Curwood v Codde

[2024] WASC 378

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   CURWOOD -v- CODDE [2024] WASC 378

CORAM:   SOLOMON J

HEARD:   27, 28 & 29 FEBRUARY 2024

DELIVERED          :   16 OCTOBER 2024

FILE NO/S:   CIV 1763 of 2022

BETWEEN:   ROHAN CURWOOD

Plaintiff

AND

JAMES PHILIP CODDE as executor of the estate of JANICE MARY CODDE

HELEN MARY CODDE as executor of the estate of JANICE MARY CODDE

First Defendants

JAMES PHILIP CODDE

Second Defendant

HELEN MARY CODDE

Third Defendant

Catchwords:

Succession - Probate and letters of administration - Whether the plaintiff and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death - Elements for consideration in determining whether a relationship may be characterised as de facto - Whether plaintiff has an entitlement to the intestate estate - Whether plaintiff entitled to a grant of administration of deceased's estate - Turns on own facts

Legislation:

Administration Act 1903 (WA)
Family Law Act 1975 (Cth)
Guardianship and Administration Act 1990 (WA)
Interpretation Act 1984 (WA)

Result:

Declaration that plaintiff was de facto partner of deceased for a period of at least two years immediately before the deceased's death
Orders granting the plaintiff letters of administration

Category:    B

Representation:

Counsel:

Plaintiff	:	R Nash
First Defendants	:	H O Moser
Second Defendant	:	H O Moser
Third Defendant	:	H O Moser

Solicitors:

Plaintiff	:	Kershaw Legal
First Defendants	:	Paragon Legal Solutions
Second Defendant	:	Paragon Legal Solutions
Third Defendant	:	Paragon Legal Solutions

Cases referred to in decision:

Britt v Office of State Coroner [2022] WASCA 75

H v P [2011] WASCA 78

In the Estate of Slattery (1909) 9 SR NSW 577

Re A Medical Practitioner [1993] 2 Qd R 154

Smith v Tamworth (1997) 41 NSWLR 680

SOLOMON J:

1. Michael John Codde died on 12 February 2022.[1]  As this matter concerns members of his family, to avoid confusion and with no disrespect intended, I shall refer to him and members of his family by their first names.  In the interests of consistency and fairness, I shall do the same with the other people involved, including the plaintiff.

   [1] See death certificate at TB36, page 285.

2. Michael died shortly before his 59^th birthday.  He left behind many people who loved him and cared about him.  Sadly, those well‑placed affections have led to this proceeding.

3. Michael was never married, and he had no children.  When he died, his mother Janice was still alive, but she passed away in August 2022.  Michael was otherwise survived by the second defendant, his brother James (Jim), and by the third defendant, his sister Helen.  Jim and Helen are also together the first defendant in their capacity as executors of their mother Janice's estate.

4. Michael was also survived by the plaintiff, Rohan Curwood.  Rohan brings this action claiming to have been Michael's de facto partner at the time of his death and for the two years immediately prior to his death.

5. Michael died intestate, that is, without a will.  That raises, relevantly, two related issues; who is entitled to Michael's estate, and who is entitled to be granted administration of Michael's estate.

6. Both those issues are governed by the Administration Act 1903 (WA) (Act).  The entitlements to the estate of a person who died intestate are governed by the table set out in s 14 of the Act (Table). The entitlements under the Act have been adjusted since the date of Michael's death but they remain to be determined in accordance with the Act as it stood at the time Michael died. At that time, the Act provided by Item 3(b) of the Table that if a person dies intestate without children, but leaving a husband or wife and one or more of a parent, a brother or sister, then the surviving spouse is entitled to the deceased's household chattels, the first $75,000 with interest at 5% per annum and one half of the residue of the estate.

7. Section 15 of the Act provides that where the deceased had a de facto partner for a period of at least two years immediately before death, then the de facto partner has the entitlement of a surviving spouse in accordance with s 14.

8. Section 25 of the Act provides that the court may grant administration of the estate of a person who died intestate to one or more of the persons aged at least 18 and entitled in distribution to the estate the following persons. Generally speaking, the grant of administration follows the person with the largest interest: In the Estate of Slattery (1909) 9 SR NSW 577; Smith v Tamworth (1997) 41 NSWLR 680 at 693.

9. In this application, Rohan seeks to establish that he was Michael's de factor partner at the time of, and for the two years leading up to, Michael's death.  On that basis, Rohan seeks the grant of administration of Michael's estate, and the entitlement of a surviving spouse under Item 3(b) of the Table.  Jim and Helen deny that Rohan was Michael's de facto partner at the relevant time period, or at any time.  The central question to be determined in this proceeding is whether Michael and Rohan were de facto partners for a period of at least two years immediately before Michael's death.

The evidence

1. Michael was admitted to hospital in December 2021 where his cancer was diagnosed.  His health deteriorated fairly rapidly, and he died some two months later.  Michael's circumstances changed dramatically once he was admitted to hospital. 

2. I shall deal first with the period up to Michael's hospitalisation, and then separately with the period from his hospitalisation until his death.  That division of the time periods is also appropriate because the defendants contend that, even if Rohan and Michael were in a de facto relationship, that relationship terminated at the time that Michael was admitted to hospital in December 2021.

3. Evidence for the plaintiff was given by Rohan himself, his brother Matthew, and his mother Anke.

Rohan Curwood

1. I shall turn first to Rohan's evidence.  Rohan presented as somewhat diffident and reserved.  He nevertheless gave his evidence in a straightforward and uncomplicated manner.  He answered the questions put to him with understated candour.  Some of the questioning concerned very private matters.  Being questioned about such sensitive and personal affairs, particularly given the public nature of the occasion with members of both families in the room, was undoubtedly a difficult experience for Rohan.  That is not to criticise the questioner.  On the contrary, the questions were necessary and appropriate in order to elicit and test the relevant evidence.  Both counsel approached the delicate issues with respect and courtesy.  Rohan answered the questions put to him directly and with an unsophisticated and unpretentious dignity.  There was no manifest indication that Rohan was seeking to tailor or reconstruct the history of his relationship with Michael in a manner that was untruthful.  Subject to one exception,[2] I accept Rohan's evidence and his account of his relationship with Michael. 

   [2] See [73] below.

2. Rohan was born in 1966.  He related the following matters in his evidence. 

3. Rohan went to City Beach High School and left after Year 10 to begin an apprenticeship as a pastry cook.  From 1989, Rohan had various jobs at Crown Casino.  He recalled meeting Michael for the first time on 18 February 2000.  Michael came to Rohan's home in Highgate, and Rohan went to see Michael later that night at Michael's home in Fremantle.  Rohan said their relationship began instantly.  From that point, Michael and Rohan regularly stayed at each other's home (around five nights a week), sleeping in the same bed.  That arrangement was maintained when Rohan purchased a residence in St James in 2003, and continued until about 2007.  In 2005, Rohan and Michael travelled together to the United States.  Rohan paid for Michael's domestic travel within the United States.  In 2007, a form of relationship continued, but in a less intense and non-exclusive manner.  At that time, it appears that Michael was not spending any significant time staying at Rohan's house, and each of them began a relationship with someone else. 

