Brownell v Robinson
[2017] TASSC 5
•31 January 2017
[2017] TASSC 5
COURT: SUPREME COURT OF TASMANIA
CITATION: Brownell v Robinson [2017] TASSC 5
PARTIES: BROWNELL, Mary Ann
v
ROBINSON, Christine
FILE NO: 98/2015
DELIVERED ON: 31 January 2017
DELIVERED AT: Hobart
HEARING DATES: 19-21, 29 July, 24 August 2016
JUDGMENT OF: Brett J
CATCHWORDS:
Succession – Probate and letters of administration – Alteration and revocation of grants – Generally.
Kouvakas; Lucas v Konakas [2014] NSWSC 786, followed.
Ashton v Pratt (No 2) [2012] NSWSC 3, distinguished.
Aust Dig Succession [1124]
Succession – Intestacy and distribution on intestacy – Meaning of "spouse" under the Intestacy Act 2010.
Aust Dig Succession [1332]
Family Law and Child Welfare – De facto and other relationships under State legislation – Relationship – Whether a significant relationship under the Relationships Act 2003 – Parties in long term relationship without cohabitation.
Relationships Act 2003 (Tas), s 4.
Intestacy Act 2010 (Tas), s 6.
L v Tasmania [2006] TASSC 59, 15 Tas R 381; Jonah v White [2011] Fam CA 221, cited.
S v B [2004] QCA 449, [2005] 1 Qd R 537, distinguished.
Aust Dig Family Law and Child Welfare [493]
REPRESENTATION:
Counsel:
Plaintiff: C Gunson SC and R Spencer
Defendant: D Zeeman
Solicitors:
Plaintiff: TFR Lawyers
Defendant: Butler McIntyre & Butler
Judgment Number: [2017] TASSC 5
Number of paragraphs: 63
Serial No 5/2017
File No 98/2015
MARY ANN BROWNELL v CHRISTINE ROBINSON
REASONS FOR JUDGMENT BRETT J
31 January 2017
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.
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.
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.
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.
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.
Revocation of the grant of administration
The relief sought by the plaintiff is an order revoking the grant of administration of the estate. This Court's 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 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786.
By 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 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.
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. It is clear that the only basis of any entitlement to the estate by the defendant would be pursuant to that provision. Accordingly, if she was not the spouse of Mr McGarry at the time of his death within the meaning of the Intestacy Act, s 6, then she has no interest in the residuary estate and, hence, had no entitlement to a grant of administration in respect of the estate. On the other hand, if she was Mr McGarry's spouse at the time of his death, then she is entitled to the whole of his estate, and the grant of administration was lawful and appropriate. See the Probate Rules, r 22.
It follows that the grant of the relief sought by the plaintiff will depend on a finding as to whether at the time of Mr McGarry's death, the defendant was his spouse within the meaning of s 6 of the Intestacy Act.
The meaning of "spouse" under the Intestacy Act
Section 6 of the Intestacy Act provides 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."
It is common ground that Mr McGarry and the defendant had never been married and their relationship was not registered, and had never been registered, under the Relationships Act. Further, although they had conceived a child together in the early stage of their relationship, the pregnancy had not resulted in the birth of the child. Further efforts at conception through the IVF program had proved unsuccessful.
Accordingly, the only applicable basis for a finding that the defendant was Mr McGarry's spouse is s 6(c). The first question for consideration under that provision is whether immediately before the intestate's death, the relationship between Mr McGarry and the defendant was a significant relationship within the meaning of the Relationships Act.
Significant Relationship
A significant relationship is one of two personal relationships defined and dealt with by the Relationships Act. The other personal relationship is a "caring relationship". The definition relating to each 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.
5 Caring relationships
(1) For the purposes of this Act, a caring relationship is a relationship other than a marriage or significant relationship between two adult persons whether or not related by family, one or each of whom provides the other with domestic support and personal care.
(2) For the purposes of subsection (1), a caring relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care —
(a) for fee or payment in the nature of wages; or
(b) under an employment relationship between the persons; or
(c) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
(3) For the purpose of subsection (2)(a), a fee does not include a carer allowance or carer payment under the Social Security Act 1991 of the Commonwealth made to a party to a caring relationship in respect of care provided by that party to the other party to the relationship.
