Brownell v Robinson
[2017] TASFC 11
•13 October 2017
[2017] TASFC 11
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Brownell v Robinson [2017] TASFC 11
PARTIES: BROWNELL, Mary Ann
v
ROBINSON, Christine
FILE NO: 428/2017
JUDGMENT: Brownell v Robinson [2017] TASSC 5
DELIVERED ON: 13 October 2017
DELIVERED AT: Hobart
HEARING DATE: 29 August 2017
JUDGMENT OF: Estcourt and Pearce JJ, Marshall AJ
CATCHWORDS:
Appeal and New Trial – Succession – Probate and letters of administration – Evidence – Generally – Whether primary judge properly approached and evaluated the evidence that lead to a finding of a significant relationship two years prior to death – Whether primary judge applied correct principles applicable to making findings of fact – Whether primary judge gave too much weight to perceptions of demeanour and credibility – Whether primary judge erred in assessing credibility and reliability of witnesses – Whether finding contrary to compelling inferences – Whether primary judge erred in permitting witnesses to give opinion evidence – Whether primary judge erred in failing to give reasons as to assessment of evidence – No errors found.
Evidence Act 2001 (Tas), s 78(b).
Ashton v Pratt (No 2) [2012] NSWSC 3, distinguished.
R v Arnold [1998] VSCA 34, referred to.
Aust Dig Succession [1442]
Appeal and New Trial - Succession – Family law – Spouse or partner - Meaning of significant relationship – Couple not living together – Construction of Intestacy Act and Relationships Act – Meaning of spouse – Whether error in primary judge's finding as to the existence of a significant relationship based on error of construction – Whether finding contrary to compelling inferences – Overwhelming evidence of a significant relationship.
Relationships Act 2003 (Tas), s 4.
Aust Dig Succession [1406]
Appeal and New Trial – Succession – Intestacy and distribution on intestacy – Construction of Relationships Act – Construction of Intestacy Act – Whether requirement of existence of continuous period of at least two years prior to death – Whether failure to find that the significant relationship ceased to exist upon separation – Two year period a qualitative requirement rather than a minimum duration requirement – Relationship did not cease to exist for the purposes of finding a significant relationship between the respondent and the deceased.
Intestacy Act 2010 (Tas), s 6.
S v B (2004) 1 Qd R 537, discussed.
Sadiq v NSW Trustee & Guardian [2015] NSWSC 716, distinguished.
Aust Dig Succession [1332]
REPRESENTATION:
Counsel:
Appellant: J Needham SC
Respondent: D Zeeman
Solicitors:
Appellant: Tremayne, Fay, Rheinberger
Respondent: Butler, McIntyre and Butler
Judgment Number: [2017] TASFC 11
Number of paragraphs: 103
Serial No 11/2017
File No 428/2017
MARY ANN BROWNELL v CHRISTINE ROBINSON
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
PEARCE J
MARSHALL AJ
13 October 2017
Order of the Court
Appeal dismissed.
Serial No 11/2017
File No 428/2017
MARY ANN BROWNELL v CHRISTINE ROBINSON
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
13 October 2017
The appeal and its factual background
This is an appeal against the orders of Brett J made consequent upon his Honour's decision in Brownell v Robinson [2017] TASSC 5 delivered on 31 January 2017.
The background to the appeal appears from the reasons for judgment of the learned trial judge at [1]-[5]:
"1 These proceedings concern the administration of the estate of Gerard McGarry. Mr McGarry died intestate on 6 August 2013. On 13 November 2014, letters of administration were granted to the defendant as administrator of the estate. The grant of administration was in the non-contentious jurisdiction of the Court pursuant to the Probate Rules 1936. The grant was supported by sworn evidence from the defendant that she had been the spouse of Mr McGarry for a period of 23 years immediately preceding his death. They were not and had never been married, but her claim to be his spouse was based on her evidence that they had been in a significant relationship within the meaning of s 4 of the Relationships Act 2003, on a continuous basis during the said period. By virtue of s 6 of the Intestacy Act 2010, the definition of the spouse of an intestate includes a person who, immediately before the intestate's death, was a party to a significant relationship within the meaning of the Relationships Act, with the intestate that had been in existence for a continuous period of two years. As Mr McGarry's spouse, and given that Mr McGarry leaves no issue, the defendant is entitled to the whole of his estate: see the Intestacy Act, s 12.
2 The plaintiff is Mr McGarry's sister. She seeks an order revoking the grant of administration to the defendant on the basis that the defendant has no interest or entitlement in the estate and, therefore, had no right to obtain the grant. The basis of this allegation is as follows:
(a)Although the plaintiff concedes that the defendant and Mr McGarry maintained a relationship over many years, she disputes that the relationship was a significant relationship within the meaning of s 4 of the Relationships Act. At the very least, she would argue that the relationship immediately prior to death was not a significant relationship.
(b)Even if the relationship was a significant relationship immediately before Mr McGarry's death, the plaintiff disputes that the defendant comes within the definition of 'spouse' within the meaning of the Intestacy Act, because the plaintiff asserts that the significant relationship had not been in existence for a continuous period of two years immediately preceding Mr McGarry's death, and that this is a necessary requirement of the definition.
3 It is common ground that Mr McGarry is not survived by any other person who satisfies the definition of 'spouse' under the Intestacy Act. He is not survived by children or parents, but he is survived by his sister, the plaintiff, and a brother, Mr Simon McGarry. If the defendant was not Mr McGarry's spouse at the time of his death, then his brother and sister are entitled to the whole estate (see Intestacy Act, s 30). For reasons which I will explain shortly, the grant of administration will follow the entitlement to the estate which, in turn, depends on a finding as to whether the defendant survives Mr McGarry as his spouse.
4 The issue of whether Mr McGarry and the defendant were in a significant relationship at any relevant time will be considered in the context of some unusual features of that relationship. Apart from a short period at the commencement of the relationship, Mr McGarry and the defendant had not shared, and, at the time of Mr McGarry's death, were not sharing a common residence. According to the defendant, she chose not to live in the same residence as Mr McGarry because, since the commencement of their relationship, he had a problem with collecting and hoarding personal property. The accumulation of such property in his home made it practically uninhabitable. They also maintained separate finances. However, the defendant points to the fact that their relationship, despite these features, had endured for 23 years; that they maintained an exclusive sexual relationship during that time; that they spent the majority of weeknights together, and were generally regarded by friends and family as a couple. The plaintiff, on the other hand, contends that although there was a relationship of sorts, which included a sexual relationship, and despite the fact that they were seen by others as a couple, the relationship was intermittent, in the sense of being punctuated by regular separations, and simply was not of a quality or nature that permits it to be regarded as a significant relationship.
5 In relation to the question of whether the relationship, if it was indeed a significant relationship at the time of death, was one that had been in existence for a continuous period of two years, the plaintiff argues that the proper construction of s 6 requires that the continuous period be immediately prior to the intestate's death. The plaintiff points to evidence, including statements made by the defendant in evidence, which the plaintiff says support a finding that the defendant and Mr McGarry had last separated prior to his death for a period of three to four months which commenced two years before his death. The plaintiff submits that such evidence necessarily leads to the conclusion that the relationship, if it was a significant relationship, was not in existence for a continuous period of two years immediately before death, because the separation effectively interrupted its continuity, and it was not in existence during the period of that separation."
The legal context
The relief sought by the appellant in the proceedings below was an order revoking the grant of administration of the estate of Mr McGarry (the deceased), to the respondent. The power to revoke or set aside such a grant is derived from s 6(5) of the Supreme Court Civil Procedure Act 1932. A grant of administration in common form, in the voluntary or non-contentious jurisdiction of the Court, is revokable at the instance of a person whose interests are adversely affected by it. An established basis for the revocation of a grant is that it was made to a person who was not entitled to it. See Lindsay J's encyclopaedic decision in this area of the law in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [102]-[210].
By virtue of s 13 of the Administration of Probate Act 1935, where a deceased has died wholly intestate, administration shall be granted "to some one or more of the persons interested in the residuary estate of the deceased". Rule 22 of the Probate Rules 1936 sets out the priority of right to a grant of administration. That priority essentially follows the order in which persons become entitled to the estate of an intestate under the Intestacy Act 2010.
Section 12 of the Intestacy Act provides that if an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate. If the respondent was not the deceased's spouse at the time of his death within the meaning of the Intestacy Act, s 6, then she had no entitlement to a grant of administration.
It followed, the learned primary judge noted, that the grant of the relief sought by the appellant depended on a finding that at the time of the deceased's death, the respondent was not his spouse within the meaning of s 6 of the Intestacy Act.
It was common ground that the deceased and the respondent had never been married and their relationship had never been registered under the Relationships Act 2003, and that although they had conceived a child together in the early stage of their relationship, the pregnancy had not resulted in the birth of a child, and further efforts at conception through an IVF program had proved unsuccessful.
Accordingly, as the learned trial judge noted, the only applicable basis for a finding that the respondent was the deceased's spouse was s 6(c)(i) of the Intestacy Act. Section 6 of that Act provides in full as follows:
"6 Spouse
A spouse of an intestate is a person —
(a) who was married to the intestate immediately before the intestate's death; or
(b)who was a party to a registered personal relationship, within the meaning of the Relationships Act 2003, with the intestate; or
(c)who, immediately before the intestate's death, was a party to a significant relationship, within the meaning of the Relationships Act 2003, with the intestate that —
(i) had been in existence for a continuous period of at least 2 years; or
(ii) had resulted in the birth of a child."
Ultimately the learned trial judge concluded that he was satisfied that there was a significant relationship between the deceased and the respondent, that it existed immediately before the deceased's death and had been in existence for a continuous period of at least two years prior to his death. Accordingly, his Honour was satisfied that the respondent was the spouse of the deceased for the purposes of s 6 of the Intestacy Act. It followed that the respondent was entitled to the whole of the deceased's intestate estate, and there was no basis for the revocation of the grant of administration.
Although the learned trial judge also made some obiter comments as to how he might have construed s 6 of the Intestacy Act had he been satisfied that the relationship had not been in existence for a continuous and contiguous period of at least two years immediately prior to the deceased's death, those comments on that issue do not form part of his Honour's dispositive reasons and do not underpin the orders he made. Although purportedly impugned by the notice of appeal, no single ground of appeal asserts a relevant failure on his Honour's part so as to squarely raise this issue for determination on the present appeal.
The issues arising
The appellant now appeals against the learned trial judge's decision. The 16 grounds of appeal are as follows:
"1The learned trial judge erred in fact by finding that the respondent was a party to a significant relationship, within the meaning of s4 of the Relationships Act 2003, with Gerard Majella McGarry (the deceased) immediately before the time of his death and in particular failed to give any or any sufficient weight to:
athe fact that the deceased and the respondent always maintained separate households;
bthe fact that the deceased and the respondent always maintained separate finances and that there was no financial dependence or interdependence between them nor any arrangements for financial support;
cthe fact that there was no evidence of the deceased and the respondent jointly owning, using or acquiring property;
dthe lack of evidence as to a mutual commitment by the deceased and the respondent to a shared life;
e the very limited evidence of the performance of household duties;
fthe objective evidence of the deceased's view of the nature of the relationship as evidenced by contemporaneous records that were tendered at trial;
gthe contents of exhibit P11 being a letter from the respondent's solicitors to the appellant's solicitors dated 5 June 2015;
hthe respondent's evidence that she did not record the deceased as her spouse or partner with her doctors, dentists, government agencies, nor was the deceased recorded by the respondent as being a beneficiary of her superannuation fund.
2The learned trial judge erred in law by finding that it was not necessary, for the purposes of the definition of 'spouse' in s6 of the Intestacy Act 2010, for the respondent and the deceased to be in a significant relationship for a continuous period of two years immediately prior to the death of the deceased.
3The learned trial judge erred in law by failing to follow S v B (2004) 1 Qd R 537, in particular at 546[33], such decision the learned trial judge was bound to follow unless he was of the view that it was plainly wrong.
4The learned trial erred in law by misapplying the principles outlined in S v B (2004) 1 Qd R 537 at 546[33] by finding that the 'separations described by the defendant, including the last, could not, on the evidence, be taken to have manifested an intention to withdraw from the relationship', whereas the learned trial judge was required to analyse the evidence and determine whether, upon a 'separation' between the deceased and the respondent, the persistence of the indicia of a significant relationship existed and then to determine whether such relationship ceased or continued.
5The learned trial judge erred in law by finding that a significant relationship broken by a period of separation but then resumed between the same parties is simply a resumption of the same relationship.
6The learned trial judge erred in law and/or fact because upon a proper application of the principles outlined in S v B (2004) 1 Qd R 537 at 546[33] the only conclusion reasonably open on the evidence was that the last period of 'separation' between the deceased and the respondent had the effect of ending the relationship then in existence between them.
