Cooke v Bartrop

[2007] NSWSC 241

CITATION:	Cooke v Bartrop [2007] NSWSC 241
HEARING DATE(S):	12, 13, 14 and 15 March 2007
JUDGMENT DATE :	22 March 2007
JUDGMENT OF:	Hammerschlag J
DECISION:	Claim dismissed
CATCHWORDS:	SUCCESSION – Intestate estate – Claim by alleged de facto wife – Whether plaintiff a de facto wife under s 32G of the Wills, Probate and Administration Act 1898 and s 4 of the Property (Relationships) Act 1984 – Question of fact – Evaluation of degree of mutual commitment to a shared life – De facto relationship not established
LEGISLATION CITED:	Wills, Probate and Administration Act 1898 (NSW) Property (Relationships) Act 1984 (NSW)
PARTIES:	Marion Cooke Graham Leslie Bartrop as Administrator of the Estate of the Late Gary Mark Bartrop
FILE NUMBER(S):	SC 01368/2005
COUNSEL:	L S Ellison SC (Plaintiff) E Cohen (Defendant)
SOLICITORS:	Marsdens Law Group (Plaintiff) Kerrisons The Law Firm (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMMERSCHLAG J

22 MARCH 2007

01368/2005 MARION COOKE v GRAHAM LESLIE BARTROP AS ADMINISTRATOR OF THE ESTATE OF THE LATE GARY MARK BARTROP

JUDGMENT

The issue

1 Was the plaintiff Marion Cooke the de facto spouse of Gary Mark Bartrop when he died? That is the sole issue in this case.

2 If she was, his estate shall be held on trust for her absolutely by operation of s 61B(2) of the Wills, Probate and Administration Act 1898 (NSW) read with s 32G of that Act and s 4 of the Property (Relationships) Act 1984 (NSW).

3 I shall refer to the deceased as “Gary”, with no disrespect intended. Gary died, aged 42, at about 7.00am on 28 January 2004 in his Toyota van in a head-on collision with a garbage truck on The Northern Road, Bringelly.

A brief history of the plaintiff and Gary and their relationship

4 Gary was born in England on 29 May 1961. He migrated to Australia in 1980 at the age of 19. He was preceded by his older brother Graham Leslie Bartrop (the defendant) who came in 1977. Gary was followed by his parents and his two younger brothers, Grant and Glenn, in 1981.

5 Gary lived in a house which he owned at 233 Cobbitty Road, Cobbitty (“Cobbitty Road”). Cobbitty is in the Camden - Campbelltown area of New South Wales. When he died there was mortgage finance on it of about $60,000 owed under two loans from the Commonwealth Bank.

6 Gary had a passion for antiques and oddities including unusual motor vehicles. He owned a Triumph Herald motor vehicle which he named “Eric the Erald”. He sold antiques and bric-a-brac, at one time under the name “The Squirrel’s Loft”. He also did handyman work.

7 Gary also had a passion for dancing of the Rock ‘n’ Roll variety.

8 Gary never married.

9 From about June 1997 he started dating Renata Rosa Sharpe, with whom he had a sexual relationship until about March 2000, from which time onwards the relationship was platonic. They remained close friends until his death. Renata Sharpe was clearly a large presence in Gary’s life.

10 The plaintiff and Gary met in about February 2002 at Big Al’s Rock ‘n’ Roll dance classes held at an institution called Sweeney’s on Old Campbelltown Road, Ingleburn.

11 She was a full-time customs officer working for the Australian Customs Service based at Sydney Kingsford Smith Airport. She did shift work involving long hours, including shifts which started at around 4.00am in the morning, and she also did weekend work. She was employed by the Australian Customs Service the whole of the time she knew Gary.

12 The plaintiff has never married.

13 She had a relationship with Wayne Primrose and was engaged to him at about age 19. Joel Primrose, her son, was born just before she turned 20. She finally separated from Wayne when Joel was about 6 or 7 years old in about 1990-1991.

14 When the plaintiff and Gary met, she was living with her parents, Rosemarie and Terrence Cooke, at 40 Carrington Circuit, Leumeah (“Carrington Circuit”).

15 The plaintiff has a younger brother, Mark Cooke.

16 Fellow attendees at the Rock ‘n’ Roll dance classes were her friends Lorraine Bird and Russell Bird and their daughter Michelle Jakobsson (nee Bird). Lorraine Bird described herself as the plaintiff’s best friend at the time.

17 In late May 2003, the plaintiff, after encountering Gary at Rock ‘n’ Roll dancing, gave her mobile telephone number to Michelle Bird and asked her to give it to Gary. She was attracted to him. Very shortly thereafter, on 27 May 2003, he called her and asked her out to dinner to a restaurant in Leumeah. About a week later they went out to dinner at Chilli’s Texas Grill in Woodbine, and a week after that had a day out to Fitzroy Falls with lunch at the Pie Shop at Robertson and a drive down to the blowhole at Kiama.