(4) If a caring relationship is registered under Part 2, proof of registration is proof of the relationship.
(5) If a caring relationship is not registered under Part 2, in determining whether two persons are in a caring 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) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(d) the ownership, use and acquisition of property;
(e) the degree of mutual commitment to a shared life;
(f) the performance of household duties;
(g) the reputation and public aspects of the relationship;
(h) the level of personal care and domestic support provided by one or each of the partners to the other.
(6) No finding in respect of any of the matters mentioned in subsection (5)(a) to (h), or in respect of any combination of them, is to be regarded as necessary for the existence of a caring 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."
The said relationships are mutually exclusive. By definition, they are each exclusive from the relationship of marriage. Each relationship is capable of registration pursuant to the Relationships Act. If a caring relationship is registered under that Act, then the surviving party to that relationship falls within the definition of "spouse" for the purposes of s 6 of the Intestacy Act. However, absent marriage or registration of a personal relationship, it is only the actual existence of a significant relationship which will confer that status on the surviving party.
Some observations can be made as to the definition of "significant relationship" in s 4(1). The essential requirement is that two adult persons "have a relationship as a couple". There is no definition of the term "relationship as a couple" in the legislation. The Macquarie Dictionary includes in the definition of "couple," the following:
"1 A combination of two; a pair.
2 Two people in a romantic relationship."
The notion that a significant relationship has, as its genesis, a romantic relationship, sits comfortably with the legislative context and, in particular, its distinction from a "caring relationship". However, given that context, it would seem improbable that a significant relationship will exist simply because two people are in a romantic relationship. Relevant aspects of the legislative context are as follows:
(a)The indicia of the relationship which a court is required to take into account in determining whether or not a significant relationship exists, having regard to s 4(3), suggests that the enquiry must go beyond whether or not two people are in a romantic relationship. Whilst s 4(3) does not specify the weight to be given to the various indicia, the fact that all of the indicia relate to matters which might be considered applicable to a marriage-like relationship suggest that that is the focus of an enquiry as to the existence of a significant relationship.
(b)The existence of a significant relationship will confer important rights and obligations on a party to that relationship. The most pertinent example is the legislative definition of "spouse" under the Intestacy Act, in issue in these proceedings. Further, under a range of other legislation, the definition of "spouse" now includes a person who has been in a significant relationship, albeit some times with some further, usually temporal, qualification. (For example, see the Partnership Act 1891, s 4; the Trustee Act 1898, s4; and the Testators Family Maintenance Act 1912, s 2.) A party to a significant relationship will also have an entitlement, in appropriate circumstances, under the Relationships Act, to seek an adjustment of interests in property and/or an order for maintenance against the other party.
(c)It is reasonable to assume that the name given to the relationship in the legislation attributes meaning to the intended nature of the relationship. The word "significant" is used as an adjective to qualify the nature of the relationship. The Macquarie Dictionary defines the word "significant" to mean: "important; of consequence". This definition has been endorsed and applied in respect of the use of the word in the phrase "significant probative value" as it appears in ss 97 and 98 of the Evidence Act 2001. (R v Lock (1997) 91 A Crim R 356 at 360-361). In L v Tasmania [2006] TASSC 59, 15 Tas R 381, Underwood CJ, with whom Crawford J (as he then was) and Tennent J agreed, said at [31]:
"In R v Lockyer (1996) 89 A Crim R 457, Hunt CJ at CL expressed the view at 459, that 'significant' meant more than 'mere relevance but something less than "a substantial" degree of relevance'. He went on to state that the primary meanings of 'significant' were 'important' and 'of consequence'."
The word "significant" is an ordinary English word. The definition referred to is consistent with the ordinary usage of the word in common language. The use of the word "significant" in the title of the relationship would suggest that what the legislation is intending to convey is that the relationship is a relationship as a couple, that is, a relationship which is or has as its genesis a romantic relationship, which is important or of consequence. Because the subject is a relationship between two people, the only rational inference is that it is those persons to whom the relationship must be important or of consequence.
In submissions, Mr C Gunson SC, who appeared for the plaintiff, referred me to the second reading speech in respect of the Relationships Act. A second reading speech is "extrinsic material" within the meaning of s 8B of the Acts Interpretation Act 1931, see s 8B(3)(f). That section includes:
"(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation —
(a) if the provision is ambiguous or obscure, to provide an interpretation of it; or
(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result; or
(c) in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision."