7The learned trial judge erred in law by failing to find that the respondent carried the onus of establishing the existence of a significant relationship between herself and the deceased, and in so doing failed to follow S v B (2004) 1 Qd R 537 at 549[50], such decision the learned trial judge was bound to follow unless he was of the view that it was plainly wrong.
8The learned trial judge erred in law and/or fact by finding that the respondent was the 'spouse' of the deceased within the meaning of s6 of the Intestacy Act 2010.
9The learned trial judge erred in law and/or fact by finding that the deceased and the respondent shared a relationship for a period of 23 years.
10The learned trial judge erred in law by failing to follow or apply the principles applicable to making findings of fact in cases such as this and as summarised in Ashton v Pratt (No 2) [2012] NSWSC 3 at [17]-[18], such summary being based on principles derived from Watson v Foxman (1995) 49 NSWLR 315 at 319, Plunkett v Ball (1915) 19 CLR 544 at 548-549 (Isaacs J), Bovaird v Frost [2009] NSWSC 337 at [45], Varma v Varma [2010] NSWSC 786 at [418]-[422], Re Hodgson (1886) 31 Ch D 177 and Weeks v Hrubala [2008] 162 at [20] Young CJ at Eq.
11The learned trial judge erred in law when making findings of fact by attributing too much weight to his perceptions of the demeanour and credibility of witnesses when giving evidence contrary to established principles enunciated in authorities including Fox v Percy (2003) 214 CLR 118, State Rail Authority of New South Walesv. Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 and CSR Ltd v Della Maddalena (2006) 224 ALR 1.
12The learned trial judge erred in law by, contrary to s76 of the Evidence Act 2001, permitting witnesses called on behalf of the respondent to give evidence of their opinions that the deceased and the respondent were 'a couple' or 'partners' or to otherwise express an opinion as to the nature of any relationship between the deceased and the respondent.
13The learned trial judge erred in law and/or fact by finding that the deceased and the respondent last separated in or about April 2006, such finding being contrary to the weight of the evidence and in particular:
aparagraph 18 of the respondent's affidavit sworn 21 July 2015 in which the respondent deposed that she and the deceased had separated approximately four years prior to the date upon which the affidavit was sworn for a period of approximately three to four months;
bthe respondent's evidence in which she 'maintained' that the contents of her affidavit were true;
cthe unequivocal and unambiguous evidence of the respondent's sister, Marion Robinson, that the deceased and the respondent separated for a period of approximately three to four months in about July 2011;
dthe unequivocal and unambiguous evidence of the respondent's friend, Anneliese Smith, that the deceased and the respondent separated in about July 2011.
14The learned trial judge erred in fact by finding that neither the respondent, Marion Robinson or Anneliese Smith turned their mind to the precise timing of the separation of the deceased and the respondent in about July 2011 in circumstances in which the witnesses were not re-examined on the issue and there was no evidence upon which such a finding could be based.
15The learned trial judge erred in law by failing to give any or any adequate reasons for preferring the evidence of the respondent and the witnesses called by the respondent over that of Julian McGarry.
16The learned trial judge erred in law and/or fact by finding that the respondent was a credible and reliable witness, or alternatively failed to give any or any adequate reasons for that finding, particularly in light of:
athe inconsistencies between par18 of the respondent's affidavit sworn on 21 July 2015, her oral evidence in cross-examination, and par18 of her affidavit filed in support of an application for a non-contentious grant of letters of administration;
bthe learned trial judge's findings and observations at [13]-[14] of his reasons for judgment delivered on 24 August 2016 when ruling on an application by the respondent to reopen her case at the conclusion of the trial;
cthe respondent's evidence when being cross-examined to the effect that she always maintained a separate household to the deceased, such evidence being corroborated by witnesses called on her behalf and not having been disclosed in her trial affidavit;
dthe respondent's failure to disclose to the Registrar of this Court when making a non-contentious application for letters of administration that her entitlement to do so claiming to be the spouse of the deceased was disputed by the appellant;
ethe respondent's failure to inform UniSuper, the trustee of a superannuation fund of which the deceased was a member, when applying for the deceased's superannuation benefit to be paid to her as the deceased's spouse that her assertion that she was the deceased's spouse was disputed by the appellant;
fthe generally unsatisfactory and unreliable manner in which the respondent gave evidence."
· Whether on the evidence properly approached and evaluated the relationship between the respondent and the deceased was during its subsistence a "significant relationship" within the meaning of s 4 of the Relationships Act.
· Whether, if the relationship between the respondent and the deceased was a significant relationship within the meaning of the Relationships Act, such significant relationship was, on the evidence properly approached and evaluated, in existence for a continuous and contiguous period of two years immediately prior to the death of the deceased so as to engage s 6 of the Intestacy Act on the most onerous construction of that section from the respondent's perspective.
Was there a "significant relationship"?
The first issue then is whether there was a relevant significant relationship. The concept of a significant relationship is created and defined by the Relationships Act. The definition relating relevantly to a significant relationship is as follows:
"4 Significant relationships
(1) For the purposes of this Act, a significant relationship is a relationship between two adult persons —
(a) who have a relationship as a couple; and
(b) who are not married to one another or related by family.
(2) If a significant relationship is registered under Part 2, proof of registration is proof of the relationship.
(3) If a significant relationship is not registered under Part 2, in determining whether two persons are in a significant 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.
(4) No finding in respect of any of the matters mentioned in subsection (3)(a) to (i), or in respect of any combination of them, is to be regarded as necessary for the existence of a significant relationship, and 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 of the case."
At [22] of his reasons the learned trial judge set out his approach to his inquiry as to the existence of a significant relationship as follows:
"22 The above discussion supports the conclusion that the starting point for the determination of whether a significant relationship exists must be that the two adults concerned have a relationship as a couple. This would suggest that the relationship either is or has been based on their romantic relationship. But this quality, of itself, will not be sufficient to constitute a 'significant relationship'. The relationship must also be one of significance, that is, a romantic relationship which is important or of consequence, to the two people who are in the relationship. That latter requirement will necessarily distinguish the relationship from their relationship with other persons, hence suggesting a degree of exclusivity."
I detect no error in that approach. I do not accept that the learned trial judge was diverted from the correct approach to the construction of s 4 of the Relationships Act by embracing the notion of a "romantic relationship". Whether or not that was a non-statutory "gloss" as submitted by the appellant's counsel, Ms Needham SC, it can be seen from the passage set out above that his Honour remained alive to the central and critical requirement that the relationship "must be one of significance".
Quite clearly, and without resort to the second reading speech or the clause notes to the Relationships Bill 2003 which became the Relationships Act, a couple does not necessarily have to be living together to be in a significant relationship. Section 4(4) of the Relationships Act makes it plain that no finding in respect of any of the matters mentioned in s (3)(a) to (i), or in respect of any combination of them, is to be regarded as necessary for the existence of a significant relationship. Included among those matters of course, at s 4(3)(b), is "the nature and extent of common residence". The maintenance of separate households to which it is said by ground 1(a) of the notice of appeal that the learned trial judge gave no or insufficient weight is just one matter to which a court may attach such weight as may seem appropriate in the circumstances of the case.
The other matters to which ground 1 of the notice of appeal asserts the learned trial judge gave no weight or insufficient weight are:
"bthe fact that the deceased and the respondent always maintained separate finances and that there was no financial dependence or interdependence between them nor any arrangements for financial support;
cthe fact that there was no evidence of the deceased and the respondent jointly owning, using or acquiring property;
dthe lack of evidence as to a mutual commitment by the deceased and the respondent to a shared life;
e the very limited evidence of the performance of household duties;
fthe objective evidence of the deceased's view of the nature of the relationship as evidenced by contemporaneous records that were tendered at trial;
gthe contents of exhibit P11(sic) being a letter from the respondent's solicitors to the appellant's solicitors dated 5 June 2015;
hthe respondent's evidence that she did not record the deceased as her spouse or partner with her doctors, dentists, government agencies, nor was the deceased recorded by the respondent as being a beneficiary of her superannuation fund."
Allied to ground 1 of the notice of appeal, as I apprehend it, is ground 9 which asserts that the learned trial judge erred in law and/or fact by finding that the deceased and the respondent shared a relationship for a period of 23 years.
As I understand, ground 1 and ground 9 of the notice of appeal are directed at the conclusion reached by the learned trial judge after his consideration of the evidence by reference to the formulation of the inquiry his Honour framed for himself, and not to the formulation of the inquiry itself. In any event, to the extent that it might be otherwise, I record that I respectfully agree with and adopt as correct, the following observations made by his Honour at [31] of his reasons:
"31 The determination of the question of whether a relationship between two persons is a significant relationship will ultimately involve a determination of fact after the Court has taken into account all of the circumstances of the relationship, including the factors referred to in s 4(3). In considering the application of the indicia in s 4(3), the Court must have regard to the flexibility implied by s 4(4). It must also allow for the possibility that a significant relationship can exist in a wide variety of forms and circumstances. However, ultimately, the determination of the existence of a significant relationship will depend upon a finding that the parties have a relationship as a couple, which implies that the relationship is, or at least has been based on the type of mutual attraction and commitment commonly understood as a romantic relationship. It must be a relationship which is important or of consequence to the parties to that relationship. It is appropriate also to have regard to the legislative consequences of a finding of the existence of a significant relationship, in assessing the degree of significance required for a determination that it will fall within the definition. However, it is not necessary in my view that the relationship be, in the words of counsel, 'akin to a marriage relationship or even a de facto relationship under the repealed legislation'. The judgment must be made within a legislative framework which is intended to be flexible enough to recognise the existence of the diversity of relationships within modern society. Whilst the nature and extent of common residence, and degree of financial dependence or interdependence between the parties are relevant factors in assessing whether two persons are in a significant relationship, neither of those factors can be considered a precondition to a finding that a significant relationship exists."
The evidence-in-chief of witnesses on the trial was taken on affidavit and was subject to cross-examination. It is obviously impractical to set out the contents of the affidavits or the cross-examination in full. Equally it would do a disservice to proper consideration of the appellant's complaints as to the learned trial judge's evaluation of the evidence and his assessment of witnesses as set out in the notice of appeal were I to attempt to summarise the evidence in a way other than was done by his Honour in his reasons for judgment.
What his Honour did was to set out in his reasons what he termed a "synopsis" of the witnesses' testimony and the documentary evidence tendered through witnesses and by consent. That synopsis, however, is infused with a consideration of submissions by counsel as to how certain evidence should be approached, and about the reliability of witnesses, and with his Honour's observations and discussion about such matters and his conclusions about them. There is also within the synopsis a consideration of a number of subpoenaed documents relied upon by the appellant and a discussion about a potential witness who was not called. I have reached the view that in such circumstances there is no practical alternative other than to set out the whole of his Honour's synopsis and then to return to those parts of his evaluation and assessment of the evidence as are the subject of specific grounds of appeal and to deal with any testimony called up by the notice of appeal that is not set out in the synopsis.
The following is the learned trial judge's synopsis of the evidence set out at [36]-[38] of his Honour's reasons for judgment:
"The evidence
36 The evidence of witnesses in this case was taken on affidavit, with cross-examination. A number of documents were tendered through witnesses or by consent. A synopsis of the testimony and documentary evidence presented in this case follows. As the bulk of the evidence concerning the nature and detail of the relationship under consideration came from the defendant, and witnesses called on her case, it is convenient to consider the case of the defendant first.
The defendant's case
(a)The defendant, Christine Robinson. Ms Robinson gave evidence that she and the deceased met when they were working at the University of Tasmania in 1989. Both had been recently separated or divorced. They commenced a relationship in August 1990 and started to live together in Mr McGarry's house at Sandy Bay in 1992. Mr McGarry was still resident in the same house at the time of his death. Ms Robinson had a separate unit close by at the time that they met. I am satisfied that the effect of her evidence was that she maintained separate living accommodation throughout the entirety of their relationship.
The impact of Mr McGarry's problem with hoarding on the nature of their relationship, manifested soon after they commenced to live together in 1992. The defendant gave evidence that later in that same year, they separated for a period of approximately six months. In cross-examination, she explained the reason for this separation as follows:
'And you said in your affidavit, for reasons which I explain later, in this my oath in relation to ceasing to live together in 1992. Why did you cease living together later in 1992?.....We were working at the same place at the university. Gerard was hoarding more stuff. We just had a few arguments and I moved out, but – '
Later in cross-examination, she was pressed on the question of whether the decision to stop living together for a period of six months in 1992 amounted to a separation. Ms Robinson explained the decision not to live together for a period of time in this way:
'Presumably it was after that trip, sometime in 1992, you separated?.....Could have been, yes. I had a unit close by anyway. Sometimes if I – Gerard and I weren't getting on I'd just go back to my unit, but we – we lived on and off together for quite a few years.
