Brownell v Robinson

Case [2017] TASFC 11

[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

  1. This is an appeal against the orders…

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Brownell v Robinson [2017] TASFC 11
Case
[2017] TASFC 11
Decision Date

CaseChat Overview and Summary

The appeal concerned the assessment of evidence by the primary judge regarding the nature of the relationship between the deceased, Mr McGarry, and the respondent, Ms Robinson. The appellant, Ms Brownell, a sibling of the deceased, argued that the primary judge erred in finding that a significant relationship existed between the parties, alleging errors in the assessment of witness credibility, the weight given to demeanour, the admission of opinion evidence, and a failure to provide adequate reasons for findings. The appeal was heard by Estcourt and Pearce JJ and Marshall AJ.

The central legal issues before the appellate court were whether the primary judge had properly evaluated the evidence concerning the relationship between Ms Robinson and Mr McGarry, particularly in light of the appellant's contentions regarding the judge's assessment of witness credibility, the weight afforded to demeanour, the admission of opinion evidence, and the adequacy of the reasons provided. The court was required to determine if the primary judge's findings were contrary to compelling inferences or if the judge had applied the correct legal principles in making factual findings.

The appellate court found no errors in the primary judge's approach. The primary judge had carefully considered the evidence presented by both parties, including extensive testimony from Ms Robinson and numerous witnesses called on her behalf, as well as evidence from the appellant and her nephew. The judge meticulously analysed the demeanour and credibility of witnesses, accepting Ms Robinson as an honest and reliable witness despite her unusual relationship circumstances and the challenges posed by her hoarding. The judge also accepted the evidence of other witnesses who described the parties as a couple or partners, finding their testimony credible and largely uncontradicted. Documentary evidence, such as formal documents where the deceased did not list Ms Robinson as a partner, was considered but ultimately did not outweigh the substantial body of testimonial evidence supporting a significant relationship. The primary judge concluded that the parties had maintained a loving and committed relationship for over 23 years, despite living in separate residences for much of that time due to the deceased's hoarding.

The appeal was dismissed. The appellate court affirmed the primary judge's findings that a significant relationship existed between Ms Robinson and Mr McGarry, finding no basis to interfere with the judge's assessment of the evidence or application of legal principles.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 evidence36 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."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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