Having regard to these provisions, it is permissible in the interpretation of the statutory definition of significant relationship to give consideration to extrinsic material such as the second reading speech. That definition, having regard simply to its qualification by the adjective "significant", the criteria being that the two people have a relationship as a couple, and the determination being informed by a large number of general criteria, leads to the conclusion that the provision is obscure. Further, the application of the phrase "a relationship as a couple", given its ordinary meaning, as the sole determinant of a "significant relationship", would be capable of leading to results which are manifestly absurd or unreasonable, particularly having regard to the diverse legal consequences of such a relationship.
In his submissions, Mr Gunson relied heavily on references in the second reading speech to the repeal by the Relationships Act of the De Facto Relationships Act 1999, and its replacement of the latter Act as the Act regulating and determining the legal significance of relationships in respect of unmarried adult couples. Mr Gunson's point, as I understood it, was that I should have regard to the fact that the purpose of the legislation was to, in effect, extend the legal consequences and protections which had previously been afforded to a de facto relationship, to same sex couples. The point he was making was that a significant relationship should be interpreted in a similar way to a de facto relationship, as it appeared under the previous legislation, except without reference to the gender of the parties to the relationship. The definition of "de facto relationship" under the De Facto Relationships Act was as follows:
"'de facto relationship' means the relationship between a man and a woman who, although not legally married to each other, live together on a genuine domestic basis as husband and wife."
The comments in the second reading speech of Mrs Jackson, the then Attorney-General, upon which Mr Gunson relied, are as follows:
"In the new Relationships Bill 2003, the Bacon Labor Government recognises the diversity of relationships that make up modern Tasmanian society. In the bill two important types of relationship will be called personal relationships. The term 'personal relationships' covers significant relationships, which up to now have been called de facto relationships, and will now extend to same-sex couples.
…
The details of the bill are that: it repeals the De Facto Relationship Act 1999; it creates a category of 'significant relationship' applicable to unmarried adult couples, including same-sex couples, to replace the current category of 'de facto relationship'; it also creates a category of caring relationship between two adults, one or both of whom provide domestic support and personal care to the other; it allows for the registration of significant and certain caring relationships; and it assigns the property and maintenance rights and obligations that currently attach to de facto relationships to significant relationships and registered caring relationships."
Mr Gunson's submissions, based on these and other extracts, are correct within a limited context. There is no doubt that the primary purpose of the Relationships Act, as attested to by the second reading speech, was to give appropriate recognition to personal relationships which include relationships constituted by same sex couples. However, a fair reading of the second reading speech, and the legislation itself, indicates a legislative purpose that goes well beyond that goal. The Attorney-General, in the speech, makes it clear that the purpose of the legislation is to extend the treatment and protections previously afforded to de facto relationships, to a wide variety of relationships, in keeping with the reality of modern society. She speaks about the legislation recognising the diversity of modern relationships. Hence, it can be seen that the creation of a category of personal relationships divided into the sub-categories of significant and caring relationships, fulfils the purpose of redefining the nature of the relationship between two adult persons, which is to be recognised and protected by the law. This legislative purpose can be detected in the following passages of the second reading speech:
"Tasmanians in the twenty-first century enjoy a wide variety of relationships. The picture of the modern family is changing from one where a mother, father and their two children is the norm. Today people may marry or live in heterosexual or same-sex relationships, they may share a home with parents, grandparents, or perhaps with a carer or companion. We do not have to look far today to find children who are growing up with a stepmum or a stepdad. They may have a different dad to their brother, a different mum to their sister. And some of them may have two mums or two dads.
Far from being the demise of the family and the end of the world as we know it, what we are seeing is a change in the make-up of the family. The family remains the cornerstone of our society, just as it always has, but today it looks different from the way it did in the 1950s. As a society we are a lot more accepting of the diversity of these relationships. We have come a long way since divorce or a child born outside marriage brought shame and dishonour to families, and I for one am glad of that change.
We have reached a point in our history where, as a government and as a community, we have a choice to make. We can either hide behind the white picket fence and hang on to a 1950s picture of the world, or we can open the gate and take a look up the street to see what is really going on. In this context, government has a responsibility to recognise the relationship choices that are being made, and to support people to cope with the changes in their lives. One way to do this is by changing the law to accord these relationships with the full legal recognition they deserve."