Right, so you've said in 1992, you separated, but you can't say when in that year?.....No. Not really.
Even by reference to the trip to Sydney - ……..After going to –
-for your 40th birthday, is it the case that you can't use that as a reference point to recall whether you'd separated before or after that?.....Well when I say separated, all I did was go back to my place to live for a while. It doesn't mean that our relationship stopped. We were just living in separate places. And we did that quite a bit. So I wouldn't call it a separation.
So it's – you didn't separate now?.....No.
Your evidence a few minutes ago, was that you separated?.....Well, we did stop – we possibly stopped living together, it doesn't mean we separated or we broke it off or anything.'
The effect of this and other evidence given by Ms Robinson was that when she and Mr McGarry were not living together on a full-time basis, it was not because of a unilateral or mutual intention to terminate the relationship, but simply because she found it difficult to live with him, largely because of his problem with hoarding. Her evidence was that he maintained this problem throughout the course of their entire relationship and, in fact, it became progressively worse. The nature of the hoarding was that Mr McGarry would accumulate a great deal of property and store it in his house. The defendant produced photographs of the interior of the house which show untidy and cluttered accommodation consistent with the defendant's description that the house was virtually uninhabitable. Her evidence was that Mr McGarry was well aware of the problem and it worried him. Not only did it mean that she could not live in his house with him, or even go there for extended periods of time, but he was also reluctant and embarrassed to have other people there. The house was still in this state at the time of his death.
The effect of Ms Robinson's evidence was that the parties' attempts to live together in the same house extended until late in 1992, but thereafter they lived permanently in separate residences. Her evidence was, however, that until his death, they maintained a loving and committed relationship, an exclusive sexual relationship, and spent a considerable amount of time together. They fell into a pattern whereby Mr McGarry would visit Ms Robinson's residence five to six nights each week and would have dinner with her there on at least five of those nights. She was largely responsible for preparing the evening meal, but he would also contribute parts of the meal. After dinner, they would sometimes have sex, or engage in other activities, and then he would return to his residence. Sometimes he would stay overnight, although she conceded that this became less frequent in the period immediately preceding his death.
The defendant described various activities in which she and Mr McGarry engaged together. These activities included attending quiz nights on a fortnightly basis over a period of 10 to 12 years, going to the tip shop together, and maintaining and participating in a mutual interest in politics, current affairs, reading and football. According to Ms Robinson, they engaged with each other in matters affecting their respective daily lives, including Ms Robinson's education, the question of her driver's licence and their mutual health. They attended family functions and other social events as a couple on a regular basis.
The defendant's evidence was that approximately six months before Mr McGarry's death, they agreed that they would clean up his property and buy another house together, with the intention of living together in it. She also agreed to obtain a driver's licence, so that she could provide transportation for Mr McGarry, whose deteriorating eyesight made driving difficult. In a number of other respects, Ms Robinson described a relationship in which the parties shared various aspects of their domestic lives without actually living in the same house. Her evidence was that they had a very loving relationship throughout the entirety of its duration, that they were very affectionate with each other, and always maintained a mutually exclusive sexual relationship. They had always had keys to each other's residences.
They did not have children. However, in 1994, they conceived a child together, but the pregnancy was terminated by mutual agreement. They then participated together in the IVF program for a period of approximately six years, until 2002, when they mutually decided to abandon the program due to its lack of success.
In cross-examination, Ms Robinson agreed that with the exception of perhaps a couple of occasions, she had not listed Mr McGarry as her emergency contact with doctors or, indeed, with any other institution. She also agreed that they had maintained completely separate finances through their relationship, to the point of having separate bank accounts and health insurance. They had also had a number of further periods which might be characterised as separations. I will return to Ms Robinson's evidence in relation to the question of these separations later in these reasons.
Mr Gunson submitted that I should not regard Ms Robinson's evidence as satisfactory, that she was an unreliable witness, and that I should scrutinise her evidence carefully. He submitted that she had exaggerated the nature of the relationship. These submissions were, in part, based on extensive cross-examination and other evidence, concerning the manner in which Ms Robinson obtained the grant of administration in the non-contentious jurisdiction of the Court and, further, the fact that she actively sought and successfully secured payment of Mr McGarry's superannuation funds into the estate. In essence, it was submitted that I should conclude that Ms Robinson had not informed the Court officer who was responsible for assessment of the application for letters of administration, nor the relevant superannuation fund, of the fact that she was aware that her claim to have been Mr McGarry's spouse was disputed by the plaintiff. The conclusion that I was asked to draw was that, had the relevant authorities been made aware of this dispute, it may have affected or prevented the grant of administration, and the payout of the superannuation funds. It was submitted that I should also conclude that Ms Robinson was aware of this and that she had deliberately withheld this information in order to secure her interest in Mr McGarry's estate and the superannuation funds.
Having carefully assessed the evidence in respect of these questions, I am not satisfied that the actions of the defendant in respect of the said applications were improper or that a finding that she deliberately withheld information to secure her position in relation to the estate is justified. There was clear evidence that Ms Robinson's solicitors had given the plaintiff's solicitors notice of her intention to make the application in the non-contentious jurisdiction of the Court, but that the plaintiff's solicitors had responded to this by simply writing to the defendant's solicitors with a request that they be informed if such an application was actually made. They did not, as the plaintiff was entitled to do, enter a caveat in the Registry on the plaintiff's behalf, pursuant to r 77 of the Probate Rules. In any event, the defendant's response to cross-examination in relation to this issue was that she did not understand the legal technicalities and procedures, and had left those questions in the hands of her solicitor. Having heard and assessed her evidence, I accept that she gave truthful evidence about this question. I am satisfied that she had left the legal process relating to both the application for probate and the payout of the superannuation funds in the hands of her solicitors, and that she was acting in accordance with legal advice with respect to these steps. The question of the propriety of the defendant's solicitor's actions in taking advantage of the failure of the plaintiff's solicitors to cause a caveat to be entered in accordance with the Probate Rules is an issue which does not need to be addressed by me, because I am satisfied that it does not affect the question of the defendant's credibility. I am satisfied that nothing about the way that the defendant personally approached the process of obtaining letters of administration and having the money paid out of the superannuation fund, bears on her credit in respect of her testimony in this case.
Mr Gunson also submitted that I should find that many of Ms Robinson's answers in cross-examination were evasive and consistent with her being an unreliable witness. I disagree with this submission. My impression was that Ms Robinson was an honest and reliable witness. She was repeatedly pressed to answer questions with precision, the questions having been put to her in very precise terms. However, she was being questioned over the course of approximately an hour or so in respect of specific details relating to a relationship which had been in place for over 23 years. My impression was that she was doing her best to describe the nature of a somewhat unusual relationship in her own words and her own way.
My overall impression was that Ms Robinson was doing her best to give me an accurate picture of the relationship as she had seen it through her own eyes. I did not form the opinion that she was engaging in deliberate exaggeration. I accept that she was a credible and reliable witness. Having said this, in a case such as this, a relationship can be perceived differently by the people involved in it and by outsiders observing it. That is why a court must consider the various perceptions and then make a judgment on the balance of probabilities, taking into account the statutory factors and any other relevant factors.
(b)Moira Nicholls. Ms Nicholls worked at the University with Ms Robinson and Mr McGarry between 1998 and 2000. Her evidence was that, during that time, she observed them at work and at social events. She described them as behaving as a couple during the time that she knew them. In cross-examination, she was asked to describe what she meant by the term 'a couple', and she said:
'How do you define the word 'couple' when you use it?……Well, I guess I'm referring to the idea that two people behave with a certain degree of intimacy, a certain degree of familiarity which comes through knowing each other very well, understanding how each other feels, and I guess physical proximity as well.'
Her evidence was that from time to time since 2000, she had occasionally run into both Ms Robinson and Mr McGarry. She had always been left with the impression that they were still together.
Ms Nicholls' evidence was not the subject of any significant challenge. I accept her evidence.
(c)Marion Robinson. Ms Robinson is the defendant's sister. She gave evidence which was strongly supportive of the defendant's evidence concerning the nature of the relationship. In particular, she emphasised that Mr McGarry had always been considered by her to be the defendant's partner, that he was usually present at family functions, and often did small jobs for older members of the defendant's family. She regarded him as her brother-in-law in substance, albeit it that that was not the legal fact. She would buy him presents for Christmas. He and the defendant would often come to her house in Victoria and stay for a period of time. Ms Marion Robinson resided in Victoria throughout the parties' relationship, but her evidence was, as refined in cross-examination, that she would travel to Tasmania or the defendant and Mr McGarry would travel to Victoria, on two or three occasions each year.
It was clear that Ms Marion Robinson is strongly aligned with her sister. She was challenged in cross-examination about exaggeration. For example, it was suggested that there was exaggeration inherent in her use of the word 'constantly' in evidence-in-chief to describe the number of times that she travelled to Tasmania or Mr McGarry and the defendant had travelled to stay with her on the mainland. She was forced to concede that her choice of the word 'constantly' was inaccurate because it was in fact something that happened two to three times each year. She conceded that it was a poor choice of words, and that a better word would have been 'frequently'.
Whilst the cross-examination about this point was legitimate, and it made the point that the word used had been inaccurate, it seems to me that Ms Marion Robinson's use of that word was not a matter which strongly affected the credibility and reliability of the substance of her evidence. Once again, my impression was that she was attempting to explain to me in a few words her description of a continuum of events which had comprised a relationship over an extended period of many years. I saw no reason to disbelieve the substance of Ms Marion Robinson's evidence concerning the fact that over many years, a relationship subsisted which was of the nature explained by her, the effect of which was that the defendant and Mr McGarry were in a relationship as partners. My impression of her evidence was that she was essentially telling the truth and attempting, as best as she was able, to describe the flavour of the close relationship between the defendant and Mr McGarry.
(d)Madeleine Henderson. Ms Henderson is the defendant's niece. Her evidence was that she had known Mr McGarry for her entire life until his death. She had always regarded him as her uncle. She has early memories of Mr McGarry's presence at family gatherings and, generally, as being part of the family. She had always accepted him as her aunt's partner. She recalls Mr McGarry's presence as the defendant's partner during a number of visits to Tasmania. The effect of her evidence can be summarised in the following passage:
'I always observed Gerard to be a part of a loving and committed relationship with my Aunt Christine for the whole of my life until his death. He was a formative part of my childhood and I will treasure my many memories of him and my Aunt Christine over the years.
… He was not just my Aunt's partner but he was a member of the family and when he died I considered his death to be the death of a family member.'
I accept Ms Henderson's evidence. It was not undermined in cross-examination. I take into account that she lived in Victoria throughout the period of the relationship and saw the parties directly only when she visited Tasmania or they visited Victoria. The value of her evidence is her perception of the relationship as a member of the defendant's family, over a long period of time.
(e)Anneliese Smith. Ms Smith is a long-term friend of the defendant. She knew Mr McGarry for the entire 23 year period of his relationship with the defendant. Until 2010, she had lived in Sydney. She returned to live in Hobart in 2010 and thereafter, until Mr McGarry's death, had a close association with both the defendant and Mr McGarry. This association consisted of a social occasion with them once a week, which included meals and football engagements. She described Mr McGarry's contribution to the evening meal, at least on the occasions when she was present for it. He would generally provide dessert, carve meat and wash up. She also attended quiz nights with them regularly. She was a party to discussions which related to their intention to move in together. She gave evidence of Mr McGarry's hoarding issue. Her evidence in relation to the nature of the relationship was that she 'always observed their relationship to be a solid and loving one with a weekly routine revolving around their mutual activities'. She gave specific evidence that not long before his death, Mr McGarry had told her that he had helped the defendant pay bills and had offered to pay off her mortgage in the sum of $50,000.
Ms Smith, as with a number of witnesses, was cross-examined about the fact that she was a close friend of the defendant, that she was aware of the nature of the proceedings, and the potential consequences of a decision which may or may not see the defendant retain the benefit of Mr McGarry's substantial estate. In essence, it was put to her that, for these reasons, she was giving evidence which supported the defendant's case. It was also put to the witness that Mr McGarry had not told her that he had offered to pay out the defendant's mortgage. This was legitimate cross-examination on the question of credibility. However, it was not expressly put to Ms Smith that she was exaggerating or fabricating her evidence because of these matters. Ms Smith candidly conceded the strength of her relationship with the defendant, and that she was giving evidence to support her. However, there is nothing about this frank concession which causes me to doubt the credibility of Ms Smith's evidence. If what she said was true, then it is completely predictable and understandable that she would want to give evidence about the nature of the relationship, particularly given its challenge by the plaintiff. Indeed the strength of her assertions about these matters is, in itself, a factor which speaks to the nature of the relationship and the perception that others had of it. I am satisfied that Ms Smith's evidence was not undermined in cross-examination. In my view, she was telling me the truth as she perceived it to be. I accept her evidence.