18 The plaintiff says that after they had dated for approximately one month she moved in to live with Gary at Cobbitty Road. This would put that event at about the end of June 2003. Up until that point she would visit him at Cobbitty Road but would have to leave by 9.00pm because she was doing early shifts. She says Gary asked her to move in so they could spend more time together and he would not have to worry about her driving home tired.

19 The duration of the relationship from the first date to Gary’s death was thus approximately eight months. Approximately seven months elapsed from when the plaintiff started staying at Cobbitty Road until Gary died.

20 During the early stages of their relationship their activities included eating out together at restaurants and attending rock ‘n’ roll dance functions, including one in Canberra.

21 From the early stages, and throughout, a sexual relationship existed.

22 Sometime about the middle of 2003 they decided to open a coffee shop, in partnership, at 300 Cobbitty Road, Cobbitty. The plaintiff had some catering and hospitality experience. According to her, Gary had said he wanted “a change in life direction. A fresh start.” They named the coffee shop “Garion’s”, an amalgamation of their names. Gary devoted time to renovating the premises. To fund it and to pay for living expenses whilst he did it, he took redraws from his mortgage facility with the Commonwealth Bank. The plaintiff took out a personal loan and contributed as well. Christine Yardley recounted that Gary said to her that the plaintiff had put in around $7,000. Together they took out a retail shop lease on 1 August 2003. Their landlord was Christine Parrish. The plaintiff signed as Lessee.

23 The coffee shop opened in September 2003 and Gary worked there on a semi full-time basis, and the plaintiff after shifts, on weekends and on days off. She says she did all of the preparation of food for the coffee shop “at home”, (presumably meaning Cobbitty Road) after the shop was closed, as well as shopping for Cobbitty Road and the shop. When business was slow, she used some of the money earned from her job to pay some of the partnership bills. She also contributed towards household expenses, sometimes shopping at Coles or Woolworths at Camden and Woolworths at Narellan.

24 Frequent visitors to the coffee shop were members of the local Anglican Church which was nearby, including the Minister, Reverend Stefan Bull. Mrs Bird often worked in the coffee shop, she says, largely without remuneration.

25 On 3 September 2003, the plaintiff’s father, Terrence Cooke, had a heart attack. The plaintiff took off a week’s sick leave to assist. She took her father to hospital. She told her employer she was his prime carer. Although her mother does not drive and the plaintiff was taking her to Liverpool hospital, she recalls staying over at Carrington Circuit “maybe once or twice” when her father had the heart attack.

26 In October 2003, the plaintiff asked Gary to marry her. According to her, they agreed to hold off because of her father’s recent heart attack and because the coffee shop was not doing too well. She attributes to Gary statements that they needed to work out whether they wanted children because the problem was their age, and a statement that he did not want the relationship to end. She also attributes to him a statement that he wanted to be able to take her away to the snow, being something he would do with her that she would be doing for the first time. During this conversation, she says, they agreed to sell the coffee shop so that they could relax and do things such as go away on holidays together. The coffee shop had at this point been open for a bit over a month.

27 Gary’s reaction to the marriage proposal and the prospects of matrimony is the subject of evidence from various witnesses to whom he talked, including the defendant, the defendant’s fiancée Bridget Bebber, Christine Yardley (a friend and regular dance partner of Gary’s who sometimes worked in the coffee shop), Renata Sharpe, Louise Brown (a person who did an upholstery course with Gary at Lidcombe TAFE and who employed him as a handyman) and Christine Parrish (a friend and the coffee shop lessor). There was also evidence from the Reverend Bull and the plaintiff’s friends Mr and Mrs Rabbidge about conversations where the subject of marriage was mentioned in the presence of Gary.

28 They did not marry.

29 The coffee shop enterprise did not work out. There is evidence that there was tension between the plaintiff and Gary at the time of the opening because the plaintiff was late that morning and she was supposed to have brought the coffee beans. Also, the coffee shop was not an economic success. There appears to have been tension between the plaintiff and Gary about the level of the plaintiff’s commitment to the enterprise in the context that she continued to work arduous hours for the Australian Customs Service. Either way, the change in direction and the fresh start Gary contemplated with respect to the coffee shop was unsuccessful.

30 The relationship had its vicissitudes. One of these concerned Gary’s relationships with Renata Sharpe and Christine Yardley. Christine Yardley recounted her final conversation with Gary before his death to the effect that the plaintiff had driven away all his friends. Another related to a New Year’s party which Gary attended at the home of some people called the McMahons, at Camden. A third concerned Gary’s dancing with female dancing partners. Graham Bartrop recounted a conversation in which Gary said of the plaintiff, “She complains about me dancing with other women but she won’t dance. So she doesn’t want me dancing.” Another concerned the coffee shop situation.