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. Clearly, a de facto relationship between a man and a woman, or persons of the same sex, within the traditional understanding of that relationship under the De Facto Relationships Act, would fall within a significant relationship so defined. However, I do not accept the suggestion implicit in Mr Gunson's submissions that the definition of de facto relationship under the repealed legislation can simply be transposed into the definition of a significant relationship under the Relationships Act, with the only change being that there is no longer a reference to the gender of the parties. There are some very significant differences between the two definitions. An important distinction is that the definition of a de facto relationship required that the two persons "live together on a genuine domestic basis as husband and wife". By clear words, the definition of significant relationship makes no reference to gender, but also makes no reference to the requirement that the two persons must live together on a genuine domestic basis as husband and wife. This formulation is replaced by the requirement that they have "a relationship as a couple". The clause notes to the legislation, which also fall within the definition of extrinsic material under s 8B of the Acts Interpretation Act, record in relation to cl 4, the following:
"It is intended to include heterosexual de facto couples as previously defined in the De Facto Relationships Act 1999 and is extended to include same sex couples. A couple does not necessarily have to be living together to be in a significant relationship."
A review of comparable legislation in other States reveals that most jurisdictions have introduced legislation which to a greater or lesser extent seeks to extend various legislative consequences formerly applying only to persons in a marriage to other forms of relationship. Some, but not all jurisdictions, have sought to extend the nature of a relationship to include same sex relationships. However, my research reveals that Tasmania is arguably unique in defining personal relationships in a way that does not necessarily require an element of cohabitation or domestic partnership. The Family Law Act 1975 (Cth) defines "de facto relationship" by use of the formulation, "a relationship as a couple living together on a genuine domestic basis" – s 4AA(1)(c). Other similar formulations are:
· New South Wales – "who live together as a couple" – s 4(1) of the Property Relationships Act 1984 (NSW).
· Victoria – "a relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender)" – Relationships Act 2008 (Vic), s 39.
The De Facto Relationships Act 1991 (NT) s 3A(1), does not require persons to be "living together" or in a domestic partnership, but does require that the parties "have a marriage-like relationship".
I was referred to a large number of cases by both counsel concerning the application of some of the abovementioned statutory definitions. Some of these cases support the notion that parties can be regarded as living together, notwithstanding that they, in fact, do not share the same household. (See, for example, Western v Public Trustee (1986) 4 NSWLR 407.) However, I think that a considerable degree of caution must be exercised in applying such decisions to the circumstances of this case, under the Tasmanian legislation. Firstly, any determination from another jurisdiction involves the application of a significantly different legislative framework. Secondly, ultimately the determination of whether the parties have been in a significant relationship will be a question of fact and, in those circumstances, the use of comparable decisions, particularly under a different legislative framework, can only be of limited assistance.
There is, however, some utility in contrasting the legislative framework in other jurisdictions with the Tasmanian legislation. In Jonah v White [2011] Fam CA 221, Murphy J was required to determine whether or not the relationship in the case before him fell within the definition of a de facto relationship within the meaning of s 4AA of the Family Law Act (Cth), in particular having regard to the following subparagraph of that definition.
"(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis."
His Honour analysed a number of cases, including many to which I have been referred in this case. He noted that, ultimately, whether or not a relationship will answer to such a definition is a question of fact. He noted that there were two essential elements to the definition with which he was dealing. They were, that the parties to the relationship:
(a)must be living together on a genuine domestic basis; and
(b)as a couple.
In relation to the requirement that the parties live together, his Honour referred to comments of the Queensland Court of Appeal in KQ v HAE [2006] QCA 489, [2007] 2 Qd R 32 at [20] as follows:
"Nevertheless, the definition of 'de facto relationship' suggests that, usually, the parties should have, at some stage, been 'living together as a couple on a genuine domestic basis'. The fact that the parties have never lived together in a common abode must be acknowledged to be an indicator that they have not 'lived together as a couple on a genuine domestic basis'. This indication will be especially significant where the parties have not shared the common burden of maintaining a household. It would be a wholly exceptional case in which one could conclude that a man and a woman, who have never lived together as husband and wife in a common residence, and who have never made provision for their mutual support, have been 'living together as a couple on a genuine domestic basis'."