(f)Rosemary Jones. Ms Jones was a work colleague of both Mr McGarry and the defendant. She commenced work with them at the University of Tasmania in 1991, and their friendship continued thereafter, terminating, in Mr McGarry's case, only with his death. She is still a friend of the defendant. Her evidence was that, throughout that period, she had had regular contact with both Mr McGarry and the defendant, including engaging in many social events with them. She had always considered them to be partners. She gave evidence of frequent telephone and in-person conversations with Mr McGarry during the period of the relationship, and of specific comments made by him during these conversations. Some of the comments related to his awareness of his hoarding problem and the consequent clutter in his house. On one occasion, he showed Ms Jones a section of his house, which he had made an effort to keep neat and free of rubbish. He told her that he had done this for the purpose of maintaining his sexual relationship with the defendant. He told the witness 'on many occasions that he accepted Christine was his de facto partner'. In a conversation which occurred in the week before he died, he told Ms Jones that he intended to marry the defendant but had not done so before because he was affected by the breakdown of his first two marriages, and that he 'was happy to be in a de facto relationship with Christine and that marriage would not affect the loving relationship they both enjoyed as de factos'. He also told Ms Jones that he was spending more than three nights a week with the defendant at her home and that they were 'as happy as they had ever been together'. The witness said that during the entire time she had known them, she had always considered them to be in a de facto relationship, and had never seen Mr McGarry with another woman. He had never spoken to her about having a romantic interest in anyone else.
In cross-examination, she was asked to describe what she meant by the term 'de facto relationship'. She answered that question as follows:
'No if we can just say when you say "defacto relationship" and you're saying anyone is in your view in a defacto relationship what are the features of that relationship that attract that badge in your mind?.....That they are sexual partners. They are partners to the extent that they're virtually married, considered married.
Living together as in your use of the phrase "defacto". I'm trying to get to what you mean when you say 'defacto'?.....That they are partners in life and as a married couple would be. Sometimes the defacto relationship may vary in whether they actually live together all the time or not and that they are lovers.'
I thought that Ms Jones was an impressive witness. She was in a good position to have a detailed understanding and give a detailed description of the relationship, given that she had been close friends with both Mr McGarry and the defendant throughout the course of the entire relationship. Her evidence was not undermined in cross-examination. In fact, when questioned in a manner similar to the questioning of other witnesses concerning her motivation in giving evidence, she said this:
'Yep. I understand that. Now, who asked you to give evidence in these proceedings?.....I offered.
How did you know that the proceedings were contemplated?.....I knew, well I knew – I didn't know what specific proceedings were going to take place, I knew that Gerard had died without a Will.
Yep?.....And I said to Christine, that if there was anything I could ever do to help her in relation to Gerard's affairs, I'd be more than willing to do so to support her and to help her.
And when did the idea of – of giving evidence – well – when was the idea of you giving evidence, first grown?.....The idea of being of assistance, was raised virtually, I think, at Gerard's funeral.
Yep?.....I spoke to Christine Robinson. When I heard that there were some issues in relation to his Will.
And who did you hear that from?.....Well I expected that there would be some issues, given that he had died without a Will.
Why did you expect there to be some issues?.....Well, there are always issues when people die without a Will.
Were you concerned that Ms Robinson might – has not been provided for in the distribution of the estate, if there was no Will?.....I didn't imagine that she would be left out of any distribution because it was my view, that having been with him and – and a partner with him, defacto partner, for more than 20 years and a major part of his life, I never imagined it any way, would she not be catered for.
But were you concerned that she might be disadvantaged because he left no will?.....I was concerned that – I offered assistance mainly because I was concerned that if she was left out in any way or disadvantaged in any way, it wouldn't be fair, and I was fully prepared to give evidence about my relationship, my long-term relationship with both of them, the nature of their relationship and so that I'm not saying that I wanted to influence anything, but I wanted the truth to be known, and I wanted fairness to prevail. And if I could ensure that that would happen in any way I was happy to assist.
In your view fairness was that the estate evolve to Ms Robinson, is your view of what was fair?.....My view is that, and based on things that Gerard had said to me, that he wanted he (sic) catered for, my view is that she should at least be considered in any distribution. I'm not saying that she should necessarily have the lot or most of it, but I consider that she should be included.
And you wanted to assist her in achieving that outcome?.....I wanted to be involved in any hearings such as this, so that I could give evidence, so that any decision made is based on the truth and I was happy to give an account of my experience with both of them, so that it could be taken into account by anybody who was going to make a decision in relation to what would happen with Gerard's–
Now who first asked you to prepare an affidavit?.....I don't believe I was asked, I offered.'
This passage succinctly and eloquently encapsulates the probative value that can be derived from the motivation of Ms Jones to act as a witness for the defendant's case. Rather than undermine the effect of her evidence, it emphasises her perception and understanding of the relationship and the strength of the relationship, and what seems to me to be her belief, based on that perception, that a challenge to the true nature of the relationship required clarification. Once again, it seems to me that this emphasises the perception of this witness as to the significance of the relationship to the parties of it.
(g)Bridget Hall. Ms Hall is the aunt of the plaintiff and Mr McGarry. She has known the defendant since the commencement of the relationship between the defendant and Mr McGarry. Ms Hall recalled that the relationship commenced 'over 20 years at the time of his death'.
Ms Hall's evidence was that 'for the entire time of their relationship, I always considered Gerard and Christine as a couple'. They were always present as a couple at McGarry family functions, which had also been attended by Ms Hall. In cross-examination, she said that she only knew the defendant because she was Mr McGarry's partner. She knew that they did not live in the same house, but explained this by reference to Mr McGarry's hoarding issue. In answer to whether she was aware that they had had periods of separation, she said, 'No. They were always a couple as far as I was concerned even though they chose to live as they did'.
Ms Hall's evidence was not undermined in cross-examination. I accept her evidence.
(h)Robert Riddell. Mr Riddell was a work colleague and long-term friend of Mr McGarry. The effect of Mr Riddell's evidence was his perception of Mr McGarry and the defendant as 'confidantes, a couple and partners'. He also confirmed the extent and impact of Mr McGarry's 'collection' disorder. Although Mr Riddell was a difficult witness to cross-examine, and refused on a number of occasions to be held to the precise parameters of the question when he purported to answer it, I am satisfied that his evidence as to the perception of the relationship between the parties from the perspective of a long-term and close friend of Mr McGarry, was accurate. His evidence about this was not undermined by cross-examination and I accept that evidence.
(i)Peter Bell. Mr Bell gave evidence that he first met Mr McGarry in 1989 when he and his former wife were married. It was at about that time that Mr McGarry's second marriage had broken down and 'shortly after that he got to know Christine'. He had known them as friends ever since and had always considered them to be 'a couple'. In cross-examination, he confirmed that his perception of them as a couple was despite his knowledge that they had lived in separate residences for the majority of their relationship. His evidence about these matters was not undermined and I accept that evidence.
(j)Renate Lenk (Bell). Ms Lenk is Mr Bell's former wife. Her sworn affidavit was in identical terms to that of Mr Bell. She confirmed the contents of the affidavit in her oral testimony. Once again, her evidence was not undermined in cross-examination and I have no reason to disbelieve her.
(k)Dennis Matthews. According to his affidavit, Mr Matthews is a long-term friend of the defendant. It was clear from the affidavit that he had also become a long-term friend of Mr McGarry. Over the period of the friendship, he had understood Mr McGarry to be the defendant's partner, and that they were 'a couple'. His observation was that of 'their love for each other up to the time of Gerard's death was apparent and clear'. He was not cross-examined. I accept his evidence.
(l)Rosemary Matthews. Ms Matthews' evidence was that she had had a long-term friendship with the parties. She had been a school friend of the defendant. Her evidence was that she knew Mr McGarry and the defendant as a couple, and that is the only way she knew them until the death of Mr McGarry. Her evidence was not undermined in cross-examination, and I accept that evidence.
(m)William Morris. Mr Morris gave evidence that he had known the defendant since 1973, and Mr McGarry since September 1992. He had, since that time, known them as 'a couple'. He gave evidence of seeing them together during a trip to visit him at his home in Sydney, and of more frequent contact he had with them after his return to Tasmania in 2006. He often attended quiz nights and other outings with them. He was witness to Mr McGarry's arrival for meals at the defendant's house 'on many occasions'. He had heard conversations between them as to their intention to make plans to live in a new property. These conversations had taken place shortly prior to Mr McGarry's death.
In cross-examination, Mr Morris gave specific evidence concerning the separate accommodation of the parties in 1992. He confirmed that both residences were furnished and fully equipped.
Mr Morris' evidence was not undermined in cross-examination. I saw no reason to disbelieve him. I accept his evidence.
(n)Mr Brendan McManus. Mr McManus is the Assistant Deputy Registrar of this Court. He gave evidence concerning events and procedures in and about the application for and grant of letters of administration in the non-contentious jurisdiction of the Court. For the reasons already outlined, I do not consider that his evidence assists me greatly in respect of this matter. In any event, he was clearly a witness of the truth. His credibility was not challenged. To the extent that what he had to say is relevant, I accept that evidence.
The plaintiff's case
(a)The plaintiff, Mary Ann Brownell. Mrs Brownell is one of Mr McGarry's two surviving siblings. She frankly acknowledged in her written and oral testimony that she had seen little of Mr McGarry during the period between the commencement of his relationship with the defendant and his death. She had little direct knowledge of his domestic circumstances. She had lived overseas until 1994, and, after that, in Sydney. She gave evidence of meeting the defendant in 1994 and, thereafter, meeting her brother and the defendant at various family functions. Her evidence included reference to some functions over the years at which both Mr McGarry and the defendant were present. There were one or two occasions at which Mr McGarry was present at a family function alone. Her affidavit ends with what seems to be the high point of her evidence, 'He never indicated that he was living in a domestic relationship with the defendant.'
Mrs Brownell was cross-examined but nothing she said in cross-examination significantly affected the evidence described above. To the extent that her evidence is relevant to the issues that I have to decide, I accept that evidence. However, it is reasonable to say that, given her lack of contact with the parties over the years, there is little that she can say which has weight in relation to the question of whether or not the defendant and Mr McGarry were in a significant relationship at any relevant time.
(b)Julian McGarry. Mr McGarry is the deceased's nephew. He is the son of the deceased's brother, Simon. When this witness was called and went into the witness box, I observed to counsel that he had been sitting in the back of the Court whilst the plaintiff was giving evidence. Although Mr Zeeman indicated that he may make submissions about that point at some later time, the matter was not raised again by either counsel. Given the content of the plaintiff's evidence as described above, I take the view that Mr McGarry's presence in Court while the plaintiff was giving evidence, is unlikely to have affected the reliability of his evidence in any significant way. I intend to ignore that circumstance in my assessment of his evidence.
Julian McGarry's affidavit evidence was that he had maintained close social contact with his uncle for many years, including in the period leading up to his death. He described the defendant as 'Gerard's on again/off again girlfriend'. He had never considered her to be his uncle's spouse or de facto partner. He gave evidence of various occasions when his uncle would indicate that the relationship was 'off'. He described other occasions when the deceased had attended functions without the defendant, and when asked about her, would reply 'I haven't seen her in a while'.
Mr Julian McGarry's evidence also included reference to some occasions when his uncle would join him on social outings. During these outings, he would sometimes make comments that would suggest he was attempting to meet other women. The deceased, according to the witness, 'repeatedly referred to Christine as 'his mistress' and as 'just a convenience'.' He described comments by the deceased to the effect that the deceased intended that the defendant would not obtain any of his money.
The overall effect of Mr Julian McGarry's evidence was to downplay the strength of the relationship. This is probably best summed-up in the final paragraph of his affidavit which reads as follows:
'My perception of Christine and Gerard's relationship was that they were not in a spousal or de facto relationship. Certainly it was my understanding from everything that Gerard told me during our many conversations that he wanted to avoid ever being in such a relationship again and he went to some effort to ensure there was some distance between himself and Christine. He also counselled me against "getting too involved" with women lest I be found to be in a de facto relationship, having already been through two divorces myself.'
In cross-examination, the effect of some of the more general statements contained in Mr McGarry's affidavit was weakened. For example, in relation to his evidence concerning the deceased having an interest in meeting other women, when pressed in cross-examination, he was able to provide little in the way of specific examples of this behaviour. The example he did provide was one occasion when he saw the deceased speaking to another woman during a night out, but without any real suggestion that the deceased was doing any more than engaging in general conversation. In fact, the impression I gained from Julian McGarry's evidence when cross-examined was that the clear assumption that underlay any conversation between he and his uncle relating to the defendant or to his uncle's purported interest in other females, was that his uncle was, in fact, in a long-term sexual relationship with the defendant. Overall, I did not regard Julian McGarry's perception of the relationship between his uncle and the defendant as reliable, and to the extent that it conflicts with the evidence of the witnesses called by the defendant, I prefer the evidence of those witnesses.