4. In around 2010, Rohan said that he and Michael resumed an exclusive relationship.  From that time, Rohan's evidence was that Michael spent about five nights a week at Rohan's place in St James.  Michael kept some of his clothes and toiletries at Rohan's place.  In 2014, Rohan purchased a unit in Subiaco off the plan.  He sold his place in St James, and moved to live at Michael's residence in Fremantle for two years while his Subiaco unit was being built.  Rohan moved his belongings there, including furniture.  While he stayed at Michael's place, Rohan and Michael slept in the same bed.  Approximately three days out of five, Michael would pick Rohan up from work at Crown Casino.  In 2013, and again in 2015, Rohan and Michael travelled to Melbourne together.  On their first visit they stayed at a hotel, and on their second visit they stayed with Rohan's relatives.  When they travelled, they slept in the same bed.  Rohan and Michael also made trips together to the Margaret River region.

5. Rohan's evidence was that, when his Subiaco unit was completed in 2016, Rohan moved there with his belongings.  Rohan left at the Fremantle residence items of furniture that he did not require or could not accommodate at his new Subiaco unit.  This included his grandmother's rolltop desk.  Michael then also moved many of his belongings to Rohan's Subiaco unit and mainly stayed at Rohan's place, sleeping in the one bed where they were physically intimate.  Rohan said that in bed, he and Michael engaged in activities of hugging, kissing, spooning, intimate back massages, 'and things like that'.[3]  At the same time, Rohan explained that he was personally uncomfortable with displays of physical affection in public.  One third of the wardrobe space was occupied by Michael's belongings.  Rohan observed that Michel kept his iPad and various papers such as bills with him at the unit in Subiaco, in the drawer next to Michael's side of the bed.  Michael retained his home in Fremantle.  Rohan's evidence was that Michael went back to Fremantle to collect mail and water the garden.  Michael occasionally slept over at his Fremantle house, but was domiciled at Rohan's place.

   [3] ts 40.

6. At Rohan's place in Subiaco, Rohan and Michael would share ordinary domestic life together, eating breakfast and the evening meal together, and watching television.  Rohan said they also went out together to cafés (particularly for breakfast), concerts and movies as well as to WAFL football games.  Both Rohan and Michael became members of the Fremantle Dockers Football Club.  Rohan would, on average, go out for a meal with Michael and his parents once a month.  Michael met up with Rohan and his parents, but not as frequently.  Rohan recalled that he often went with Michael to Michael's mother's place for fish and chips.  Rohan's evidence was that he had spent some Christmases, but not all, with Michael's family, and he recalled Michael coming to Rohan's brother Matthew for Christmas once or twice.  It appeared from Rohan's evidence that Rohan and Michael did not spend every Christmas at one or the other's family, but did so on a number of occasions.  Rohan recalled that when Michael's father died in February 2020, Rohan travelled to the funeral at Karrakatta Cemetery in the funeral car with Michael's family.  The other people in the car were all immediate family.

7. I admitted into evidence a number of photographs which depicted Rohan and Michael together at various unremarkable occasions, such as holiday travel and family events, over the course of their relationship.  The photos were not abundant.  They did not constitute a comprehensive album of regular events.  But they did depict Rohan and Michael together on those occasions enjoying the sorts of events that one might ordinarily, but not invariably or necessarily, associate with a couple in a marriage or a marriage-like relationship.  To that extent, the photos were indicative, rather than demonstrative or conclusive, of the nature of Rohan and Michael's relationship. 

8. There was a limited amount of documentary evidence that dealt with the nature of Rohan and Michael's relationship.  A superannuation statement from June 2010 showed that Jim and Helen were the only nominated beneficiaries of Michael's superannuation.[4]  There was no evidence about how that was put in place, how long that it had been in place or indeed Michael's awareness of it.  There was no update of Michael's superannuation beyond June 2010 in evidence.  Of itself, the document was of limited probative value.  Other documents included messages between Rohan and Michael.  In one message from October 2014, Michael tells Rohan that he could not find his wallet but eventually 'came home … and there it was on our bed'.[5]  That message referring to 'our bed' was sent by Michael to Rohan when Rohan was in Europe with his parents.  In another exchange of messages, this time in December 2018, Rohan and Michael had an unremarkable domestic exchange about what they would be having for dinner that night.  The exchange is followed by Rohan sending Michael a message that Rohan received:[6]

   This is a reminder that you have an appointment at Fremantle Smiles on Mon 10.12.2018 at 8:30am.  Please reply Y to confirm.  Thank you. 

   Rohan followed that with a message to Michael: 'I said yes for you'. These messages indicate that Rohan and Michael were sharing ordinary domestic experiences together, including Rohan assisting Michael with his dental appointment. In a message Michael sent to Rohan in July 2021, Michael says 'Love you so very much sweetie … see you after Fish & chips with Mum'.[7]  That was followed by love-heart emojis and 'xxxx'.  That message speaks for itself.

   [4] TB28, page 273.

   [5] TB29, page 275.

   [6] TB29, page 276.

   [7] TB31, page 279.

9. In cross examination, Rohan was presented with a printout of his Facebook page as it stood at the time of Michael's death.[8]  Rohan explained that was his first Facebook profile.  His evidence was that he had not used it since 2014, and since then he had used another profile.  He could not remember when he first created that profile, but he did not update it after it was created.  It was put to Rohan that nevertheless, in 2014, he described his relationship status as 'it's complicated' even though his evidence was that he was in a de facto relationship with Michael as at 2014.  Rohan answered candidly that his relationship at that time was indeed complicated.  When asked whether his relationship with Michael was at times volatile, Rohan candidly responded: 'It could be, yes'.[9]  It was also put to Rohan that Michael had been on gay dating sites.  Rohan said he was not aware of that, but again, candidly he said that he wouldn't be surprised if that was the case.[10]  When he was asked if Michael would 'hook up' with other men during the time that Rohan claimed they were in a relationship, Rohan responded: 'I don't know ...  I didn't see evidence of that'.[11]  I found Rohan's answers to these sensitive questions to be straightforward and plausible.  There was also evidence of a Facebook profile of Michael Codde in which he described himself as single.[12]  In addition, Rohan readily accepted that at a point that he was unemployed in about 2016 he had described himself as single in a Centrelink application.[13]  Although plainly relevant to the issues in the proceeding, these matters were not explored in the evidence or submissions to a point that I am able confidently to draw inferences from them about the substantive quality of Rohan and Michael's relationship.  In the end, the evidence about how they lived their lives was far more probative than ad hoc and unexplored descriptions of their relationship to others. 

   [8] TB43, page 295.

   [9] ts 114.

   [10] ts 114.

   [11] ts 115.

   [12] TB42, page 294.

   [13] ts 111.

10. I also admitted into evidence bank statements of Michael's expenditure.[14]  The bank statements covered the period from July 2018 to January 2022.  They showed the places and locations Michael had spent money.  Neither side undertook a comprehensive analysis of the bank statements.  My own perusal of the bank statements indicates that the overwhelming predominance of the spending was in the Subiaco/Floreat/Leederville area and certainly that spending was far more frequent than the spending in the area of Fremantle and its surrounds. 

    [14] TB25, pages 157 - 269.

11. Neither Rohan nor Michael had a particularly high level of income.  Rohan had fairly low-paying employment.  Michael undertook part-time work and had the benefit of Centrelink payments and assistance from his family.  There was no particular arrangement in relation to expenses and finances.  When Rohan lived at Michael's place in Fremantle, he did not pay rent or contribute to the utilities.  When Michael moved to Rohan's place in Subiaco, the opposite arrangement was adopted.  Rohan owned the unit in Subiaco and paid the utilities.  Michael did not pay rent.  Michael would often pay for groceries or for eating out together, acknowledging that Rohan bore the housing expenses.  These matters do not appear to have been the product of deliberate decisions, but rather practices that simply and informally unfolded.  Rohan and Michael did not discuss each other's financial circumstances, although Rohan understood that Michael was on some form of disability pension and that he received some funds from his mother.  Rohan understood that money was provided by Rohan's mother as payment for work undertaken by Michael around his mother's house and garden.[15] 

    [15] ts 103.