His Honour went on to say at [60]:
"In my opinion, the key to that definition is the manifestation of a relationship where 'the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis'. It is the manifestation of 'coupledom', which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed."
I have referred to these passages to demonstrate the effect of a requirement in a legislative definition that has, as a necessary constituent element, that the parties have lived together on a genuine domestic basis. The Tasmanian legislation does not include that requirement. When regard is had to the distinction between the De Facto Relationships Act and the definition of "significant relationship" in the Relationships Act, the clause notes which have been referred to, and the overall intention of the legislation to expand the ambit of the nature of a relationship which will be caught by the legislation, it is clear that the choice of language evinces an intention on the part of the legislature to not require as a necessary element of the definition of "significant relationship", the need to live together, or even necessarily to have a domestic relationship. The legislation should be interpreted according to the ordinary meaning of the words used in the provision.
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 onus of proof
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.
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."
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.
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.
The evidence
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 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.
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
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.
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.
Were the defendant and the deceased in a significant relationship immediately before the deceased's death?
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.
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".
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.
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.
The requirement that the significant relationship be in existence for a continuous period of at least two years
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".
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.
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."
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.
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.
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.
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.
This finding is sufficient to dispose of Mr Gunson's submission in relation to this question. However, even if there had been a separation of the nature described by the defendant, it is by no means clear that that would have broken the continuity of a relationship which I have found persisted over a period of 23 years. In her affidavits, read as part of her evidence-in-chief, the defendant said this about the nature of the separations:
"19Regardless of any tiffs Gerard and I had, we always got back together again. Our relationship lasted longer than both of Gerard's previous marriages put together." [Affidavit dated 10 July 2015.]
And further:
"Paragraph 8 – Although Gerard and I did had [sic] periods of not speaking they were mostly during the earlier part of our relationship but we always got back together again and our relationship became settled." [Affidavit dated 2 September 2015.]
This description of a period of "separation" is consistent with the evidence of Anneliese Smith set out above, particularly her insistence that a period of separation involved the defendant saying to her that she was "not talking to Gerard this week".
In his submissions on this question, Mr Gunson referred to comments of Dutney J in S v B [2004] QCA 449, [2005] 1 Qd R 537. The relevant comments are summarised by his Honour at [48]:
"Applying the passage of Mahoney JA in Hibberson v George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it."
The passage of Mahoney JA in Hibberson v George referred to by his Honour is to similar effect.
Mr Gunson extrapolates from these comments the proposition that a significant relationship will necessarily come to an end if there is a period of "separation". If the parties then resume the relationship, they have created a new relationship.
With respect to counsel, these propositions are not justified by the judicial comments referred to above. The point being made by their Honours is that a de facto relationship will depend for its existence on the mutual consent of both parties to be in that relationship. When that consent is withdrawn by one party, the necessary element of mutuality is destroyed, and hence the relationship is no longer in existence. It is not the fact of separation per se which is important, it is whether that separation manifests an intention on the part of one party to end the relationship, thereby withdrawing the necessary consent required for the existence of the relationship. In the case of a marriage or a registered relationship, the relationship will continue by operation of law irrespective of the withdrawal of consent.
These comments are, with respect, trite observations of the legal reality of each category of relationship. However, in the circumstances of this case, they have little significance. 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. The mere fact that one or both parties, because of an argument, for a period of time, did not see or talk to the other party, does not necessarily manifest an intention to bring the relationship to an end. The defendant was quite clear that any such period did not involve a withdrawal of consent to be in a long term relationship. On the contrary, the clear impression I gained was 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. In fact, the capacity of the relationship to endure periods of difficulty without real or long term impact on the viability of the relationship, demonstrates the degree of mutual commitment of the parties to that relationship.
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.
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.
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.
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.
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.
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.
In any event, I reiterate that I am satisfied that the significant relationship between Mr McGarry and the deceased existed immediately before Mr McGarry's death and had been in existence for a continuous period of at least two years prior to his death. Accordingly, I am satisfied that the defendant is the spouse of the intestate for the purposes of s 6 of the Intestacy Act. It follows that the defendant is entitled to the whole of the intestate estate and there is no basis for the revocation of the grant of administration.
The action is dismissed. I will hear counsel as to consequential orders.
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