Subpoenaed documents
37 A large number of documents, subpoenaed from various sources, were placed in evidence by consent. These documents largely related to the personal affairs of the deceased. They included ambulance records, hospital records, taxation records and other records of similar nature. Both counsel referred to a number of entries. I have also perused the records myself. It is clear that on various occasions, the deceased, when filling out a formal document within the abovementioned categories, provided information which did not refer to the defendant as his partner, or if he did refer to her, referred to her as his girlfriend.
38 Some of the specific entries relied upon by Mr Gunson in submissions are as follows:
(a)Mr McGarry and the defendant each maintained singles private health insurance.
(b)In a Centrelink record, in response to a question in a form 'Do you have a partner', the answer given is 'No'.
(c)In some medical and hospital records, the defendant is not shown as Mr McGarry's first contact in the event of an emergency.
Simon McGarry
(a)A notable feature of this case is that the deceased's other sibling, his brother Simon McGarry, Julian McGarry's father, was not a party to the proceedings and was not called by either party to give evidence. Simon McGarry was served with the proceedings on the basis that, in the event that the defendant is not the spouse of the deceased for the purposes of the Intestacy Act, he will be entitled to share equally in the estate with the plaintiff. There was no explanation provided to me as to Mr McGarry's failure to take part in the proceedings, or the failure of either party to call him to give evidence.
(b)There is some evidence to suggest that Simon McGarry, had he been called to give evidence, may have been able to give relevant evidence concerning the nature of the relationship between the defendant and his brother. However, these indications are equivocal as to the nature of the evidence that he might have given. For example, on the one hand, in the family death notice which Simon authored, the deceased is described as the 'partner of Christine Robinson'. On the other hand, the defendant herself gave evidence of her shock and distress when Simon McGarry did not mention her when giving the eulogy at his brother's funeral, despite her presence there.
During the course of submissions, I raised with counsel whether an inference might be available from the unexplained failure of either party to call Simon McGarry to give evidence. I was referring in particular to the type of inference which might be led pursuant to the decision in Jones v Dunkel (1959) 101 CLR 298. If an inference is available, it would only be available against a party, if that party was in a position to and might have been expected to call Mr McGarry. In this case, that would only be the plaintiff. However, even if an inference is available, it would simply enable me to infer that nothing in Mr Simon McGarry's evidence would have assisted the case of the plaintiff. Such an inference is of little weight in terms of the determination of this case. When I have regard to the equivocal evidence of the plaintiff herself, it may simply be that Mr Simon McGarry had had little contact with his brother and was simply not in a position to offer any evidence which might bear on the question of the deceased's relationship with the defendant, one way or the other.
In the circumstances, I do not intend to draw any inference from the failure of Simon McGarry to give evidence."
I will turn shortly to grounds 1 and 9 of the notice of appeal to which I have already referred, as well as to grounds 10, 11, 12, 15 and 16 of the notice of appeal which assail the learned trial judge's approach to the evaluation of the evidence and the making of findings of fact and findings of credit. Before doing so however I will set out his Honour's reasons for concluding as he did that the deceased and the respondent were in a significant relationship immediately prior to the death of the deceased.
At [39]-[42] of his reasons the learned trial judge reasoned as follows:
"Were the defendant and the deceased in a significant relationship immediately before the deceased's death?
39 It is clear that many of the features that would normally be expected in a marriage or marriage-like relationship were not in existence immediately before Mr McGarry's death, and, indeed, had not been a feature of the parties' relationship for a significant period of time. A number of these features relate to the indicia contained in s 4(3) of the Relationships Act. For example, it is common ground and a particular feature of this case that the parties did not reside together in a common residence except for short periods in the early stages of their relationship (subpar (3)(b)). It is also clear that they maintained completely separate finances (subpar (3)(d)), and possessed little, if anything, in the way of common or shared property (subpar (3)(e)). References in official records contained within the subpoenaed documents concerning the nature of the relationship, according to each of the parties, are variable and equivocal.
40 On the other hand, I am satisfied, having regard to the evidence described above, that for a period of 23 years, (subpar (3)(a)) continuing up to the time of Mr McGarry's death, the parties shared a relationship in which each regarded the other as his or her exclusive partner in a sexual, emotional and practical sense. They fashioned their relationship around the particular circumstances of their lives, which included the specific difficulty in living together occasioned by Mr McGarry's hoarding problem. I am satisfied that they maintained an exclusive sexual relationship during this period (subpar (3)(c)) and had a mutual commitment to a shared life to the exclusion of anyone else, (subpar (3)(f)), albeit that they accepted that they would not live together and would not have a shared financial relationship. They spent time together on a daily basis, went to social functions together regularly and were accepted by members of each of their families and by their mutual and individual friends, as a couple (subpar (3)(i)). Their original intention to have children was frustrated by external circumstances, but that was an indication of an emotional relationship which I am satisfied continued in the ensuing years until Mr McGarry's death. In that sense, the attempt to have a child can be seen as an indication of the strength of the emotional bond between them, and of their 'mutual commitment to a shared life'.
41 I regard the duration of the relationship, confirmed by the many witnesses who gave evidence on that question, and its exclusivity during that time, as important indicators of the significance of the relationship to each of the parties to it. The plaintiff's counsel submitted that I should regard the relationship as an on/off relationship, akin to the type of romantic relationship that might be expected of young teenagers during a courtship. In my view, this is not a fair or accurate characterisation of the relationship. The relationship clearly started with a strong emotional bond, evidenced by the attempt of the parties to have a child. It then continued as a close emotional and sexual relationship, according to the configuration that developed and accorded with the particular individual circumstances of the parties, for a period of some 23 years, and was still at that level and perceived by others to be at that level, at the time of Mr McGarry's death. This, in itself, demonstrates the significance of the relationship in the lives of each of the parties.
42 I am satisfied that immediately before Mr McGarry's death, both he and the defendant regarded their relationship as the significant relationship in their lives. They were in a partnership, based on a romantic relationship, which was permanent and exclusive and involved a shared life, albeit not with some of the traditional features of a marriage-like relationship. However, as I have already discussed, the definition in the Relationships Act is intended to embrace relationships constituted by two persons as a couple, which are of importance or of consequence to the parties to that relationship, to the exclusion of others. I am satisfied that the relationship of the defendant and Mr McGarry which had commenced in 1992 and was still in existence immediately before Mr McGarry's death, answers that description. I am satisfied, therefore, that the parties were in a significant relationship within the meaning of the Relationships Act immediately before Mr McGarry's death."
Grounds of appeal as to significant relationship
I will deal with the specific errors asserted in grounds 10, 11, 12, 15 and 16 of the notice of appeal as having been made by the learned trial judge in arriving at his conclusion that a significant relationship existed between the respondent and the deceased immediately before the death of the deceased, and then turn to the overarching challenge to the conclusion itself set out in grounds 1 and 9 of the notice.
Ground 10
Ground 10 of the notice of appeal contends as follows:
"10 The learned trial judge erred in law by failing to follow or apply the principles applicable to making findings of fact in cases such as this and as summarised in Ashton v Pratt (No 2) [2012] NSWSC 3 at [17]-[18], such summary being based on principles derived from Watson v Foxman (1995) 49 NSWLR 315 at 319, Plunkett v Ball (1915) 19 CLR 544 at 548-549 (Isaacs J), Bovaird v Frost [2009] NSWSC 337 at [45], Varma v Varma [2010] NSWSC 786 at [418]-[422], Re Hodgson (1886) 31 Ch D 177 and Weeks v Hrubala [2008] 162 at [20] Young CJ at Eq."
The passage referred to in Ashton v Pratt is as follows:
"17 The plaintiff bears the onus of proof. In a civil case such as this, the standard to which she must prove her case is the balance of probabilities, but this nonetheless involves 'actual persuasion' [Watson v Foxman (1995) 49 NSWLR 315, 319].
18 In the case of a claim against a deceased estate founded on the oral utterances of the deceased, which only the deceased could have denied, the Court scrutinises the claimant's evidence closely [Plunkett v Ball [1915] HCA 14; (1915) 19 CLR 544, 548-549 (Isaacs J); Bovaird v Frost [2009] NSWSC 337, [45]; Varma v Varma [2010] NSWSC 786, [418]-[422]], and although there is no absolute legal requirement for it, ordinarily looks for some corroboration [Re Hodgson (1886) 31 Ch D 177; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)]."
The learned trial judge dealt with the question of onus of proof at the level of the broad question as to the existence of a significant relationship, as opposed to the narrower subsequent issue of separation at [32]-[35] of his reasons as follows:
"The onus of proof
32 Mr Gunson made a number of submissions in relation to the onus and standard of proof applicable to this matter. His submissions were heavily reliant upon comments made by Brereton J in Ashton v Pratt (No 2) [2012] NSWSC 3. Mr Gunson's submissions can be summarised as follows:
(a)The defendant carries the onus of establishing the circumstances necessary to bring herself within the definition of 'spouse' under s 6 of the Intestacy Act. This submission is largely based on the fact that Mr McGarry is deceased and, accordingly, is not available to dispute what the defendant says about the nature of the relationship.
(b)The Court must carefully scrutinise the defendant's evidence and in order to find that the defendant was Mr McGarry's spouse within the meaning of the Act, must be satisfied of that fact, albeit on the balance of probabilities, to a level of actual persuasion in relation to that issue.
(c)The Court should not accept the defendant's evidence as to the extent or nature of the relationship without corroboration.
33 In Estate Kouvakas; Lucas v Konakas (above), Lindsay J provided a helpful and detailed analysis of the principles and practice concerning an application for the revocation of a grant of probate or administration. His Honour referred to the question of the onus of proof in proceedings for revocation of a grant at [284] and [285]:
'In any event, on any application for revocation of a grant, close attention may need to be given to the facts of the particular case, with due regard to its procedural history and the due administration of justice.
Unless and to the extent that the principles governing the finality of judgments apply, any and all grants of probate or administration are revocable for a cause shown, and only if a proper cause is shown.'
And at [289] and [290]:
'That said, the conduct of an application for a revocation order may be informed by the character of an order sought consequentially upon revocation of a grant. The Court will generally be mindful that the propounder of a will bears the onus of proving the will to be valid, according to established practice articulated in cases such as Re Eger; Heilprin v Eger (Powell J, unrep, 4 February (1985) BC 8500997 at 72-74; Re Hodges v Shorter v Hodges (1988) 14 NSWLR 698 at 704-707; Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 289-290; and Ridge v Rowden; Estate of Dowling (Santow J, unrep, 10 April (1996) BC 9601342 at 39-46.
Nevertheless, upon an exercise of probate jurisdiction the Court exercises a vigilance beyond that necessary, or appropriate, in ordinary adversarial litigation. Questions of onus tend, in practice, to be governed not so much by who alleges what (Currie v Dempsey (1967) 69 SR (NSW) 116 at 125) as upon what it is that the Court, in all the circumstances, and informed by experience and considerations of fairness (JH Wigmore, Evidence in Trials at Common Law (Little Brown & Co, 3rd ed, 1940) volume 9 Book II), apprehends it must be satisfied of if a will is to be held valid.'
34 I am satisfied that the approach outlined by his Honour in these passages is the correct approach in proceedings such as this. Although his Honour referred to litigation concerning a grant based on a will, the wider context of the discussion makes it clear that the comments are apposite to proceedings relating to the revocation of a grant of administration arising out of intestacy. The cases relied upon by Mr Gunson in support of his submissions have little applicability to the issues before me. The judicial comments upon which he relied were made in respect of different issues and in a different context. For example, in Ashton v Pratt, the proceedings related to a claim by a person who had, from time to time, provided escort services to the deceased. The deceased was a married man of exceptional wealth. The claim was based on alleged oral promises made to her by him to settle a substantial sum of money upon her. The claim was in contract and, in the alternative, in reliance upon equitable estoppel, having regard to the oral promises. It was not asserted by the plaintiff that the promises had been witnessed by any other person or by a written document. In those circumstances, it is hardly surprising that his Honour should take the view that he should scrutinise the claimant's evidence closely and look for corroboration. The cases which were referred to by his Honour related to similar or analogous circumstances. Many of the cases, including those relating to the need for a party to an unregistered de facto relationship to prove the existence of the relationship, are in the context of proceedings initiated by that party, generally seeking an alteration of property interests or the enforcement of a legal promise made by the deceased person.