12. The evidence demonstrated that Michael's mail generally went to his Fremantle home.  Correspondence from Michael's hospital records also went to his property in Fremantle.  That indicates that even in the years that Michael was living at Rohan's place, he gave his address for mailing purposes as his Fremantle property.  The exception on the evidence was his Docker's membership which was addressed to both Rohan and Michael at the Subiaco unit owned by Rohan. 

13. Those aspects of Rohan and Michael's arrangements continued until December 2022 when Michael was hospitalised. 

Matthew Curwood

1. Rohan was followed in the evidence by his younger brother, Matthew.  Matthew described Rohan as a shy man, lacking in confidence, without a wide circle of friends and not particularly articulate.  Matthew recalled that he first met Michael in 2004, and from that point he recalled Michael attending family events at Matthew's house.  It was Matthew's recollection that Rohan attended the hospital with Michael at the birth of Matthew's second daughter, and that Michael and Rohan attended together for the Christening of his children.  He recalled that there was a break in the relationship between Rohan and Michael around 2008.  At a certain point, they were back together again.  In the last ten years of Michael's life, Matthew did not recall seeing Michael other than together with Rohan.  He recalled that Michael attended with Rohan at some, but not all, birthday parties for his children.  Matthew estimated that Michael attended with Rohan for about half the family birthday parties held at Matthew's house in the period from 2013 until Michael's hospitalisation.  Matthew also remembered seeing Rohan and Michael together regularly at WAFL and Dockers football games. 

2. Matthew hosted Christmas Eve at his home from 2013, and he remembers that Michael attended some of those functions, but not all of them, with Rohan.  Matthew estimated that Michael attended five Christmas Eve functions at his home with Rohan between 2013 and 2020.  Rohan's birthday was celebrated annually by going to a restaurant for breakfast or dinner.  Matthew said he attended those each year, and Michael attended on each occasion after Rohan and Michael had resumed their relationship.  Matthew remembered that Rohan and Michael arrived at events together in the same car.  From that time, Matthew's evidence was that he would describe them as being more than friends; they were 'together'.[16]  Matthew remembered that one of his daughters, when she was about 10 or 11, asked him about Michael, and Matthew explained to her that Michael was Rohan's partner.  That prompted his daughter to ask if Rohan was gay, to which Matthew said yes.[17]  Matthew also saw Rohan and Michael together at a music concert in about 2015.

   [16] ts 178.

   [17] ts 178.

1. Matthew's evidence was considered, plausible and delivered thoughtfully and without embellishment.  At times it was possible to discern that Matthew experienced a genuine emotional connection with matters he was recounting.  I accept his evidence as entirely truthful.

Anke Curwood

1. Matthew's evidence was followed by Rohan and Matthew's mother, Anke Curwood.  Anke said she first met Michael soon after Rohan first met him, in around 2002.  Anke explained, with understandable reticence, that Rohan 'wasn't the best of house keepers' and she would go round to Rohan's place in St James to clean and tidy the house.  From the time she met Michael, she said it was obvious from cleaning the house that Michael was living there, and that Michael and Rohan were sharing the only bed in the house.  Anke continued to do that when Rohan moved to his unit in Subiaco and observed the same thing.  Anke and her husband did not live far from the Subiaco area, and she said they would bump into Rohan and Michael together at a coffee shop about once a week.  Anke also remembered Michael coming with Rohan to family Christmas and other gatherings.  Anke said she and her husband would get together with Rohan and Michael at the Wembley Food Hall approximately once every five weeks.

2. Anke's evidence was given in a direct and straightforward manner.  I accept that Anke did her best to give her evidence honestly and truthfully.  Her evidence was understandably that of a caring and concerned mother who has no doubt borne some of the emotional burden of the long history of this matter.  I take into account that her evidence was, quite naturally, shaped by that perspective. 

Jim Codde

1. I turn now to the evidence given by and on behalf of the defendants. 

2. Jim gave evidence first.  He was the oldest of the Codde children.  Jim is a professor and research scientist at Notre Dame University.  He presented as an intelligent and articulate man, with firm views on the matters the subject of the proceedings.  Jim explained that Michael was an outstanding all-round student and completed Year 12 at Hale School in 1980.  Soon after, in January 1981, Michael suffered an accident that caused major trauma, including a brain injury.  This left Michael with some permanent cognitive impairment, particularly in relation to his short-term memory.  Following an extended period of recovery and rehabilitation, Michael moved in with his parents for eight to nine years.  Jim explained that after that time, Michael received a compensation payment.  Together with funds provided by his parents, Michael was able to purchase his own place on Solomon Street in Fremantle where he went to live.  Jim's evidence was that Michael's income was provided by a disability pension and ongoing support from his parents.  Jim also described the ongoing support Michael received from his family, from day-to-day matters such as ensuring that Michael had an iron that turned off automatically, to more significant issues such as transport and job opportunities.  Jim quite clearly had a view that it was his family (primarily his parents) who had provided the principal support, both financially and generally, to Michael in his life following the accident, and that continued to be the case up until Michael died. 

3. Jim's evidence was that he saw Rohan at family events such as Christmases and birthdays.  His evidence was that 'other times, it would have been a gathering of the family, to which Michael would say, "Can Rohan come?" and the answer was always yes'.[18]  Jim's evidence was that 'they were often together'.[19]  Jim confirmed that at his father's funeral, the people who travelled in the funeral car were 'my mother, my partner, myself, my sister, my brother and, at my brother's request, Rohan'.[20]

   [18] ts 218.

   [19] ts 218.

   [20] ts 233.

4. Jim did not accept that Rohan and Michael were in a de facto relationship.  He described them as 'close friends'.[21] 

   [21] ts 218.

5. Jim did not become aware of Rohan until Rohan moved to Michael's house in Fremantle.  That indicates that Jim had a more limited knowledge of Michael's life, no doubt and understandably, due to Jim's own family and professional commitments.  Jim's evidence was that he was less involved in Michael's life than his parents or than his sister Helen.

6. Jim's evidence was given truthfully in the sense that he genuinely believed the matters he told the court.  But it was clear that Jim had strong views about Michael's relationship with Rohan, possibly borne of his view that it was his family who had provided Michael with the necessary financial and other support, not Rohan.  Jim was keen to convey his views in his evidence, regardless of whether it was responsive to the question he was asked, or whether they were referred to in the outline of his evidence provided prior to trial, or indeed whether they were facts of his own knowledge. 

7. Jim's evidence appeared to be more directed to conveying his views about Michael and Rohan, than to providing considered answers to the questions he was asked based upon his own recollection of the facts within his own knowledge.  In the circumstances, Jim's evidence was of limited assistance in relation to the principal issues for determination. 