31 There was a thunderstorm at Cobbitty in November 2003. The power went down. Both Renata Sharpe and Christine Yardley called in at the coffee shop. They and Lorraine Bird sat with Gary. The plaintiff arrived later. Christine Yardley says the plaintiff did not talk to them and left after a couple of minutes. Shortly after Marion left, Gary said “What have I done now?” There was a subsequent discussion between Gary and Christine Yardley about the work pressure the plaintiff was under and that she might have been suffering from Chronic Fatigue Syndrome.

32 On 8 December 2003, Gary drove the plaintiff to the Campbelltown medical centre because she had a kidney infection. Also during 2003, Gary discovered a lump on the plaintiff’s breast, which transpired to be benign.

33 During the course of the relationship, the plaintiff and Gary attended Rock ‘n’ Roll gatherings, ate out at restaurants, bought take-aways which they ate at Cobbitty Road, made day trips, went to the cinema and visited the plaintiff’s family together. There are various examples of such activities. Further examples of what they did together include the following: they had Christmas Day 2003 lunch at the plaintiff’s parents’ house at Carrington Circuit together with the plaintiff’s brother Mark Cooke, the plaintiff’s son Joel Primrose and Mrs Bird; they also had dinner at the plaintiff’s parents’ house on Boxing Day; and they hosted a barbeque at Cobbitty Road on about 28 December 2003.

34 They were invited to a New Year’s Eve gathering at the house of friends in Camden. Renata Sharpe recounted a conversation with Gary the day after New Year’s Day about the plaintiff having arrived at the party after work. Christine Yardley was also there at the party and says the plaintiff arrived shortly before midnight. She drove her own car to Gary’s house and Gary drove Christine Yardley home in his car. On reaching Cobbitty Road he said to her “I don’t think I had better ask you in.” From what was said by Gary to Renata Sharpe, the plaintiff spent New Year’s Day crying.

35 On 5 January 2004 they visited Gary’s father in Barellan, New South Wales, and stayed the night; the following day they visited Gary’s brother Glenn in Griffith and stayed over; they did some sight-seeing in and around Griffith and drove back to Barellan on 7 January 2004 and thence to Canberra where they stayed overnight with a cousin of the plaintiff; they had a barbeque there the following day and in the afternoon drove back to Cobbitty Road; on about 16 January 2004, they went to dinner with a group of friends at an Italian restaurant in Kirrawee, where the possibility of going on a cruise was discussed.

36 On 20 January 2004, that is, in the week before Gary died, he and the plaintiff had a disagreement about Renata Sharpe. There had, according to the plaintiff, been a conversation in about July 2003 between her and Gary about Renata Sharpe concerning a complaint which Renata Sharpe had made to Gary. Renata Sharpe had, according to the plaintiff’s account of what Gary said, complained about Gary having given a key to Cobbitty Road to the plaintiff whereas he had never given one to Renata Sharpe the whole time they were together and Renata Sharpe had “never even stayed one night”. The plaintiff says that in this conversation Gary made other statements critical of Renata Sharpe.

37 Gary and Renata Sharpe were undoubtedly close and the dispute in January 2004 was about his relationship with her. On the night of the disagreement the plaintiff went to Carrington Circuit to sleep. The plaintiff wrote two letters, one to Renata Sharpe and one to Christine Yardley. The letter to Renata Sharpe was left on the coffee table at Cobbitty Road.

38 After she had left Cobbitty Road following the disagreement, the plaintiff says Gary called her during the night and told her he wanted her to come home, but she replied that she couldn’t because she had to work the next day.

39 However, she changed her mind and at approximately 4.00am she drove to Cobbitty Road. She had a conversation with Gary in which she spoke about the situation with Renata Sharpe and what Renata Sharpe had done to her. She attributes to Gary a statement that “I’m such an idiot, I didn’t see it. I’m sorry”. She says the letter she had written to Renata Sharpe was on the computer keyboard, “next to our bed”. She says Gary said he was not going to give it to Renata Sharpe and that he had already had one relationship ruined and he was not having another (presumably ruined). He returned to her the un-opened letter to Christine Yardley. However the letter to Renata Sharpe is in evidence via her affidavit. She says, and I accept, that Gary gave it to her.

40 Gary’s reaction to this event (that is, the Renata Sharpe episode) is the subject of evidence from a number of witnesses including Bridget Bebber and Renata Sharpe herself. Bridget Bebber attributes to Gary a statement that the plaintiff just took her bag and “wasn’t coming back”. She also says he said to her that that night he was in bed, he heard the key in the door, and that she (the plaintiff) came in and acted like nothing had happened.

41 Whether the plaintiff returned having been asked by Gary, or of her own accord, it is clear that she returned that morning.