35 This case involves a factual determination as to the issue of the existence of a significant relationship, in a different context. A grant of administration in common form has been made, and the proceedings have been brought by the plaintiff seeking to revoke that grant. It is the plaintiff who will ordinarily carry the onus of proof, at least to establish the existence of the cause in respect of the revocation of the grant. However, when I apply the principles discussed by Lindsay J in Kouvakas and, taking into account that the grant which is sought to be revoked was granted in the non-contentious probate jurisdiction of the Court, and therefore without the scrutiny and analysis that would have occurred had the plaintiff contested the grant, it is appropriate to proceed on the basis that I should only determine that the requisite relationship exists if I am positively satisfied of that fact on the balance of probabilities. The determination that I am required to make is a determination of fact which requires me to take into account all of the relevant circumstances and then make a judgment based on the criteria set out in s 4 of the Relationships Act. In this case, the existence of some form of relationship over a lengthy period of time was not disputed by the plaintiff. Each party contends and positively asserts a number of factual matters in the nature of indicia which it says bear on the question of whether or not the admitted relationship amounted to a significant relationship. Having regard to the specific nature of this jurisdiction, and the type of exercise required to determine whether or not the relationship existed, I think that I should only take into account a positive matter of fact asserted by either party if satisfied on the balance of probabilities of the existence of that matter. I will then need to make an overall assessment in accordance with the type of exercise envisaged by s 4 of the Relationships Act." (Emphasis added.)
In my view his Honour was, with respect, entirely correct in his analysis of the question of onus of proof, and the distinction he drew with the position in Ashton v Pratt (above) was a valid one. It is also relevant to note, as was alluded to in the passage from Estate Kouvakas; Lucas v Konakas set out above from his Honour's reasons at [33] and emphasised by me, that probate litigation has an inquisitorial heritage not shared by common law adversarial contests.
Moreover, and in any event, in my view, if there was an appealable error by the learned trial judge in instructing himself on the question of onus of proof it could not have had any operative influence on the outcome of the appellant's action. As the learned trial judge observed at [36] the bulk of the evidence concerning the nature and detail of the relationship between the deceased and the respondent in fact came from the respondent and the witnesses she called. As will be seen, in my view, that evidence overwhelmingly established the existence of a significant relationship within the meaning of the Relationships Act. It cannot be said that the outcome turned on questions of onus of proof, or standard of proof for that matter.
Ground 10 is not made out in my view.
Ground 11
Ground 11 of the notice of appeal contends as follows:
"11 The learned trial judge erred in law when making findings of fact by attributing too much weight to his perceptions of the demeanour and credibility of witnesses when giving evidence contrary to established principles enunciated in authorities including Fox v Percy (2003) 214 CLR 118, State Rail Authority of New South Wales v EarthlineConstructions Pty Ltd (in liq) (1999) 160 ALR 588 and CSR Ltd v Della Maddalena (2006) 224 ALR 1."
In Fox v Percy (above) Gleeson CJ, Gummow and Kirby JJ said at [30]-[31]:
"30 It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana'):
'... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.'
31 Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."
In the present case documentary evidence demonstrated that the deceased when filling out forms such as ambulance and hospital records, taxation and like records, either did not name the respondent as his partner, or referred to her only as his girlfriend. This was essentially mirrored on the respondent’s part by her own concession in a letter from her solicitors which became exhibit P13 on the trial. None of that in my view renders this case one where the existence of contemporary materials, objectively established facts and the apparent logic of events, eliminates or displaces established principles about witness credibility. It must be recalled that the evidence also demonstrated that even during the earlier period of the relationship between the respondent and the deceased in the years from 1992 to 2000 when they lived together, conceived a child and spent some years participating in an IVF program, they nonetheless maintained separate finances and individual policies of private health insurance. It should also be recalled in the context of documentary evidence that the deceased’s published death notice prepared by his brother, Simon McGarry, who was not called as a witness on the trial, described the respondent with her consent, as the deceased’s “partner”.
This was a case which very much depended on the credit of witnesses, and it is clear that the appellant's counsel cross-examined the respondent and her witnesses with that fact very much in mind. Where a witnesses' evidence was not the subject of any significant challenge, or was not undermined in cross-examination, the learned trial judge was entitled to say as he did that he accepted the witnesses' evidence. On all other occasions however, his Honour carefully explained how and why the witness left him with that impression. I have set out his Honour's synopsis of the evidence, and as can be seen, his careful analysis was particularly evident in the case of key witnesses such as the respondent and Marion Robinson, Anneliese Smith and Rosemary Jones. Critically his Honour's findings as to credit and weight were made with the benefit of contrary submissions by counsel for the appellant at trial. I do not accept the appellant’s submission that his Honour looked at the evidence through the eyes of the respondent and did not balance the evidence out. The greater part of the evidence in fact came from the respondent and the witnesses called on her behalf.
Ground 11 is not made out in my view.
Ground 12
Ground 12 contends as follows:
"12 The learned trial judge erred in law by, contrary to s76 of the Evidence Act 2001, permitting witnesses called on behalf of the respondent to give evidence of their opinions that the deceased and the respondent were 'a couple' or 'partners' or to otherwise express an opinion as to the nature of any relationship between the deceased and the respondent."
Section 76 of the Evidence Act 2001 establishes the "opinion rule" which provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
It is true that the learned trial judge permitted some witnesses to give evidence that they regarded the deceased and the respondent to be or not to be a couple or partners, but, to my mind, this was not in any way regarded by his Honour as evidence admissible to prove the existence of the fact contended for by the party on whose behalf the witnesses were called, and thus did not offend the opinion rule.
An ultimate issue in the trial was whether the deceased and the respondent were in a significant relationship within the meaning of the Relationships Act. That involved the statutory question of whether they were persons "who have a relationship as a couple". It is clear to me from a consideration of his Honour's reasons for judgment that he was acutely aware that the ultimate question was to be answered by reference to all the circumstances of the relationship, including the indicia set out in s 4(3)(a)-(i) of that Act.
As it was, his Honour permitted the respondent's witnesses pursuant to the provisions of s 78 (b) of the Evidence Act to describe the relationship as one involving what they understood to be “a couple” but evidence of such lay opinion was necessary to obtain an adequate account or understanding of the witnesses’ perception of the relationship and was a proper use of the statutory provision. It cannot therefore be said in my view that his Honour based his decision on an acceptance of that evidence as evidence of opinions which of themselves proved or tended to prove the existence of the ultimate fact in issue.
In any event, to the extent that the learned trial judge may have had regard to the descriptions given by those witnesses and their cross-examination as to what they understood by the terms they used (for example as in the case of Moira Nicholls as recounted in his Honour's synopsis set out earlier in these reasons), his Honour was entitled to do so because one of the statutory indicia of a significant relationship was "the reputation and public aspects of the relationship" (s 4(3)(i) of the Relationships Act).
Ground 12 is not made out in my view.
Ground 15
Ground 15 contends as follows:
"15 The learned trial judge erred in law by failing to give any or any adequate reasons for preferring the evidence of the respondent and the witnesses called by the respondent over that of Julian McGarry."
The failure to give reasons when required amounts to an error of law. Phillips JA observed in R v Arnold [1998] VSCA 34; [1999] 1 VR 179, 181–182, [8]:
"It has frequently been emphasised how important is the giving of reasons to the process of judicial decision-making: see, for example, De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553 at 557-9 (where the earlier cases are recounted); Pettitt v Dunkley [1971] 1 NSWLR 376 at 380-2 (where again earlier authorities are recounted); Palmer v Clarke (1989) 19 NSWLR 158 (where the nature of 'the common law duty' imposed upon a judge was emphasised); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, especially at 278-81 per McHugh JA, and Sun Alliance Insurance Ltd. v Massoud [1989] VicRp 2; [1989] VR 8 at 19-20 per Gray J. In stating the relevant principles, it is always accepted that there is no universal obligation on the decision-maker, even though it be a court, to give reasons (for which proposition Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237 at 239 is commonly cited) and what is sufficient by way of reasons in a given case will always depend upon the circumstances (of which Wightman v Johnston [1995] VicRp 81; [1995] 2 VR 637 is a recent example). In Soulemezis at 280, McHugh JA (as he then was) said that 'the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons' (quoting Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). McHugh JA also pointed out (as did Gray J in Massoud) that the obligation to give reasons could no longer be seen as dependent upon the existence of a right of appeal: as to which see Tatmar Pastoral at 386 and Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666-7 per Gibbs CJ (although of course the hearing of an appeal has often provided the occasion for pointing out the difficulties created by the absence of reasons below). The duty to give reasons, qualified though it is, can be recognised now as 'an incident of the judicial process'."
This ground is, in my view, wholly unmeritorious. The "circumstances of the case" in the case of the impugned finding by his Honour were that he had set out reasons why he accepted the evidence of the respondent's witnesses to the extent to which he did, and had analysed questions of credit and weight in the case of the respondent and other key witnesses as he proceeded witness by witness in his synopsis. Against that background the reasons given by his Honour at the end of [36] were plainly adequate for the finding that he preferred the evidence of other witnesses called by the defendant to the extent that Mr McGarry’s evidence conflicted with that of those other witnesses. His Honour said:
"In cross-examination, the effect of some of the more general statements contained in Mr McGarry's affidavit was weakened. For example, in relation to his evidence concerning the deceased having an interest in meeting other women, when pressed in cross-examination, he was able to provide little in the way of specific examples of this behaviour. The example he did provide was one occasion when he saw the deceased speaking to another woman during a night out, but without any real suggestion that the deceased was doing any more than engaging in general conversation. In fact, the impression I gained from Julian McGarry's evidence when cross-examined was that the clear assumption that underlay any conversation between he and his uncle relating to the defendant or to his uncle's purported interest in other females, was that his uncle was, in fact, in a long-term sexual relationship with the defendant. Overall, I did not regard Julian McGarry's perception of the relationship between his uncle and the defendant as reliable, and to the extent that it conflicts with the evidence of the witnesses called by the defendant, I prefer the evidence of those witnesses." (Emphasis added.)
Ground 15 is not made out in my view.
Ground 16
Ground 16 descends into greater particularity in impugning the learned trial judge's finding that the respondent was a credible and reliable witness. It contends as follows:
"16 The learned trial judge erred in law and/or fact by finding that the respondent was a credible and reliable witness, or alternatively failed to give any or any adequate reasons for that finding, particularly in light of:
athe inconsistencies between par18 of the respondent's affidavit sworn on 21 July 2015 (sic), her oral evidence in cross-examination, and par18 of her affidavit filed in support of an application for a non-contentious grant of letters of administration;
bthe learned trial judge's findings and observations at [13]-[14] of his reasons for judgment delivered on 24 August 2016 when ruling on an application by the respondent to reopen her case at the conclusion of the trial;
cthe respondent's evidence when being cross-examined to the effect that she always maintained a separate household to the deceased, such evidence being corroborated by witnesses called on her behalf and not having been disclosed in her trial affidavit;
dthe respondent's failure to disclose to the Registrar of this Court when making a non-contentious application for letters of administration that her entitlement to do so claiming to be the spouse of the deceased was disputed by the appellant;
ethe respondent's failure to inform UniSuper, the trustee of a superannuation fund of which the deceased was a member, when applying for the deceased's superannuation benefit to be paid to her as the deceased's spouse that her assertion that she was the deceased's spouse was disputed by the appellant;
fthe generally unsatisfactory and unreliable manner in which the respondent gave evidence."
Ground 16(a) refers to the inconsistencies between par 18 of the respondent's affidavit read on the trial, and par 18 of her affidavit filed in support of her application for letters of administration. This issue arose in the context of the issue of whether, for the purposes of the Intestacy Act, the significant relationship between the deceased and the respondent was for a continuous two year period contiguous with the death of the deceased.
The learned trial judge dealt with the question of the contents of the two affidavits at [45] and [47(b)] of his reasons. However, as the issue relating to the Intestacy Act is the subject of at least grounds 3 to 7 and grounds 13 and 14 of the notice of appeal, it is convenient to now set out his Honour's reasons as to that issue in full. They appear at [43]-[49] as follows:
"The requirement that the significant relationship be in existence for a continuous period of at least two years
43 To fall within the definition of Mr McGarry's spouse, under s 6 of the Intestacy Act, it is necessary that the defendant is a person:
'who immediately before the intestate's death was a party to a significant relationship, within the meaning of the Relationships Act 2003, with the intestate that
(i) had been in existence for a continuous period of at least two years'.
44 Mr Gunson submitted that, in the event that I was satisfied that the parties had been in a significant relationship immediately before Mr McGarry's death, I should not be satisfied that that relationship had been in existence for a continuous period of two years. The basis of that submission is that I should interpret the legislation as requiring that the continuous period of two years has occurred immediately before the death of the intestate. He then pointed to evidence which he said supports a finding that the parties separated for a period of four months commencing in July 2011, and submitted that I should find that the relationship was not in existence during that period. The submission is, therefore, that the relationship had not been in existence for a continuous period of at least two years, immediately before Mr McGarry's death.