Helen Codde

1. Jim's evidence was followed by his sister Helen.  Helen is younger than Jim but was older than Michael.  She described her relationship with Michael as they were growing up as 'very close'.[22]  Helen described the impact on Michael of his accident in terms similar to Jim.  After Michael returned to his parents following an extended period of rehabilitation, Helen remained at her parents' home for about 12 months, and then went to work 'up north',[23] coming back for visits periodically until her return to Perth permanently in 2010.  Helen stayed with Michael at his home in Fremantle on a number of her trips to Perth, including some extended trips.  Helen also stayed with Michael for 18 months when she returned to Perth in 2010, before she bought her own place in Fremantle not far from Michael.  From that point until Rohan moved into Michael's place in about 2014, Helen would go to Michael's place periodically to help clean and tidy.  Helen said she regularly helped Michael with various things when she was in Perth, and when she moved back to Perth, she helped set up arrangements for Michael to pay his regular expenses, such as utilities and phone bill.  Helen believed that her mother was assisting with Michael's financially by paying some of his expenses.  There was no admissible evidence of those matters, but Helen's understanding of those matters was relevant because it shaped some of her attitude to Michael's predicament.  Once Helen bought her own place, and particularly once Rohan moved into Michael's place in Fremantle, she mainly saw Michael at their parents' house.  After Rohan moved to Subiaco, Helen went regularly to Michael's place in Fremantle to clean up and tend to the garden.  Helen said she and her mother also assisted Michael with some medical appointments, such as the dentist.  The text message from Rohan to Michael in December 2019 regarding Michael's appointment at 'Fremantle Smiles' referred to at paragraph [20] above suggests that Helen's evidence could not have been entirely accurate, or at least was something that fell short of the full picture.

   [22] ts 250.

   [23] ts 251 - 252.

2. Helen's evidence was that she would see Rohan with Michael when they met up somewhere for coffee, or when Rohan would be with Michael at their parents' house.  Helen sought to minimise the relationship, however, saying 'I would only see them together at most once every three weeks or so … that's all I would see them together'.[24]  Helen was asked how they interacted with each other.  Her answer was 'Just as friends … Rohan is a friend of ours - family - sort of the same as anybody else and we were very accepting …'.[25]  Helen denied that Michael and Rohan showed any physical affection to each other.  Her evidence was that each of Michael and Rohan told her they were only friends.  She said that the relationship was volatile, and that Rohan had sent her texts complaining about Michael.  Helen reiterated in her evidence that Michael paid his own bills from his own funds and with support from their mother. 

   [24] ts 258.

   [25] ts 258 - 259.

3. It was clear that Helen had strong feelings about Michael.  She obviously cared for him deeply and felt that she and her mother had played the most important supportive role in Michael's life.  In particular, it was clear that she felt that her parents' financial contribution to Michael's living and welfare had allowed him to maintain himself and the life he was able to lead.  It was apparent that Helen bore some resentment towards Rohan.  From Helen's perspective, Rohan was claiming to be Michael's life-partner.  If successful, that claim will bring with it financial benefits to which Helen's parents made a significant contribution.  And all the while it was Michael's family, principally through his mother and Helen, who really provided the support that Michael required.  Helen's perspective is not an unnatural reaction from someone in Helen's situation.  But it is not objective.  To assert that Michael and Rohan were just friends flies in the face of the reality that emerged from the admissible evidence.  To state the most obvious: people who are just friends do not live in the same home and share a bed, sexual intimacy and a range of other life experiences, and attend each other's family functions for years on end.  I find that although Helen's feelings were genuinely and deeply held, her evidence was neither objective, nor reliable.

James Galluccio

1. Helen was followed by James Galluccio.  He explained that he was a neighbour of the Codde family and became a close friend of Michael.  He remained in touch with Michael in their adult years.  Mr Galluccio became an accountant and did Michael's tax returns.  They would see each other once or twice a year.  He remains friends with Jim and Helen. 

2. Mr Galluccio gave evidence that he picked up Michael in an Uber on the way to a school reunion in February 2020.  When arriving at the address Michael had nominated, Mr Galluccio said that he asked Michael 'is this where your boyfriend lives or something?'.  According to Mr Galluccio, Michael replied 'No.  Just my friend'.[26]  In cross examination, Mr Galluccio was asked if he was aware that at the time that Rohan was involved in Michael's life in some way.  He answered 'correct'.[27]  Mr Galluccio was then asked whether he knew that Michael and Rohan were sharing a bed.  Mr Galluccio responded: 'No … But I … wouldn't have asked him that question'.[28]

   [26] ts 282.

   [27] ts 289.

   [28] ts 289.

3. In my assessment, Mr Galluccio's evidence was of marginal assistance.  His perspective is likely to have been influenced by his friend Helen's strong views.[29]  More significantly, he was not privy to the finer matters that ultimately shed light on the substantive nature of Michael and Rohan's relationship.  As to what Michael told Mr Galluccio about Rohan on the night in February 2020 when he picked him up on the way to the school reunion, even accepting its accuracy, there may be any number of reasons why Michael made that comment.  Its probative value pales against the direct evidence of the content of Michael and Rohan's relationship.  Mr Galluccio's evidence that he did not know Michael and Rohan shared a bed and that he would not have asked about that, suggests that the intimate nature of the relationship is not likely something Michael would have shared with Mr Galluccio.

Elizabeth Lloyd

[29] See [81] below.

1. Mr Galluccio was followed by Jim's partner of 23 years, Elizabeth Lloyd.  Ms Lloyd said she had a close friendship with Michael.  Ms Lloyd said at different points of her evidence that Michael spoke a lot about his friend Bryn, and that Michael referred to Rohan as a 'friend'.  Ms Lloyd said she saw Rohan with Michael at family café outings and at 'mutual family houses' usually around Christmas and birthdays.  She said that in the early days, that was every six to eight weeks, 'but in the last couple of years of Mike's life, not very often at all'.[30]  When asked if Rohan's name came up in conversation with Michael, Ms Lloyd referred to things that Michael and Rohan had been doing such as going to the football, or a café meal.  She explained, however, that her conversations with Michael were more about things of mutual interest, such as their gardens. 

   [30] ts 295.

2. I did not obtain any assistance from Ms Lloyd's evidence.  In my assessment, her perspective was clearly tailored to her perspective of Rohan and Michael's relationship that she shared with Helen and Jim.  Ms Lloyd's pointed responses to questions in which she took the opportunity to reiterate her view, was telling.  The following exchanges in cross examination exemplified that attitude:[31]

   [31] ts 297.

   MR NASH:  You've given evidence you knew of Rohan being in Mike's life; would you agree with that?

   MS LLOYD: As a friend.  Yes.

   MR NASH:  And that was over a long period of time; would you agree?

   MS LLOYD: On and off.  Yes.

   MR NASH:  All right.  There was a period between 2007 and 2010 when they were off; do you agree with that?

   MS LLOYD:  Yes.

   MR NASH:  And in the period prior to – leading up to Mike being admitted to hospital in December of 2021, you saw Mike and Rohan, did you not, together?

   MS LLOYD:  Michael had come down to the South West and ‑ ‑ ‑

   MR NASH:  Yes?

   MS LLOYD: Yes.  And – and Rohan had come with him.  Yes.

   MR NASH:  So Rohan and Michael were together?

   MS LLOYD: They were companions on a trip.  Yes.

   MR NASH:  Well, they were together, were they?

   MS LLOYD: They were – yes.  They were in the same space at the same time.  Yes. 

3. Ms Lloyd's evidence that she did not see Rohan 'very often at all' in 'the last couple of years of Mike's life' was not persuasive.  That time period reflects, of course, the precise statutory timeframe that is the subject of Rohan's application.  It also includes a time period when it is plain that Rohan and Michael were living together in the same home, sharing the same bed, and spending much time together.

4. It was also clear that Ms Lloyd shared Helen's perspective about the significance of the help that Michael's family had given him.  When asked why she and Jim were selling their property in Bridgetown, Ms Lloyd explained that it was enable her and Jim to give more support to Michael.  She added gratuitously, 'as he had had from all of his family'.[32]

Craig Walkemeyer

[32] ts 299.