42 The plaintiff and Gary went to Wollongong on 21 January 2004. They celebrated the Chinese New Year with family and friends at the Pink Diamond restaurant in Campbelltown, and they had friends over for a barbeque on 25 January 2004.

43 Three days later Gary was killed.

The law

44 Section 4 of the Property (Relationships) Act (NSW) provides as follows:

“ 4 De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.


(3) No finding in respect of any of the matters mentioned in subsection (2) (a)–(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto 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.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

45 It is for the plaintiff to establish the existence of the de facto relationship claimed as at Gary’s death.

46 The existence or otherwise of such a relationship is a question of fact.

47 I now proceed to determine whether that relationship existed at the relevant time in accordance with the requirements of s 4 of the Property (Relationships) Act (NSW).

The duration of the relationship

48 The relationship was for a maximum of about eight months which, in the scheme of things, might not be considered to be a substantial period. However, the end of the relationship was brought about by the accidental death of Gary and not by any voluntary act of the parties. The relatively brief duration of the relationship is not, in my opinion, a matter to which I attribute significant weight in this case.

The nature and extent of common residence

49 There was a hard-fought contest between the parties as to the nature and extent of the common residence. The position put on behalf of the plaintiff was that Cobbitty Road became her home. It was put on behalf of the plaintiff that the relationship was conducted out of realty owned by Gary at Cobbitty. The position put on behalf of the defendant was that the plaintiff stayed there from time to time but that Carrington Circuit remained her home and was so regarded by her.

50 The plaintiff’s evidence was that from about mid June 2003 she spent all nights at Cobbitty Road except for about ten and that most of the ten were in the beginning when they decided to set up the coffee shop. From about Christmas 2003 to Gary’s death, her evidence was she spent only one night away. This was the night after the disagreement about Renata Sharpe. There is, however, evidence from Christine Yardley that according to Gary, the plaintiff was back at Carrington Circuit on New Year’s Day because she had to work that night.

51 There was evidence from Mr and Mrs Rabbidge that the plaintiff’s car was seen many times outside Cobbitty Road and that her Australian Customs Service uniform was, on quite a number of occasions, on the clothesline.

52 Mrs Lorraine Bird gave evidence that in about June 2003 the plaintiff had said to her “I’ve moved in to live with Gary in Cobbitty”. Mark Cooke attributed to the plaintiff in around April/May a statement that, “I have moved in with Gary at Cobbitty. It is easier for me to go to work from there”. On the other hand, Kim Kohlmann, who also worked for the Australian Customs Service, and who described herself as the plaintiff’s ex-friend, gave evidence that she could not recall the plaintiff ever saying that she was living at Gary’s place or living together with Gary. The defendant said Gary never told him that the plaintiff had moved in to Cobbitty Road. Christine Yardley said she had a conversation with Gary around October/November 2003 in which he said, referring to the plaintiff, that “She lives with her parents”. Bridget Bebber recounted a conversation on 26 January 2004 in which Gary indicated that the plaintiff was not living with him. Renata Sharpe gave evidence that Gary did not mention to her at any time that the plaintiff had moved in. Grant Bartrop said that Gary did not mention to him that the plaintiff had moved in to live with him.

53 With respect to Mrs Bird, I found her to be an unsatisfactory witness. She was aggressive and reluctant to answer questions. In particular, I found her evidence that she did not know how far it was from her house to the coffee shop or how long it took her to do that trip (which she did three or four times a week) to be implausible. I did not consider that evidence to be honestly given. She was clearly entirely partisan in the giving of her evidence and I attribute to it no weight. Mark Cooke was adamant that his sister’s relationship with Gary was on foot from February 2003. In this regard he was clearly mistaken and the statement he attributed to the plaintiff in around April/May if made, must have been made later. Apart from this, he appeared to me to give an honest account as he saw it of the events, although he was clearly trying to be supportive of the plaintiff.

54 Gary gave the plaintiff a key to Cobbitty Road, something he said he had not given to a girlfriend before. His brother Graham had a key. Graham slept there from time to time and paid rent to Gary for a room.

55 When she was at Cobbitty Road, the plaintiff often did the cooking. She described it as follows: “I went home most nights and cooked tea, yes”. She said she mainly did the cooking, washing, vacuuming, changing the sheets, making the bed, hanging out the washing and bringing in the clothes. She also pulled off and cleaned Gary’s dirty shower curtain, bought a new one and replaced the old one. She brought sheets and when it was very cold she brought out a crocheted woollen blanket.

56 There was an issue between the parties as to the clothing and other items the plaintiff brought to Cobbitty Road. She brought what she described as a lot of her things to the house. She described these as mainly including kitchen items because she liked to cook. They included her special knives and other cooking utensils. Her evidence was that there were a lot of items of hers at Cobbitty Road during Gary’s life and when she stopped living there. She says all her uniforms were at the house as well as the uniform for the coffee shop, and that she did not need many casual clothes as she was either working at the Australian Customs Service or at the shop. She gradually moved out the majority of her winter clothes from Carrington Circuit.