45 Mr Gunson's submission rests upon a statement contained in the defendant's trial affidavit, at paragraph 18. That affidavit, sworn on 10 July 2015, was read and relied upon as part of the defendant's evidence-in-chief at trial. Paragraph 18 reads as follows:
'The longest period of separation that Gerard and I had was approximately 4 years ago and it lasted for about 3 or 4 months. Gerard and I had an argument after both of us had too much to drink. I cannot even remember what it was about.'
46 Mr Gunson's submission proceeds on the basis of a precise calculation arising from the literal effect of that evidence. The affidavit was sworn on 10 July 2015. A separation commencing four years before that date, on or about 10 July 2011 and lasting for three or four months, would lead to the conclusion that the parties did not resume their relationship until October or November 2011. Given that Mr McGarry died on 6 August 2013, this would mean that the resumed relationship was in place for a period of less than two years. On the basis of this evidence, Mr Gunson submits:
(a)That a proper interpretation of the definition of spouse in s 6(c) of the Intestacy Act is that the relationship must have been in existence for a continuous period of two years immediately prior to the death of the intestate. A separation of three or four months interrupts the continuity of the pre-existing relationship and, hence, it could not be said that the relationship had been in existence for a continuous period of two years immediately preceding Mr McGarry's death.
(b)In any event, Mr Gunson argued that a separation of three to four months effectively ended whatever relationship preceded it, and the relationship which arose at the end of that period of separation was, in effect, a new relationship. Once again, it cannot be said that this relationship was in place for a period of two years.
47 The contents of paragraph 18 did not constitute the only evidence before me relating to this question. Other pieces of relevant evidence are as follows:
(a)The question of the last separation referred to in paragraph 18 was raised during the course of the defendant's cross-examination. A relevant extract from the cross-examination is as follows:
'When was the last time that you and Mr McGarry separated?……Well when you say 'separated' like we might separate for a week or something. We – we had a falling out one time about 7 years ago or something I'm not – I can't remember quite –
Look - …..-It's in the affidavit there.
Okay. How do you as define 'separate'?……Okay I didn't see him for a few months.
Okay…..Yep.
When was the last time - …..That that happened?
-That that happened?……Quite a few years ago, I couldn't tell you how many.
Roughly how – roughly how - …..Well he's been dead for three years so, I don't know. Eight years ago or something, I don't know.
Right is - about eight or you've got no idea?……I'm not sure, about eight I think.
Okay. When you say your 'affidavit', at the 10th July 2015 of paragraph 18, the longest period of separation that Gerard and I had was approximately four years ago and it lasted for three or four months. Was that true or was the evidence you just gave true?……I'm sorry?
Was that statement in your affidavit true or was the evidence you just gave that you believe eight years true?……Well I'm adding three years on. I mean that affidavit was made about 2013.
No, you saw this affidavit on the 10th July 2015, and it says 'the longest period of separation that Gerard and I had was approximately four years ago and it lasted for three or four months.' Do you agree that that's what the affidavit says?……Yes that's true, yep.
Right, so when you say 'eight years ago' - …..Look I'm really not sure, I really can't remember.
Well look do you agree that I gave you the opportunity to confirm whether you believed it was about eight years ago or you really didn't know. Do you agree that I asked you a question to that effect?……You did ask that yes.
And you - do you agree that you gave evidence about eight years ago?……I know when it was, it was when –
If you just respond to - …..the Beaconsfield Mine disaster happened, so whenever that was, I remember that.
Now if you could come back to my question, do you agree that having being asked to the effect 'was it about eight years ago or do you not know?' You said 'it was about eight years ago' or words to that effect……Okay, but I'm saying now I can remember –
Did you say that?……How I could remember when it is?
Was that your evidence? Was that your evidence though?……Yes.
Yep, now which one do you say is correct, you're evidence on oath
in the witness box or your evidence on oath in your affidavit?.....I'm trying to think when the Beaconsfield Mine disaster was, I – well then I remember that.
Well if you don't know which one's true, say I don't know?.....I'm not sure, I'm not sure.
You agree they both can't be true?.....Yes.'
(b)The administrator's oath sworn by the defendant on 16 October 2014 was placed in evidence. That document contains a paragraph with precisely the same wording as paragraph 18 of the abovementioned trial affidavit. The fact that the administrator's oath is sworn on 16 October 2014 leads inevitably to the conclusion that the separation referred to in that document is a period of separation which commenced in approximately October 2010. This inconsistency was not raised with the defendant during the course of her evidence by either counsel.
(c)Mr Gunson raised the question of separation with the defendant's sister, Ms Marion Robinson. Because of the precision of the timing of the relevant separation relied upon by Mr Gunson, it is appropriate to set out the precise extract of this cross-examination:
'Now, you're aware that there were several occasions that your sister and Mr McGarry, separated?.....There were a few occasions, yes.
And there was an occasion, about four years prior to July 2015, so let's say, about July 2011, when they separated for a period of three to four months, you know that?.....Yes.
Don't you?.....Yes, yes, yes.
And that was a matter that upset your sister?.....I can't really comment on that, she was – I – I think she – she considered that it probably would all sort itself out in the long run, which it did.
But as far as she expressed to – to – to you, at that time, the relationship was over, albeit potentially held with the – was hopeful that it might sort itself out?.....I can't really comment, other than say, that they were having one of – the term that she used, was Gerard and I aren't speaking.
And in fact, they'd separated though?.....Difficult for me to comment because I wasn't there, but the term she – she wouldn't talk a lot about it, but the term, as I say, was we aren't speaking. I'm not – people didn't take very seriously.
Well they're not interested in what you say, they might have said?.....No, yeah, okay.
Now there were other periods of separation throughout the time that they knew – knew each other as well, weren't there?.....Shortish periods, yes.
It was a fairly regular occurrence for these two, to have, for want of a better phrase, a tiff and a period of separation and then they'd get back together?.....It had become – it was in the early days and then it became less and less frequent.
But it continued, tiffs - ?.....No, no I thought – I – it hadn't happened for a long, long time.
And how long do you say - ?.....They were getting on very, very well.
And this was prior to the 2011 separation, is that your evidence?.....Yes.
Yep. Are you aware of any separations between the 2011 one and – ?……No.
- Mr McGarry's death?.....No I'm not.'
(d)Anneliese Smith was also cross-examined about this question. The relevant extract from her cross-examination is as follows:
'Now, you're aware, aren't you, that Mr McGarry and Ms Robinson, separated for a period of time in about July 2011?.....Yes.
And that was for a period of about three or four months?.....I'm not sure how long it was.
But there was certainly a period of separation about that time?.....A small one.
And there were periods of separation prior to that event as well?.....Well that's personal, sometimes she'd say to me, 'Gerard and I aren't talking', but that was rarely.
But you say that they're your best mates?.....Yeah sure.
Yep. So you talk about personal things?.....Pardon?
You talk about personal things?.....Talk what?
You – you talked about personal things with Ms Robinson?.....Yes.
Yeah. And she told you on occasions, that – that they'd separated?.....No, she just said, I'm not talking to him this week.
And except in July 2011, there was an event which is clearly in your mind, a period of separation?.....2011?
July 2011, the time I just asked you about?.....Um –
Where you agreed that – that there was a separation?.....Well that was another time when she wasn't probably talking to him for a week.'
(e)Robert Riddell was asked in cross-examination whether he was aware of any period of separation in about 2011. His response was 'no'. This denial has some significance because Mr Riddell was in constant contact with Mr McGarry and the defendant until Mr McGarry's death.
48 Having considered all of the relevant evidence which bears on this question of separation, I am satisfied on the balance of probabilities that Mr McGarry and the defendant were in a significant relationship for a continuous period of at least two years immediately prior to his death. I am satisfied of this despite the contents of paragraph 18 of the defendant's affidavit.
49 The evidence relating to the timing of the event that the defendant described as a 'separation' is imprecise. I am satisfied that neither she nor any of the witnesses questioned about this question turned their mind to the precise timing of this event. Each reference to an event occurring four years before each of the affidavits uses the word 'approximately' and that word or a synonym is also employed by witnesses when cross-examined on this question. As to the defendant's evidence, I gained the clear impression that the first time that she had turned her mind specifically to the question of the precise timing of the separation she has referred to, was when the point was raised with her during the course of cross-examination. It was clear from the extract of that evidence that she was not certain about the timing, and this is consistent with the differential timing provided in her respective affidavits. Of some significance, though, is that in cross-examination, quite spontaneously, she related the separation to a specific historical event, the Beaconsfield Mine disaster. During the course of submissions, it was agreed by counsel that this historical event had occurred in 2006. I am satisfied that the relationship between the separation and the historical event is likely to be a more reliable guide to its timing than approximations made without real thought being given to that question. I accept the defendant's evidence about this, and in particular the relationship between the historical event and the separation. Accordingly, if there was in fact a separation, it occurred and had ended well before the two year period immediately preceding Mr McGarry's death." (Emphasis added.)
In other words the learned trial judge in fact did what the appellant asserts by grounds 3 and 4 of the notice of appeal that his Honour did not do. That is to say, he did analyse the evidence and having found that a significant relationship had existed for some 23 years, he determined on a separate analysis of the evidence relating to "separation" that "the separations described by the defendant, including the last, could not, on the evidence, be taken to have manifested an intention by her to withdraw from the relationship". That finding was a finding upon a proper and sufficient evaluation of the relevant evidence that no "separation" between the deceased and the respondent had the effect of severing "the persistence of the indicia of a significant relationship", and that such relationship had not ceased but had continued. In my view nothing said in S v B (above) required the learned trial judge to do other than that which he in fact did when one has regard to his Honour's reasons as a whole.
Grounds 3 and 4 of the notice of appeal are not made out in my view.
Approached in the way I understand the learned trial judge to have dealt with this issue, it is clear that, although his Honour later made some obiter comments to the effect, he did not find dispositively, as suggested by ground 5 of the notice of appeal, that a significant relationship broken by a period of separation but then resumed between the same parties is simply a resumption of the same relationship. On the contrary, his Honour found that the significant relationship between the deceased and the respondent was not broken by a period that could properly be characterised as a separation that manifested an intention by the respondent to withdraw from the relationship. Indeed his Honour was left on the evidence with a clear impression that "such periods of difficulty in the case of the relationship in question in this case, were a normal part of an ongoing committed relationship".
Ground 5 of the notice of appeal is not made out in my view.
Ground 6 of the notice of appeal contends that the learned trial judge erred in that on a proper application of the law the only conclusion reasonably open on the evidence was that the last period of "separation" between the deceased and the respondent had the effect of ending the relationship then in existence between them. I am wholly unable to accept that contention. It should be clear by now that I regard the approach taken by the learned trial judge to accord with the approach derived from S v B (above) and I see no error in his Honour's analysis of the evidence or the findings he made.
Ground 6 of the notice of appeal is not made out in my view.
Ground 7 contends that the learned trial judge erred in law by failing to find that the respondent carried the onus of establishing the existence of a significant relationship between herself and the deceased. As I have observed already, I regard the evidence on the respondent's case as overwhelmingly establishing the existence and continuation of the significant relationship between the deceased and the respondent. The disposition of the action in favour of the respondent did not turn on any question of which of the parties bore the onus of proof on either the issue of the existence of a significant relationship or the question of its unbroken continuation.
Ground 7 of the notice of appeal is not made out in my view.
Ground 8 contends that the learned trial judge erred by finding that the respondent was the "spouse" of the deceased within the meaning of s 6 of the Intestacy Act. That finding flows from his Honour's conclusions that the relationship between the deceased and the respondent was an unbroken significant relationship in existence immediately prior to the death of the deceased. It follows from all that I have said that I regard his Honour's finding to that effect to be unimpeachable.
Ground 8 of the notice of appeal is not made out in my view.
Grounds 13 and 14
Grounds 13 and 14 of the notice of appeal contend as follows:
"13 The learned trial judge erred in law and/or fact by finding that the deceased and the respondent last separated in or about April 2006, such finding being contrary to the weight of the evidence and in particular:
aparagraph 18 of the respondent's affidavit sworn 21 July 2015 in which the respondent deposed that she and the deceased had separated approximately four years prior to the date upon which the affidavit was sworn for a period of approximately three to four months;
bthe respondent's evidence in which she 'maintained' that the contents of her affidavit were true;
cthe unequivocal and unambiguous evidence of the respondent's sister, Marion Robinson, that the deceased and the respondent separated for a period of approximately three to four months in about July 2011;
dthe unequivocal and unambiguous evidence of the respondent's friend, Anneliese Smith, that the deceased and the respondent separated in about July 2011.
14 The learned trial judge erred in fact by finding that neither the respondent, Marion Robinson or Anneliese Smith turned their mind to the precise timing of the separation of the deceased and the respondent in about July 2011 in circumstances in which the witnesses were not re-examined on the issue and there was no evidence upon which such a finding could be based."