1. Evidence was given next by Craig Walkemeyer.  He went to primary and high school with Michael.  He and Michael were part of the same group of friends.  They lost contact in adulthood, but saw each other again at the primary school reunion in February 2020.  Mr Walkemeyer thinks he may have seen Michael a couple of times in the interim at other reunions, but he could not recall.  Mr Walkemeyer saw Michael again at a funeral in June 2021, but did not discuss his personal life.  Mr Walkemeyer was first aware of Rohan because at the primary school reunion in February 2020, friends mentioned that Michael was being dropped off and picked up by Rohan.  I observe that this evidence does not sit comfortably with that of Mr Galluccio who said that he brought Michael to the reunion in February 2020.  This issue was not explored.  Mr Walkemeyer also thought that his friends mentioned at the reunion that Michael and Rohan were 'living together'.  As will be explained, it was on the basis of that understanding that Mr Walkemeyer mentioned Rohan as well as Michael's family at the speech he gave at Michael's wake.  He did not meet Rohan until he went to visit Michael at his mother's house in his dying days, and Rohan was there. 

2. I found Mr Walkemeyer to be a straightforward and honest witness.  He did not appear to have any particular connection or friendship with either the Codde or Curwood families.  I accept his evidence.

Kyele Wickenden

1. Evidence was given next by Kyele Wickenden.  He met Michael in the mid to late 1980s, and they became friends and had a mutual friend in Bryn Davis.  He would see Michael every couple of months at Bryn's house, or for lunch with Bryn in Fremantle.  He would also see Michael at the pool or gym.  Mr Wickenden said that Michael would tell him about people he had met, and liaisons that Mr Wickenden assumed Michael had met through the gay community.  Mr Wickenden remembers Michael mentioning Rohan, and he remembered meeting Rohan, he thought, at Michael's place in Fremantle.  Mr Wickenden gave evidence that he saw Michael's name on a gay dating site named Gaydar.  Mr Wickenden recalled that on the dating site, Michael's profile stated that he was single.  Mr Wickenden said that he first recalled seeing that approximately six years before Michael died.  In cross examination, he accepted that might have been at some time between 2007 and 2010.  His evidence was that he saw Michael with Rohan three or four times, but saw Michael more often without Rohan.  Mr Wickenden said that when he saw them together, Michael and Rohan just seemed to be friends.  In cross examination, Mr Wickenden said he did not know that Rohan was living with Michael in Fremantle between 2014 and 2016.  When asked if he knew they shared a bed, Mr Wickenden ultimately said he did not know. 

2. Mr Wickenden's recollection of events did not present as strong or reliable.  He did not know of Rohan living with Michael in Fremantle, or of them sharing a bed.  The evidence was of limited assistance. 

Michael's illness and death

1. I turn now to the evidence regarding the period of Michael's hospitalisation and his eventual death. 

2. Rohan first observed that Michael was not well around the time they took a trip to the southwest of Western Australia in 2021.  Around October 2021, Helen said that she and her mother also noticed that Michael did not appear to be well and had lost weight.  Helen and her mother organised for Michael to see his GP.  Helen's evidence was she took Michael to the GP.  The GP referred Michael for a colonoscopy and Helen says she insisted on other tests as well.  Helen says she made some efforts to ensure the colonoscopy was organised promptly.  Following the visit to Michael's GP, Rohan took Michael to hospital for the colonoscopy procedure on 8 December 2021.  Following the procedure, Rohan went back hospital to pick Michael up.  Shortly after, Helen accompanied Michael to a specialist and then Michael was admitted to Sir Charles Gairdner Hospital for a brief period.  Rohan then took Michael for admission to Royal Perth Hospital around 15 December 2021.  Helen's evidence was that on 17 December 2021, she was advised by the specialist by phone of the seriousness of Michael's condition.  She went immediately by Uber to see Michael at Royal Perth Hospital.  When she arrived, Rohan was there with Michael.[33]

   [33] ts 262.

3. During the time that Michael remained in hospital, from 15 December 2021 to 14 January 2022, Rohan's evidence was that he visited him on most days, and phoned him on days he did not visit.  Rohan's mother Anke went with Rohan on one occasion shortly before Christmas.  The hospital notes confirm that Rohan was present regularly. 

4. From the point shortly after Michael was hospitalised at Royal Perth Hospital, it was clear to everyone that Michael was extremely unwell.  Tensions emerged among the various people who were concerned for and cared for Michael.  There was some contention on the evidence about tense exchanges between Helen and Rohan regarding Michael's clothes, and Michael's key to Rohan's unit in Subiaco.  There were plainly different recollections of what transpired.  The evidence was quite unclear and, in my view, nothing turns on it regarding the substance of Michael and Rohan's relationship.  These were matters that arose in the difficult and strained circumstances that prevailed.  I do not accept the defendants' suggestion that they reflected any breakdown or permanent deterioration in Michael's and Rohan's relationship.  In any event, and for the reasons I have explained, to the extent that there was a material difference in the recollection of those events, I prefer Rohan's recollection over that of Helen.  That is not to say that I considered Helen to be untruthful.  I have no doubt that her perception of how things unfolded was genuine.  But her perspective was not objective, and I did not find her recollection to be reliable.

1. A bundle of hospital records was admitted into evidence.  They included the hospital admission forms for the colonoscopy of 8 December 2021.  Rohan's name was recorded under heading 'Next of Kin/Contact 1'.  Next to 'Relationship to patient' was written 'Friend'.[34]  Similarly, the Procedure Assessment Form which included the discharge listed 'Rohan/Friend' as the contact person and recorded Rohan as the person who escorted Michael on discharge.[35] 

   [34] TB1, page 1.

   [35] TB1, page 4.

2. The hospital notes contained an entry for 21 December 2021 relating to 'SW'.  It was plain in context that SW referred to a social worker attending to Michael.  The note related to the need to attend to Michael's Centrelink payments, and a recommendation for Michael to complete an 'EPA'.  In context, that was reference to an enduring power of attorney.  The note went on to record:[36]

   [Patient] clearly stated wish to appoint friend/housemate Rohan as nominee [phone number].  [Patient] worried about how his family will react to him not choosing them and support given.  [Unclear] left with Rohan re C/link nominee.  SW to liaise with Rohan re: C/link nominee form.

   [36] TB5, page 13; MFI 5.

3. A form from the Centre for Wellbeing and Sustainable Practice dated 22 December 2021 ticked a box titled 'Intense emotions expressed' and recorded 'Anxiety/confusion regarding "power of attorney".  Fam[ily] very important to [patient]'.[37]  The note also records Michael's references to his accident as a teenager, feelings of guilt, concern that he may be dying, and his faith and belief in God.  The note is a poignant reflection of a man beginning to realise the seriousness of his illness, his mortality, and dealing with the tensions surrounding the people he loved. 

   [37] TB6, page 15.

4. A further note dated 23 December 2021 records a 'Social Work update' in the following terms:[38]

   Discussion today with Mr Michael Codde following concerns raised re [disability support pension] which has been ceased.  Review today with consent ...  sister Helen also on phone.  SW has contacted Centrelink who report that Mr Codde has not received a payment for 12 months as his 'partner' is earning too much money.  Mr Codde was unaware that he has not been receiving funds.  SW is waiting for a return call from Centrelink and will see Mr Codde 24/12/21 in the morning for further discussions.  Ongoing SW support as required.