57 There was also an issue about what cosmetics and toiletries of the plaintiff there were in the house when Gary died and how they were kept. The plaintiff’s evidence was that on the first occasion she moved all her toiletries, hairdryer, toothbrush, toothpaste, make-up and all her personal items. She said that her shower gel, body and bath oil, night cream and hand lotion were kept on a shelf in a cabinet at the end of the bath. Her hairdryer, shampoo, conditioner, perfume and sanitary pads were kept on one shelf. Her make-up was kept in a small purple flower bag on a shelf in the bathroom. All of these items were visible if one walked into the bathroom.

58 Joel Primrose gave evidence that he had noticed the absence of his mother’s toiletries when he visited his grandparents at Carrington Circuit.

59 So far as clothing is concerned, the evidence showed that there were wardrobes in the main bedroom where her and Gary slept but none of her clothes were kept in them.

60 Almost immediately after Gary’s death, photographs were taken of the house and its contents.

61 The defendant gave evidence as to what belongings of the plaintiff there were in the house immediately after Gary died. As to clothes, there was a suitcase in the bedroom next to the wardrobe with the plaintiff’s clothes in it and a plastic bag with female shoes in it. There was a pair of female pyjama bottoms on top of a portable air conditioner in the bedroom. There were no other items of female clothing in the bedroom except for a French tart’s outfit which was Gary’s and which he had used as fancy dress. A few days later, further items of clothing including a work shirt were found in the laundry as well as chrome metal badges, apparently those of the plaintiff. A black handbag, apparently new, was found later.

62 Bridget Bebber and Renata Sharpe were also at Cobbitty Road on 29 January 2004. Their evidence as to the clothing in the house is substantially to the same effect as the defendant.

63 As to toiletries and the like, according to the defendant, in the bathroom there was a toiletry bag with female toiletries in it, a make-up bag and a hairdryer. He could not recall any individual female toiletry items “lying around” in the bathroom. Renata Sharpe’s evidence was that she had occasion to use the bathroom at Cobbitty Road from time to time and did not ever see any loose toiletry items that would be used by a female. Bridget Bebber could not recall seeing any individual personal female hygiene items in the bathroom or elsewhere on 29 January 2004, and Renata Sharpe, who visited Cobbitty Road every day from 29 January 2004 to 4 February 2004, did not recall seeing any loose feminine items on the bathroom shelves.

64 The plaintiff undoubtedly spent very many nights at Cobbitty Road and undoubtedly had moved sufficient clothing and personal items (whether her toiletries and similar items were on shelves or not) to Cobbitty Road to be able to do so. Other of her belongings were there too. She was undoubtedly equipped to stay there.

65 Did she, however, consider Cobbitty Road to be her home?

66 There is evidence inconsistent with a conviction on her part to that effect.

67 Firstly, although she was in what she described as a high security job for the Australian Customs Service, she did not inform her employer of any change of address.

68 Secondly, she did not change her address for car registration or insurance purposes, or apparently for any other purposes including dealings with her bank.

69 Thirdly, on 4 August 2003 an application was lodged for registration of a business name “Garions of Cobbitty”. A Business Names extract from the Office of Fair Trading reflects her address as Carrington Circuit. Under cross-examination it was put to her that the address was there because that was where she lived. Her response was that she did not put that address on the document and that she presumed that it must have been Gary. However, on the same day she signed a form for registration of the coffee shop as food premises for the Council of Camden in which she reflected her postal address as Carrington Circuit. The same Business Names extract reflects Gary’s address as Cobbitty Road. Attention was drawn to the lease for the coffee shop which was also signed by the plaintiff and has one address for the lessees, namely, Cobbitty Road. I have taken this into account in my finding, but I consider that this entry should be seen in a different light because the lease was joint, there is place on it only for one address and Gary had known the landlord since 1996 and had displayed antiques at her centre in Cobbitty Road. I do not consider that the reference to Cobbitty Road as the lessees’ address under the lease displaces the significance of the matters which have led me to the conclusion I have reached on the nature and extent of common residence.

70 Finally, Bridget Bebber recounted a conversation with the plaintiff on 25 January 2004 after the Renata Sharpe disagreement. The only part of the conversation challenged was her attribution to the plaintiff of words to the following effect: “Well, I want a commitment from Gary, I am sick of living out of bags.” In cross-examination the plaintiff denied the conversation and Bridget Bebber was challenged on it in cross-examination.

71 This utterance, if it occurred, would have been significant as being inconsistent with a conviction on her part that Cobbitty Road was a permanent common residence.

72 There is cogent evidence, including from the plaintiff herself, that she was seeking a life commitment from Gary. His position with respect to this is dealt with in more detail later in this judgment.