These grounds of appeal seek to impugn the learned trial judge's reasoning as to the date of the last "separation" between the deceased and the respondent as set out at [43] and [49], in particular the reasoning at [49] of his Honour's reasons, which are set out above in these reasons at [49].
I have already said that I can detect no error in his Honour's treatment of the evidence of the existence of the identical par 18 in the two affidavits sworn by the respondent some 11 months apart which, in my view, disposes of grounds 13(a) and (b) of the notice of appeal.
As to grounds 13(c) and (d), I observe that the description therein of the evidence of the witnesses Marion Robinson and Anneliese Smith as "unequivocal and unambiguous" does not make that evidence axiomatically accurate or reliable. Whether or not his Honour was justified in concluding that neither of those witnesses had turned their mind to the precise timing of the particular “separation”, it was nonetheless open to the learned trial judge to conclude that the relationship between a specific historical event and the “separation” was likely to be a more reliable guide to its timing than the approximations given in the witnesses' affidavits. His Honour, having already accepted that the respondent was an honest and reliable witness, was entitled as he did to accept her evidence about any relevant separation having occurred at the time of the Beaconsfield Mine disaster.
As to ground 14, I do not regard the comment by the learned trial judge that he was satisfied that neither the respondent nor any of the witnesses questioned about this issue turned their minds to the precise timing of the “separation” as underpinning his conclusion that he was satisfied that the relationship between the “separation” and the historical event was a more reliable guide than approximations. Whether or not there was "real thought" given to the question, it is clear, to my mind, that what underpinned his Honour's finding was that he accepted the respondent as an honest and reliable witness and was impressed by her evidence in cross-examination identifying the relevant period by reference to the Beaconsfield Mine disaster.
I should also add that as appears from [47b] of the learned trial judge's reasons, his Honour was very conscious of the fact that the administrator's oath was sworn by the respondent on 16 October 2014 which would have dated the three to four-month separation as commencing about October 2010 and ending, on any view, by 1 March 2011, well outside two years of the death of the deceased on 6 August 2013. That fact is of relevance when it comes to assessing the reliability and weight of the evidence of the respondent, Marion Robinson and Anneliese Smith about this issue.
Grounds 13 and 14 of the notice of appeal are not made out in my view.
The obiter comments
At [56]-[61] of the learned trial judge's reasons, he made some obiter comments in deference to the submissions of counsel on a question of the construction of s 6 of the Intestacy Act that his Honour found it unnecessary to decide. He made the following observations:
"56 After the conclusion of the evidence, I invited further submissions from each party on the question of whether the proper interpretation of s 6(c)(i) was that the continuous period of two years must be immediately prior to the death of the intestate, or whether it can have taken place at some other time. Because of my findings of fact in respect of this case it is not ultimately necessary to determine that question. However, in deference to the arguments presented to me, I will make some observations about the issue.
57 Having considered the competing arguments, the better view is that it is not necessary that the continuous period of at least two years occur immediately before the death of the intestate. My reasons for this conclusion are as follows:
(a)It would have been a simple matter for Parliament to specify that the continuous period of at least two years must occur immediately before the intestate's death, if that is what was intended. The simple wording of the provision does not contain that requirement.
(b)As Mr Gunson submitted, the section is part of a series of inflexible rules dealing with the devolution of an estate in the case of an intestacy. The purpose of each subsection is to ensure that a relationship as a spouse will only exist if the relationship achieves certain criteria. In relation to subpars (a) and (b), the criteria is achieved by the existence of the marriage or the registration of the personal relationship. In respect of subpar (c), there are multiple criteria. Those criteria are:
(i)The person must be a party to a significant relationship with the intestate immediately before the intestate's death.
(ii)The relationship must be one that has either been in existence for a continuous period of at least two years, or has resulted in the birth of a child.
58 The fact that the relationship is in existence immediately before the intestate's death provides the relationship with the necessary temporal proximity to qualify the person as a spouse of the intestate. The reference to the birth of the child or the existence of a continuous period of at least two years refers not to a temporal requirement but to the substantive quality of the relationship. There is no reason, from a policy point of view, why that two-year period would need to exist immediately prior to the death of the intestate provided that the relationship is in existence at that time.
59 A similar requirement of substantive quality is required as a prerequisite to the right to apply for a maintenance order or alteration of property interests under the Relationships Act. Section 37 provides that a court is not to make an order unless satisfied that the partners referred to in such an application had been in a personal relationship for a continuous period of not less than two years. It is clear from the operation of the Act, including s 38, that the relationship would necessarily have come to an end before the application for maintenance is made. The necessary temporal connection between the application and the relationship is the two-year time limit provided by s 38. In the case of the definition of 'spouse' in the Intestacy Act, that temporal requirement is achieved by the requirement that the relationship be in existence immediately prior to the death of the intestate. The temporal requirement is sufficient to ensure fairness in the identification of a person who is the spouse of the intestate for the purposes of succeeding to the estate. It is that person who, at the time of the deceased's death, is the person with whom the deceased has entered into a significant relationship. The requirement that the relationship had been in existence for a period of two years, at some time, confers a quality of permanency on the relationship that avoids the intestacy laws operating in the case of a short-term or transient relationship. There is no reason why the two-year period must occur immediately prior to the intestate's death to achieve that quality, provided that the relationship has been resumed and is in existence immediately prior to the intestate's death.
60 A further aspect of Mr Gunson's submission in relation to this question is that, according to the principle he sought to extrapolate from the comments of Dutney J in S v B, a relationship which has resumed after a relationship ended by a separation in which one party or the other has withdrawn their consent to the relationship, is by definition a new relationship. Hence, counsel submits, unless the relationship at the time of death has been in existence for a continuous period of at least two years immediately prior to death, the existence of any prior relationship is irrelevant to the legislative requirement.
61 Once again, I am unable to agree with this submission. A significant relationship which has been resumed after interruption by separation, is still a significant relationship between the same two people. In the case of a separation which manifests a withdrawal of consent to be in the relationship, the relationship has been brought to an end, but then resumes by the restored mutual consent of both parties at a later time. I see no reason why the reference in s 6 of the Intestacy Act to a relationship that has been in existence for a continuous period of at least two years, should not refer to an earlier period prior to a separation, provided that the relationship is intact at the time of death. The fact that the legislation refers to a 'continuous' period of two years implies an acknowledgement that the relationship may from time to time have its continuity broken by periods of separation. A significant relationship broken by a period of separation but then resumed between the same parties, is simply a resumption of the same relationship."
Notwithstanding my remarks at [10] above, to the extent that it might be the case that a combination of grounds 2, 5 and 8 of the notice of appeal and/or the provisions of ss 47 or 49 of the Supreme Court Civil Procedure Act 1932, call for a determination of the question of whether the learned trial judge erred in failing to find that the significant relationship between the deceased and the respondent ceased for a period of time within the two-year period immediately before the deceased's death, and that accordingly the respondent was not the spouse of the deceased for the purpose of s 6 of the Intestacy Act because she did not meet the requirements of s 6(c)(i) of that Act, I record my view of the matter.
If it is the opinion of other members of this Court that my agreement with the learned trial judge is misplaced, and that the correct view is that his Honour erred in finding that the significant relationship between the deceased and the respondent did not cease to exist for the purposes of the Relationships Act as a result of a period of separation within two years immediately before the deceased's death, I would nonetheless find myself in agreement with his Honour's observation that there is no reason from a policy point of view why the two year period specified by s 6(c)(i) of the Intestacy Act would need to exist immediately prior to the death of an intestate person provided that the significant relationship was in existence at that time.
Whilst I do not think, with respect, that the learned trial judge's analogy of the application of s 37 of the Relationships Act to a person's right to apply for a maintenance order, or an alteration of property interests under the Relationships Act is entirely apposite, I do agree that the references in s 6(c)(ii) of the Intestacy Act to the birth of a child or the existence of a continuous period of at least two years are not references to temporal requirements, but to qualifying substantive qualities of the relationship required. I do not draw any comfort from the submission made by the appellant’s counsel that the use of the past perfect progressive tense in s 6(c)(i) is to be instructively contrasted with the use of the past perfect tense in s 6 (c) (ii).
If, correctly understood in the context of slightly different statutory provisions, anything said in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 by the learned primary judge, Hallen J at [2]-[4] and at [187]-[190] or on appeal by Emmett AJA in Sadiq v NSW Trustee and Guardian [2016] NSWCA 59 at [3]-[4], in accepting that ss 104 and 105 of the Succession Act 2006 (NSW) required that the existence of a de facto relationship for a continuous period of two years must occur immediately before the date of the intestate's death because, only then would one be able to establish that the applicant was a party to a domestic partnership with the intestate "immediately before the intestate's death", translates to s 6 of the Intestacy Act, then, with great respect, I would consider such an interpretation to be clearly wrong.
Hallen J was of the view that the two year period specified in s 105 of the Succession Act was a "minimum duration requirement" whereas, in my view, the two-year period specified in s 6(a)(i) of the Intestacy Act is a qualitative requirement in the same way as is the birth of a child resulting at any time from a significant relationship in s 6(c)(ii) of that Act. So understood, Hallen J's concern as to how, absent a minimum duration requirement, one would be able to establish that a person was a party to a domestic partnership with the intestate "immediately before the intestate's death" is mollified. It is only necessary that the significant relationship be in existence immediately before the intestate's death, and that that same significant relationship had been in existence at any time for a continuous period of at least two years.
My view as to this does not require me to embrace the proposition that a relationship formed or reformed between two people after the cessation of a prior significant relationship is necessarily always a resumption of that same significant relationship, as opposed to a new and different relationship which may or may not qualify as a significant relationship under the Relationships Act. If however it does so qualify as a resumption of the earlier significant relationship, and is in existence at the date of the death of a party to it intestate, then the surviving partner will be the spouse of the deceased for the purposes of s 6 of the Intestacy Act provided the relationship was in existence at the date of death, for however short a period. If it does not so qualify, if it lacks some of the necessary indicia of the earlier relationship and cannot be characterised in law as a significant relationship, it will not serve to constitute the survivor as the deceased's spouse.
In the present case however I am satisfied on all of the evidence that even if contrary to my view that any relevant period of "separation" was as deposed to by the respondent in her trial affidavit of 10 July 2015, and not earlier as suggested by her 16 October 2014 administrator's affidavit, or her historical referencing of the Beaconsfield Mine disaster, and even if contrary to my view any such separation could be characterised as breaking the significant relationship, I would remain of the view that the resumed relationship was a resurrection or re-formation of that same significant relationship. Indeed, the evidence demonstrates that as late as six months before the death of the deceased the couple were talking about the deceased clearing out his house and selling it, the respondent selling her unit and the pair buying a house and moving in together. As that same significant relationship existed at the date of the deceased's death the respondent qualified as his spouse for the purposes of the Intestacy Act.
Disposition
All actual and potential grounds of appeal fail in my view. I would dismiss the appeal.
File No 428/2017
MARY ANN BROWNELL v CHRISTINE ROBINSON
REASONS FOR JUDGMENT FULL COURT
PEARCE J
13 October 2017
I have had the advantage of reading the reasons for judgment of Estcourt J in draft form. I agree with his Honour that the appeal should be dismissed. With one reservation, I agree with his Honour's reasons.
The appellant's action was for revocation of the grant of letters of administration of Gerard McGarry's estate made to the respondent on 13 November 2014. Mr McGarry died intestate on 6 August 2013. For the reasons explained by the learned trial judge, and Estcourt J, the result of the action depended on whether, immediately before Mr McGarry's death, the respondent was a party to a significant relationship, within the meaning of the Relationships Act 2003, with Mr McGarry that had been in existence for a continuous period of at least two years. The trial judge found that:
(a)the respondent and Mr McGarry were in a significant relationship immediately before his death;
(b)the significant relationship had been in existence for a continuous period of at least two years;
(c)the period of at least two years was immediately prior to Mr McGarry's death; and
(d)s 6 of the Intestacy Act 2010 does not mean that the continuous period of at least two years must be immediately before the Mr McGarry's death.
For the reasons given by Estcourt J, all of the grounds of appeal which challenge the first three of the trial judge's findings should fail. That is sufficient to dispose of the appeal. Having made the findings of fact and law that the significant relationship had existed for the two years immediately before Mr McGarry's death, the conclusion reached by the trial judge on the final question was not determinative of the action. However, this appeal also challenges that conclusion. It is a question of statutory construction which, in my view, is attended by doubt. Given the decision of the majority of this Court, it is not necessary that I express a final view and I would prefer to not do so.
File No 428/2017
MARY ANN BROWNELL v CHRISTINE ROBINSON
REASONS FOR JUDGMENT FULL COURT
MARSHALL AJ
13 October 2017
I agree with the reasons for judgment of Estcourt J.
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