   The evidence obtained from Centrelink demonstrated that this was incorrect.  The Centrelink pension was stopped because Michael did not respond to requests for information.  It is nevertheless of significance that the note emanating from the social worker referred to Rohan as a partner.

   [38] TB7, page 17; MFI 7.

5. Jim confirmed in his evidence that around that time, between 20 and 24 December 2021, the social worker told Jim that Michael's pension had ceased.  Jim said he worked with the social worker to try and have the pension restored.  According to Jim, that was part of the process that ultimately led to a formal application to the State Administrative Tribunal for Jim to be appointed plenary administrator of Michael's estate under the Guardianship and Administration Act 1990 (WA).

6. A note on 24 December 2021 at 9:40 am records 'Phone call to partner Rohan [phone number] to discuss plan'.[39] 

   [39] TB7, page 19.

7. A note of 11:30 am on 24 December 2021 is headed 'Psychiatry'.  It is evidently a note of a capacity assessment.  The note includes the following:[40]

   Interviewed in presence of Rohan, who said he was his partner of 20 years duration.

   ….

   No psychosis

   'I want to be with Rohan'

   [40] TB7, page 21.

8. I infer from the note in context that the words 'I want to be with Rohan' were spoken to the author of the note by Michael, and were sufficiently significant to the clinician to include in what is otherwise a fairly brief note.  The note indicates that the assessment was inconclusive.  It records under the heading 'Opinion' the following notation: 'Apologies for not providing a definitive yes or no re capacity.  Complex.  Suggest SAT hearing in [the new year] …'.[41]

   [41] TB7, page 21.

9. On 24 December 2021, there was a family meeting with a palliative care doctor.  The hospital note of 14:30 under the heading 'Palliative Care' appears to have been written by the doctor.  It lists the attendees as the doctor, a palliative care social worker Belinda, and 'Jim Codde (brother), Helen Codde (sister), Rohan (friend) - mother on phone'.[42]  A nursing note of the same day and obviously referring to the same meeting records 'Visited by family and partner for a family meeting'.[43]

   [42] TB7, page 23.

   [43] TB7, page 24.

10. The notes of the meeting from the palliative care doctor included:[44]

    Discussed discharge disposition.

    [A]ll in agreement of [discharge] home @ mum's place in Floreat.

    [44] TB7, page 23.

11. The note then recorded 'Updated family re psych input'.  This was a reference to the capacity assessment undertaken that morning and the need to appoint a 'guardian/financial guardian'.  The note records this was explained to Michael and then states, 'Rohan did not feel confident with taking on above roles'.[45]

    [45] TB7, page 23.

12. Rohan's recollection of that meeting was that Michael expressed a wish for Rohan to take on the role of guardian. I pause to observe that the recollection is consistent with the hospital note of 21 December 2021 referred to at [57] above. Rohan's evidence was that Jim explained to him that the role would be very difficult, and that it required maintaining notes of all expenses 'and all of those factors'.[46]  Ultimately, Rohan did not feel confident in making the sorts of decisions that would be required.  He did not feel comfortable in that role and deferred to Jim.  It was put to Rohan in cross examination that 'you first put forward, "Yes.  I will do it", and then you pulled out'.[47]  Rohan agreed with that proposition.

    [46] ts 59.

    [47] ts 147.

13. In his evidence, Jim did not mention that Michael said he wanted Rohan.  Rather, Jim said that when it was brought up Rohan immediately said he wanted to do it, but when Jim and the social worker explained to Rohan some of the responsibilities Rohan 'very quickly withdrew that offer and my brother said he wanted me to take on that responsibility and I accepted that'.[48]  That evidence was an example of a thinly veiled undertone in Jim's evidence characterising Rohan as impetuous and irresponsible, and himself as a noble actor.

    [48] ts 226.

14. It is plain that Rohan, who did not feel qualified or comfortable, was made to feel all the more inadequate by Jim's confidence and sophistication.  It is hardly surprising that Rohan 'pulled out'.  He realised that, in light of what had been explained to him, it was likely to be in Michael's interest for Jim to assume that role.  In the circumstances, the fact that Rohan 'pulled out' was not a reflection of his lack of care or commitment to Michael. 

15. The note that 'all in agreement' that Michael should be discharged to his mother's home was also broadly consistent with Rohan's evidence.  Rohan did not actually recall a discussion about Michael's living arrangements for when he was to leave hospital.  He did recall, however, that he was conscious of the fact that he only had a one‑bedroom unit, had work commitments, and would not have been able to provide the care that Michael would require.  Although he did not recall discussing the matter, it made good sense to Rohan for Michael to move to his mother's place in Floreat.  Rohan's unit was not a suitable place for Michael to go in his condition.  In cross examination, Rohan was challenged on the basis that he did not wish Michael to come back to Rohan's unit for other reasons.  It was also put to Rohan that he did not suggest that Michael move back to his place in Fremantle, where Rohan could have gone to look after him.  In my view, Rohan's agreement or perhaps acquiescence to Michael being discharged to his mother's place was understandable.  In the circumstances, it was indeed a sensible and appropriate course in Michael's best interests.  Rohan's agreement to that course did not reflect any lack of commitment to Michael, less still was it a symptom of a breakdown in their relationship. 

16. On Christmas Day in 2021, Rohan went to see Michael in hospital in the morning.  Rohan then went to spend the day with his family.  Michael was able to leave hospital later that day to attend Christmas with his family at his mother's house for a while.  According to Jim, Michael was there for two to three hours.[49]  The evidence showed that while Michael was at his mother's place, his mother rang Rohan to tell him that Michael was there and to invite him around.  There was some suggestion that Rohan felt he had already had too much to drink and did not wish to drive.  In any event, Rohan did not attend.  The defendants levelled some criticism at Rohan for this, implicitly suggesting that Rohan's commitment could not have been as deep as he claimed if he chose not to go round to see Michael on the occasion of what was plainly going to be his last Christmas.  Rohan responded by saying, 'well, maybe I just wanted to spend time with Mike'.[50]  In my view, the criticism of Rohan overlooks the tensions and complexities that attended the various relationships at a very difficult time.  Rohan had been to see Michael alone that Christmas morning.  Whether or not he had a few drinks, it is quite possible that he did not feel up to seeing Michael again that same afternoon, together with Michael's family, with the emotional distress that he may well have felt the occasion would bring.  It is also entirely possible, if not probable, that Rohan was aware of brewing resentment on the part of Michael's siblings about aspects of his relationship with Michael.  In the circumstances, I would not infer from Rohan's decision not to visit Michael's family on that afternoon as reflecting any deficiency or deterioration in his relationship with Michael. 

    [49] ts 228.

    [50] ts 149.

17. On 10 January 2022, the notes record a second 'family meeting' with the palliative care team attended by Michael and Rohan, with Jim and Helen attending by phone.  The oral evidence of Rohan and Jim also confirmed this meeting.

18. Rohan also gave evidence that at some point while Michael was still in hospital, he overheard a conversation between Michael and a social worker behind drawn curtains in which Michael told the social worker that he wanted Rohan to have his home.[51]  Rohan did not follow that up at the time with Michael or anyone else.  He followed it up with Jim towards the end of March 2022, some weeks after Michael's death.[52]  The evidence of Michael's conversation with the social worker was not contained in the outline of Rohan's proposed evidence filed with the court.  There was no note of the conversation in the hospital records.  The social worker was identifiable at least by name.  She was not called, and no information was provided about her availability.  There is no evidence about Michael's precise condition and state of mind at the relevant time.  In the circumstances, I do not consider there is a sufficient evidentiary basis for me to find that Michael expressed a clear and considered wish for his home to be gifted to Rohan.  Thus, I would not accept this as a factor which assists in demonstrating the nature of the relationship between Michael and Rohan. 