73 The terms of the conversation are consistent with the evidence of the defendant, Renata Sharpe and Bridget Bebber as to the plaintiff’s clothing and other items being found at Cobbitty Road in a suitcase and bags.

74 It was put on behalf of the plaintiff that the finding of clothing in the laundry basket or washing machine indicated that the plaintiff was not living out of bags but there was a degree of permanence which did not require access to Carrington Circuit. The plaintiff undoubtedly washed clothing at Cobbitty Road. This would not mean she was not living out of bags.

75 I have concluded that the evidence of Bridget Bebber as to this conversation should be preferred over that of the plaintiff. Apart from the considerations I have already referred to, I found aspects of the plaintiff’s testimony to be less than satisfactory. These included:

a her evidence about her first visit to the Gary’s house. Her evidence was clear in the first instance that she first went to his house on her birthday which was 6 June 2003. She initially had no recollection of what time of the day it was but subsequently gave evidence it was in the evening and that she stayed for dinner, having been invited by Gary some time on the morning of that day, and that he gave her a present, a bottle of wine. However, cross-examination based on her telephone records elicited that she made phone calls from her place of work at Sydney Airport from 2.23pm till 10.41pm on that day. She accordingly conceded that she could not have been at Gary’s place for dinner that evening. Her evidence was initially that she may have stayed there overnight. Later she said she thought they watched a movie and she left not long after;

b her evidence concerning the address on the business registration form;

c her attribution to Gary of a statement from Renata Sharpe that Renata Sharpe had never even stayed a night at Cobbitty Road. There is compelling evidence and an inherent probability that Renata Sharpe stayed many a night at Cobbitty Road, and I consider it highly improbable that Gary would have said what is attributed to him.

76 I also have taken into account, although I have given it only slight adverse weight, the plaintiff’s evidence that she had given a false address to the Roads and Traffic Authority in order to obtain an advantage for school zoning purposes.

77 Bridget Bebber was unshaken in cross-examination and her evidence is consistent with contemporaneous events. I prefer her evidence to that of the plaintiff.

78 In the circumstances, I find that the conversation as recounted by Bridget Bebber took place.

79 I find that Cobbitty Road was not, and was not considered by the plaintiff to be, her home at the time Gary died.

Sexual relationship

80 There was a sexual relationship between the parties.

The degree of financial dependence or inter-dependence, and any arrangements for financial support between the parties

81 The plaintiff contributed funds to the establishment and operation of the coffee shop. Given that the decision had been taken in October 2003 to sell the coffee shop, there was no long-term relationship in that enterprise in contemplation.

82 She contributed to household expenses at Cobbitty Road, including paying for petrol on occasions for Gary’s van.

83 The plaintiff’s contribution came via borrowed funds and from her salary from the Australian Customs Service.

84 The plaintiff did not make any payment towards Gary’s mortgage or towards his electricity bills. She gave him cash from time to time which may have been used for these purposes.

The ownership, use and acquisition of property

85 The plaintiff had free access to Cobbitty Road, having been given a key. The nature and extent of her residence there I have dealt with above.

86 The parties owned the coffee shop in joint enterprise, which appears to have been the only joint property.

87 So far as the coffee shop is concerned, by October 2003 the plaintiff and Gary had decided to sell it. After Gary’s death, on the plaintiff’s authority, the locks were changed. According to the defendant the agent was unable to gain access to the premises and in the end result it was not possible to sell the business as a going concern. The defendant by arrangement with Christine Parrish, the landlord, recovered the tenant’s fixtures and chattels and placed them into storage.

The degree of mutual commitment to a shared life

88 In the circumstances of this matter I consider that significant weight is to be attached to this factor.

89 The evidence clearly established, that the plaintiff and Gary were in a romantic relationship. At times they displayed their affection for each other in the presence of others, including family, by physical acts such as kissing, cuddling, and holding hands. Various of the plaintiff’s witnesses gave evidence of their observations of the relationship.

90 In October 2003, the plaintiff asked Gary to marry her. I accept, with some reservation, having regard to the Renata Sharpe disagreement, that as at the date of his death she was still seeking and would then herself have given such a commitment to Gary.

91 Much of the evidence called by the defendant was of conversations which Gary had had with individuals who were called, and which concerned Gary’s reactions and attitudes to various events which occurred during the course of the relationship. Even though this evidence was almost entirely unchallenged, the approach I have adopted is not merely to accept it but to consider it in the light of all of the evidence, with regard to inherent probabilities and with regard to contemporaneous events of which there is either corroboration or no dispute.

92 Various of the witnesses called for the defendant recounted conversations with Gary about the subject of the plaintiff’s marriage proposal and Gary’s reaction to it. They are uniform in revealing, if accepted, a negative attitude on behalf of Gary.

