he needed to rehome a pet because he and his partner had broken up;
8.Mr Barnard entering into the lease for the Woodbridge house in his sole name with the condition that only one person may live at the address;
9.the Messenger conversations between 21 October to 11 November 2018 which did not mention moving in together to another property, and evidencing, on their face, two people not living under the one roof;
10.Ms Heptinstall not moving immediately into the Woodbridge house in November 2018 and not moving in until the end of February 2019;
11.Ms Heptinstall advertising wedding items for sale, including the ring which was to be Mr Barnard's wedding ring;
12.Ms Heptinstall changing her relationship 'status' on Facebook; and
13.Linda Heptinstall telling Mr Bartier at about Christmas 2018 that Mr Barnard and Ms Heptinstall had broken up (which goes to the public perception of them as a couple).
In all of the circumstances, I am not satisfied that (it is more likely than not) from the time Ms Heptinstall moved out of the Balga house until she moved back in with Mr Barnard in February 2019, that they were a de facto couple within the statutory meaning.
Indeed, I am positively persuaded that between October 2018 and February 2019, Ms Heptinstall and Mr Barnard were not in a relevant de facto relationship.
That is, to be clear, I consider that the de facto relationship was at an end when Ms Heptinstall moved out of the Balga house. I find that, at that time, Ms Heptinstall did not have a commitment to a future with Mr Barnard. Further, I find that Mr Barnard considered himself as single or, at the very least, represented himself as such via social media posts.
Any de facto relationship resumed, I find, at the earliest, at the end of February 2019 when Ms Heptinstall moved into the Woodbridge house. I do not need to find exactly when, between the end of February and Ms Heptinstall completing the GP practice form in April 2019, the de facto relationship re-started, if indeed it did. However, even on the best case for the plaintiff, I find it was not before the end of February 2019.
The plaintiff submitted, consistently with the characterisation adopted by Mitchell JA in Britt v Office of the State Coroner[164] that what occurred in the period between November 2018 or, in the alternative October 2018, to February 2019, should be seen as a mere 'bump in the road' rather than an end to the de facto relationship. As Mitchell JA said in that paragraph:
It has also been recognised that not every short interruption in a longer de facto relationship will bring the relationship to an end. Not every 'hiccup' in a longer marriage-like relationship will necessarily prevent the overall relationship from being characterised as a single de facto relationship rather than a series of discrete relationships. Depending on the circumstances, interspersed periods of separation may be characterised as merely bumps in the road, rather than the end of one road and the beginning of another.
[164] [2022] WASCA 75 [75].
I have given careful consideration to whether, as submitted by the plaintiff, what occurred when Ms Heptinstall moved out of the Balga house was more of a 'hiccup' than a termination of the relationship.
However, for the reasons I have set out, I consider that there was a definite end to the de facto relationship at that time.

Applicable statutory provisions

In light of those factual findings, I turn to the meaning of a de facto relationship. Section 13A of the Interpretation Act 1984 (WA) provides that a reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between two persons who live together in a marriage‑like relationship.
That section provides that the following factors are indicators of whether or not a de facto relationship exists between two persons, but are not essential:
(a)the length of the relationship between them;
(b)whether the two persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children; and
(i)the reputation, and public aspects, of the relationship between them.
I now turn to each of the indicators in s 13A of the Interpretation Act. I do so not in a mechanical way but by reference to the principles summarised by Mitchell JA in Britt v Office of the State Coroner.[165]

The length of the relationship

[165] Britt v Office of the State Coroner [2022] WASCA 75 [73] - [75] (citations omitted).

I find that the relationship commenced at the end of January 2017 and a mutual commitment to a shared life commenced on about 1 May 2017.
I find that there was a break in that relationship from about 28 October 2018 and Ms Heptinstall, at that time, no longer had a shared commitment to a life with Mr Barnard.
It appears that there was some relationship in Ms Heptinstall's mind at the time that she wrote her 2019 Goal Journal but I am not positively persuaded that there was a serious marriage-like relationship between them between October 2018 and February 2019.
I find that, at the earliest, their de facto relationship resumed when Ms Heptinstall moved into the Woodbridge house at the end of February 2019.

Whether the two people have resided together

I have dealt with their residing together immediately above.

The nature and extent of common residence

I have dealt with this immediately above.

Whether there has been a sexual relationship between them

I find that there was a sexual relationship between them from, at the latest, the first week of April 2017 when they went to Melbourne together.
I am unable to make any finding as to whether there was a sexual relationship between them between October 2018 and February 2019.
I find that there was a sexual relationship between them from the end of February 2019 up until the time of Ms Heptinstall's death.

Degree of financial dependence or interdependence

I am not satisfied, and I do not find, that there was any financial dependence or interdependence between them at any point.

Ownership, use and acquisition of their property

I make no finding as to ownership, use or acquisition of their property together.

The degree of mutual commitment by them to a shared life

I have considered this under the heading of the 'length of relationship' above.

Whether they care for and support children

This is not relevant.

Reputation and public aspects of the relationship between them

I find that the way they presented their relationship publicly is broadly consistent with the findings I have made as to the relationship between them in the three distinct periods of time I have identified.

Disposition

For the above reasons, I am not persuaded that at the time of Ms Heptinstall's death that she and Mr Barnard had lived as de facto partners for a period of at least two years immediately before her death.
Accordingly, I would dismiss the plaintiff's application and will hear the parties as to the final orders to be made, including as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Howard
25 NOVEMBER 2024