    [51] ts 62.

    [52] TB39, page 289; ts 119.

19. Michael was discharged from Royal Perth hospital on 14 January 2022, and went to his mother's place in Floreat.  The hospital discharge summary states that Michael 'lives independently with friend in own apartment'.[53]

    [53] TB19, page 51.

20. After Michael moved to his mother's house, Rohan's evidence was that he spent most nights in the room with him.  Michael was in a hospital bed which arrived soon after Michael went to his mother's house, and Rohan in an old double bed in the room.  Rohan said he spent four or five nights a week at Michael's mother's home.  In the week of Michael's death, Rohan took time off work and was mostly at Michael's mother's house.  Those matters were not substantially challenged.  As with the other aspects of Rohan's evidence, I accept that evidence.

21. Rohan said he was constantly by Michael's side, and assisted with his care where he could.  Rohan's evidence was that three days before Michael died, Rohan proposed marriage, and Michael said yes.  Rohan accepted that marriage at that point was not a realistic prospect.  He explained in cross examination that in his mind, 'that is where we ended up'.[54]  He described the proposal and its acceptance as an 'affirmation'.[55] 

    [54] ts 123.

    [55] ts 123.

22. Silver Chain nursing assisted with Michael's care once he was discharged from hospital.  Silver Chain came regularly to Michael's mother's house in Floreat.  The initial Silver Chain 'Client summary' form lists Michael's living arrangements as 'Lives with family' and lists his address as his mother's Floreat home.  The Silver Chain Referral Form also lists Michael's address as his mother's home, and names his mother as his next of kin.  The Silver Chain Palliative Care Assessment and Management Plan lists Michael's mother as his primary carer.  Under the heading 'Social Assessment', the box marked 'Married/De facto' is not ticked.  The box marked 'Never Married' is ticked.[56]

    [56] TB21, page 61

23. A Silver Chain note dated 21 January 2022 has a section headed 'Family/Psychological'.  The handwritten notation states: 'Was living alone now [with] Mother Jan in Floreat brother Jim sister Helen'.[57]  There is no indication of who provided the information to the author of the note.  The notation is factually wrong, on any version of events.  It is plain that whatever the nature of Rohan and Michael's relationship, Michael was not living alone.  The note is significant because it demonstrates that the medical notes themselves contain information that may likely be the product of the perspective of the person providing the information.  It also demonstrates that there existed a perspective about Rohan and Michael's relationship that did not reflect the objective reality, but was nevertheless conveyed to and recorded by healthcare workers attending to Michael's care. 

    [57] TB21, page 65.

24. The Silver Chain notes indicate that Michael's mother was closely involved with his care in the period between his discharge from Royal Perth Hospital and his death.  The notes indicate also that Helen and Rohan were regularly present and involved in Michael's care, with Helen taking a dominant role.  Jim was not there as often, but remained involved.

25. The Silver Chain clinical notes, like the hospital notes, refer to Rohan variously as a partner and as a friend.  For example, the note of 23 January 2022 notes 'Michael has partner Rohan and has been staying with him'.[58]  The note of 24 January 2022 under the heading 'Social Work' refers to 'partner Rowan [sic]'.[59]  Other entries refer to Rohan as a family friend, or Michael's friend.  The note of 4 February 2022 records 'Family meeting; Present: [Patient], Janice (mother), Helen (sister), Jim (brother, EPG), Rohan ([Patient's] friend)'.[60]  Although Rohan is referred to here as Michael's friend, it is noteworthy that the event is described as a family meeting.  The note goes on to say that Jim will remain in Perth for next few weeks to provide support, Helen 'attempting to stay' at the home most nights, and Rohan 'will stay overnight and assist where possible'.[61]  The note of 8 February 2022 records 'Michael actively dying but appears comfortable.  Partner of 20 years in attendance in the room'.[62]

    [58] TB22, page 131.

    [59] TB22, page 128.

    [60] TB22, pages 103 - 104.

    [61] TB22, page 105.

    [62] TB22, page 83.

26. Others also saw Michael during this period following his discharge from hospital.  Mr Galluccio gave evidence that he met with Michael for breakfast at Leighton Beach after Michael was discharged from Royal Perth Hospital and was living at his mother's home, but still mobile and able to go out.  His evidence was that he had initially arranged to pick Michael up, but Michael's mother rang him to say Rohan would be bringing Michael to the breakfast.  Mr Galluccio gave evidence that at the breakfast, Rohan and Michael sat quite a way apart and did not interact.  Mr Galluccio said that Rohan did not really say anything, and he described the situation as uncomfortable.  Mr Galluccio said he continued to go and see Michael at his mother's house three or four times a week.  He said that when he went, Michael's mother was there, but he did not see Rohan there.  If Mr Galluccio went as often as he said, it is surprising he did not see Rohan there on a single occasion in light of the other evidence, including the documentary evidence, of Rohan's presence at the Floreat home during that period.  I did not find this aspect of Mr Galluccio's evidence persuasive.  Rohan is a reserved and shy man.  He was taking Michael in his dying weeks to catch up with an old friend.  It is unremarkable that there may have been some awkwardness or that Rohan may have stood back to allow Michael and his old friend their own space.  Mr Galluccio's assessment disclosed his affinity for Helen's perspective on the matter, rather than a considered and objective view.  That was reinforced when Mr Galluccio was asked if he had any involvement with the wake.  His answer was: 'A little bit.  I tried to help Helen who was doing it all'.[63]  That evidence reflected the thinly veiled resentment Helen expressed in her own evidence that Rohan had not assisted with the wake.  Mr Galluccio was asked in cross examination if he remains friends with Helen and Jim.  He answered yes.  He was then asked if he maintained contact with them.  He answered 'particularly with Helen' and 'I still talk to her'.[64]  Although he denied the suggestion that he had talked with Helen about this case, I do not accept that denial.  It was plain in my assessment that Mr Galluccio shared, at least to some degree, Helen's perspective of this case and of Rohan in particular.

    [63] ts 286.

    [64] ts 287.

27. Mr Wickenden visited Michael at both Royal Perth Hospital and later at Michael's mother's home.  His evidence was fairly vague about how often he went, but it appears he went a number of times to each location and he saw Rohan there on some of those occasions.  Mr Wickenden did recall that when he visited Michael at his mother's home, there was another bed in the room in addition to Michael's hospital bed.  That was the bed which Rohan described and said he slept in during that period.

28. In the meantime, following on from the meeting at Royal Perth Hospital on 24 December 2021, it appears that on 30 December 2021, Jim lodged an application in the State Administrative Tribunal for appointment as administrator of Michael's estate under the Guardianship and Administration Act1990 (WA).[65]  The application does not appear to have been opposed.  On 20 January 2022, orders were made by the State Administrative Tribunal appointing Jim as the plenary administrator of Michael's estate.[66] It appears that Michael's ambivalence about that, reflected in the hospital note of 21 December 2021 described at [57] above had not evaporated. The Silver Chain clinical note of 19 January 2022 recorded the following:[67]

    There is a SAT hearing on 20/1/22 where it is expected that Mike's brother Jim will be appointed POG.  Both Mike and Jan have voiced concerns about this.  I have tried to reassure them that Mikes [sic] wishes should be honoured and that Guardianship orders are thoroughly reviewed and that Mike's wishes are paramount.  Despite this reassurance, this remined [sic] Mike's main concern. 