93 The defendant recounted a conversation in October 2003 of being told by Gary, in the presence of Bridget Bebber, of Marion’s proposal in which he said, “No bloody way. She is mentally unstable. I am not going to marry her.” Bridget Bebber recounted the same conversation with Gary in October 2003. Christine Yardley recounted a conversation at a party she gave in about early November 2003 in which Gary reported that the plaintiff wanted to get married and in which he said, “Well it is not exactly a match made in heaven.”

94 Renata Sharpe recounted a conversation with Gary on 2 January 2004 after the New Year’s party incident in which Gary said words along the following lines, “Marion and myself have not had a life without the shop. The shop caused most of our troubles. I thought that maybe we would like each other again when the shop is out of our lives and we could try being just a couple. But after yesterday, I don’t know. Maybe you have got it right after all. Maybe some people are meant to live a single life. Maybe I should stay single for the rest of my life.”

95 Louise Brown recounted a conversation with Gary on 20 or 21 January 2004 and the contents of SMS messages received by Gary via his mobile telephone. The conversation she recounted includes an exchange to the following effect:

Louise: What do you think has caused this?

Gary: Marion and I discussed on the previous weekend the future of the shop…Marion has not dealt with my talking with Renata and me deciding to end our relationship. She wants to settle down and have a home and children.

Louise: Have you ever considered living with Marion or even marrying her? Do you think this would improve the situation?

Gary: I don’t think Marion and I are the right fit. I think we are not well suited to each other. Initially I thought she was great. I hoped it would work out. But I feel no matter what it would not work. I am worried about telling her as I don’t know how she will react.

Louise: You can hide out here until she calms down.

96 Louise Brown recounted a conversation the following day to the following effect:

Gary: Marion and I talked last night. There were tears but we finally decided it was not going to work. Today we are going to have some time together to sort through things.

Louise Are you okay with all of this?

Gary: We have had a long talk. I will tell you about it tomorrow.

97 She recounted a conversation the day after that to the following effect:

Gary: Marion and I decided to continue to have an amicable relationship. Things just haven’t worked out between us. We won’t be having a romantic relationship.

98 Christine Parrish recounted a conversation on the weekend of 24-25 January 2004 which is in the following terms:

Gary: Has there been anyone interested in buying the café?

Christine: No, not that I know of.

Gary: I am keen to sell the café. I want to get on with my life. My relationship with Marion is not working out.

Christine: How are you going to handle it?

Gary: I am anxious to get out of the café and try and recoup the money I have spent on it. I am worried about what Marion might do if I break up with her before the coffee shop is sold. She is irrational and controlling. If I finish the relationship first she will put up barriers to make it difficult for me to sell the coffee shop.

Christine: What are you going to do?

Gary: I just want peace back into my life. Marion won’t let me continue with my friendships. I can’t cope with her depression, ups and downs and demands. The bottom line is that I don’t love her. She has been pressuring me to have children. I have accepted that I am too old to have children and the responsibility that comes with them. I just want to sell the café and get rid of Marion and get my old life back.

Christine: What next Gary? What are your plans?

Gary: I have been considering moving to New Zealand. I would then rent my house out when everything is settled. I have a close friend in New Zealand who has done well over there. He is encouraging me to go over.

99 There was sought to be tendered in the defendant’s case a handwritten note by Christine Parrish concerning the conversation she recounted. The tender was objected to by senior counsel on behalf of the plaintiff on the grounds that he did not cross-examine on the conversation, it was not challenged, and therefore the document was irrelevant. Senior counsel for the plaintiff later put that he expected, given the concession that it is unchallenged, the Court would find the conversation took place. He subsequently put that I should find that the conversation did not affect the commitment to the relationship and did not represent a walking away or abandonment of it. Whilst the conversation itself did not mark the termination of the relationship, it does, together with all the other evidence, gives insight as to Gary’s state of mind with respect to his commitment to a shared life.

100 There are a number of objective matters, or matters clearly established, which provide corroboration for the accuracy of Gary’s reported reactions. They include the following:

a the relationships which Gary had with Renata Sharpe and Christine Yardley were obviously sore points with the plaintiff, and Gary had had long and close associations with them;

b there was a deal of evidence about Gary’s dancing activities before he met the plaintiff and in the very early stages of their relationship. In the later stages of their relationship he was not indulging that passion;

c the coffee shop was clearly an area of substantial contention between them to the extent even that there is some evidence from Bridget Bebber, the defendant, and Grant Bartrop that the plaintiff was unhappy about Gary having antiques in the coffee shop which he had brought in to try and make money in view of the coffee shop foundering;

d they had different views about having children. The plaintiff wanted them, Gary thought he was too old; and

e there were episodes and medical records tendered which indicated, perhaps due to the plaintiff’s arduous work hours and the coffee shop situation, that she was suffering some stress.

101 There was nothing about any of the witnesses who deposed to the conversations which gave me cause to doubt that they were telling the truth. While each has a stake, whether financial or emotional, in the outcome of these proceedings, I find them to be truthful witnesses.

102 I find that the conversations with Gary recounted by the defendant, Christine Yardley, Christine Parrish, Renata Sharpe and Louise Brown about the state of his relationship with the plaintiff occurred.

103 On behalf of the plaintiff the evidence of Reverend Bull and Mr and Mrs Rabbidge were relied on as indicating that marriage was in prospect. However, as it transpired, in chief, the Reverend Bull spoke of only one particular conversation where marriage was mentioned. It was in the context of Gary wanting to donate a picture of St Paul’s Cobbitty, which he had purchased, to the Church and the Reverend responding, in jest as he put it, “You do that, I’ll marry you”. The Reverend went on candidly to say (as one might perhaps expect from a clergyman) that for him personally he likes to see people married when they are in a relationship with one another, so he pushes these points.

104 The evidence of the Mr and Mrs Rabbidge was of a conversation in the presence of Gary where Marion spoke of her and Gary having talked to the Reverend Bull about marriage. The only discussion with the Reverend Bull of which there is any evidence is the one in jest. It follows that this is the only conversation which can be found to have been the one referred to by the plaintiff. The evidence is that when she spoke of this Gary smiled. This evidence, having regard to the evidence of Reverend Bull, is of little, if any, weight in establishing an intention by Gary to marry the plaintiff.

105 I consider that the conclusion to be drawn from what Gary said, and from circumstances at the time, is that there was no commitment on his part to a shared life with the plaintiff and that he intended to end the relationship when the coffee shop situation had been resolved, and I so find.

106 I also take into account my finding that the plaintiff had the conversation with Bridget Bebber about wanting a commitment from Gary.

107 In forming this conclusion I have taken into account that after the Renata Sharpe disagreement the plaintiff returned. However, the evidence establishes, given my acceptance of the evidence of Louise Brown and Bridget Bebber, that so far as Gary was concerned, the return was on the basis that they would try and give it another go in the face of the difficulties which had been encountered. Given my finding that Gary had not made nor then intended to make a commitment to a shared life, and that he had that state of mind before the Renata Sharpe disagreement, the plaintiff’s return does not alter the conclusion I have reached.

The care and support of children

108 The care and support of children is not an issue I consider to have any role to play in the determination of these proceedings.

The performance of household duties

109 The circumstances in this regard have been dealt with elsewhere in this judgment.

The reputation and public aspects of the relationship

110 Various witnesses had different views of this relationship. They were invited to parties and other events together no doubt because the persons who invited them considered it appropriate given that they undoubtedly were in a romantic relationship.

111 After Gary’s death the plaintiff received sympathy cards and there is in evidence a photograph of them together on 24 January 2004.

112 It was put on behalf of the defendant that the plaintiff’s failure to notify a change in address to various institutions was a matter of the reputation and public aspects of the relationship. I do not accept this submission. That conduct goes in my opinion to residence but it is a matter between the plaintiff and the relevant institutions. It does not concern the public aspects of their relationship in that it says nothing of it.

113 I do not consider that there is anything in the public aspects of the relationship beyond what their friends and associates perceived, and different persons perceive different things. Gary’s friends who gave evidence said he never described the plaintiff as having moved in or as having lived with him.

Witnesses

114 Apart from those whose evidence is mentioned above, other witnesses called on behalf of the plaintiff were her mother Mrs Rosemarie Cooke and Michelle Jakobsson. Two affidavits by the plaintiff’s father Mr Terrence Cooke were read with leave as he was unavailable due to infirmity to be cross-examined. No reliance was placed on those affidavits (which in any event did little to assist the plaintiff’s case) in submissions.

115 I found the plaintiff’s mother Mrs Rosemarie Cook to be vague and incoherent and clearly seeking to assist her daughter in the pursuit of these proceedings. She denied, contrary to the evidence of the Reverend Bull which I accept, having called the Reverend Bull after Gary’s death. I consider that I should attribute no weight to the evidence of Mrs Rosemarie Cooke.

116 So far as the plaintiff’s other witnesses are concerned, even though, as with the defendant’s witnesses, they had an emotional stake in the outcome of these proceedings, I consider that the Reverend Bull, Mr and Mrs Rabbidge, Michelle Jakobsson and Mr Russell Bird gave an honest account of the events as they saw them. I take the same view of the evidence of Joel Primrose.

Conclusion

117 In my view, as at Gary’s death, he and the plaintiff were not living together as a couple in a de facto relationship within the meaning of s 4 of Property (Relationships) Act (NSW).

118 Accordingly, the plaintiff has not established that she was a person who, at the time of Gary’s death, was his de facto spouse within the meaning of s 32G of the Wills, Probate and Administration Act (NSW).

119 The result is that the summons is dismissed with costs.

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