    [65] TB33, page 281.

    [66] TB34, pages 282 - 283.

    [67] TB22, pages 134 - 135.

29. There was a marked difference in the evidence between Rohan on the one hand, and Jim and Helen on the other, regarding Rohan's efforts in caring for Michael in his final weeks.  Rohan claimed to have assisted where he could with the tasks of caring for Michael.  Jim and Helen maintained that Rohan was unreliable and not as attentive as he claims to have been.  Jim's evidence was the roster he set up for Michael's care in the last two weeks did not operate as was intended due to Rohan's unreliability.  Having heard the evidence, in my view, it is likely that these conflicting recollections are primarily reflective of the differing personalities involved, overladen with the growing emotional tension that prevailed at the time.  Jim and Helen presented as very well-intentioned, but confident and fairly controlling personalities.  That was no doubt compounded in the difficult circumstances of Michael's unfolding demise.  Their expectations of contributions to Michael's care were likely to be high and confidently articulated.  Rohan was very different.  He was lacking in confidence, diffident and was likely to have sought to avoid situations of confrontation or potential conflict.  It is not hard to imagine how different perspectives may emerge in that atmosphere.  I have little doubt that Rohan genuinely believed he assisted where he reasonably could, and I have no doubt that Jim and Helen regarded Rohan as unreliable, if not incompetent.  The Silver Chain clinical notes admitted into evidence provide some limited, but relatively independent, window into what occurred.  Without traversing the notes in detail, it is sufficient to observe that Michael's mother Jan was very involved in Michael's care at her home.  That is unsurprising.  The notes also indicate that Helen was very involved in the management of Michael's care, and less so, Jim.  The notes suggest that the Helen's more confident personality asserted itself in that period.  She was described as aggressive and the source of some tension on more than one occasion.  Rohan is described variously as Michael's partner and friend and appears regularly in the notes, including at updates to the family, particularly as Michael's demise approached.  Although the notes reflect Helen's involvement and perhaps dominance, there is no suggestion of Rohan's withdrawal from the process or from attending to Michael's care.  On the contrary, the notes indicate that Rohan was there with Michael until his passing.  The 'Medical Review' note of 11 February 2022, the day before Michael's passing, begins 'Terminal Phase; Present: [Patient], Janice, Rohan'.[68]  In a rather telling reflection of the rift between Rohan and Michael's family and Rohan's exclusion, there is a heading in that note 'SOCIAL' which states: 'Discussed bereavement followup [sic] with Rohan - also wanting to be contacted once Mike passes, if Rohan not with rest of family; Rohan's contact details noted'.[69] 

    [68] TB22, page 70.

    [69] TB22, page 71.

1. The notes reflect that as Michael's end approached, Rohan and Michael's family all rallied around him.  The clinical note of 9 February included the following comments:[70]

   MEDICAL REVIEW: Present: [Michael], Janice, Helen, Rohan

   …

   Assisted [Michael] onto commode with Rohan + Helen;

   …

   Helen and Rohan currently feel that [Michael] is settled and not wanting to make him any more drowsy

   …

   Family continuing to provide good support, Janice + Rohan + Helen/Jim present each night. 

[70] TB22, pages 76 - 78.

1. On 11 February, the clinical note included:[71]

   ...  respirations concerning me that he was letting go.  Prepared partner and mum that maybe soon.

Michael's death

[71] TB22, page 72.

1. Michael died the next day, on the afternoon of 12 February 2022.  The clinical notes indicate that Helen notified Silver Chain of Michael's passing.  It was clear from the evidence that once Michael died, his family took control of matters, particularly his sister Helen (although it was Jim who organised the funeral director).  Rohan was not involved in providing information that led to the death certificate, and he was not involved in the arrangements for Michael's body or organising any memorial event.  Indeed, he was not advised of any funeral.  The death certificate makes no reference to Rohan as Michael's partner.  It appears that all of those matters were attended to exclusively by Michael's family.  I do not consider that Rohan's absence from those tasks bears upon the nature of his relationship with Michael.  Michael's family obviously felt entitled and best placed to attend to those matters, and they did.  Rohan's shy and diffident nature meant he was not inclined to push himself into the way of others.  Those matters were, in any event, not matters of which he had any experience or skill.  Understandably, he let those matters take their course under the control of Michael's family, particularly Helen. 

2. On 15 February 2022, two death notices appeared in the classified section of the West Australian newspaper.  Rohan published a death notice in the following terms:[72]

   Many fond and treasured memories shared with this beautiful soul.  My partner for almost 20 years, tragically cut short on Saturday the 12^th of February.  Condolences to the Codde family.  R.I.P.

   [72] TB37, page 286.

3. A further notice appeared in the flowing terms (below a photo of Michael):[73]

   Mike, you were sent as a gift for us to share for nearly 59 years, and now, sadly we have to give you back.  Thank you for being such a large part of our lives.  Now off to be with Dad and others who have touched your life.  Have fun, but we will miss you always.  Love forever, Mum, Dad (deceased), Helen, and Jim with his family, Liz, Sarah and Lizzy.  xxx

   [73] TB37, page 286.

4. Rohan said in evidence he believed there was a cremation, but the more significant ceremony was a wake held on what would have been Michael's 59^th birthday on 27 February 2022 at Michael's mother's home.  Rohan and members of his family attended, including his parents and brother Matthew.  Rohan was not involved in organising the event.  That was done by Helen.  A number of people spoke at the wake, including Jim and Helen, and some of Michael's friends.  Rohan recalled that friends mentioned him in their speeches, but Jim and Helen did not.  Jim readily accepted that he did not mention Rohan in his speech.  Rohan did not speak, although he was invited by Helen to do so.  Rohan explained that he was 'not big in public speaking'.[74]

   [74] ts 69.

5. Michael's friend, Mr Walkemeyer, gave a speech at the wake.  His evidence was that in his speech, he acknowledged both Michael's family and Rohan.  As noted above, he said he acknowledged Rohan because he understood from what had been discussed among friends at the primary school reunion of February 2020 that Michael and Rohan were 'living together'.[75] 

   [75] ts 305.

6. Mr Wickenden also spoke at the wake.  His evidence was that he recalled mentioning both Michael's friend Bryn and Rohan in his speech.  In cross examination, Mr Wickenden acknowledged that he placed a death notice for Michael in the newspaper on 17 February 2022 in the following terms:[76]

   CODDE (Michael):

   Fond memories of you dear Mike.  I'll miss your happy smile and sense of humour.  Always thinking of others.  Sincere condolences to Rohan, Jan, Helen, Jim and family.  Love and thoughts Kyele. 

   [76] TB38, page 287; ts 320.

7. In re-examination, Mr Wickenden appeared well prepared in explaining the reference to Rohan in the death notice.  He was asked, 'why did you include Rohan in the death notice?'.  Mr Wickenden answered:[77]

   I could see that Rohan was a friend of Michael's, and I was simply acknowledging his friendship with Michael.  I wasn't implying anything.  A friend of mine put a notice in the paper when I lost a friend and acknowledged me.  So I was just acknowledging his friendship.

   [77] ts 321.

8. I did not find that response persuasive.  Bryn was also a close friend whom Mr Wickenden acknowledged in his speech, yet not in the death notice.  Mr Wickenden's explanation for that was that he had been able to pass on his wishes to Bryn personally.  I pointed out to Mr Wickenden that he had expressed his condolences personally to Jan, Jim and Helen as well, yet he felt the need to acknowledge them in the notice.[78]  I did not find Mr Wickenden's explanation plausible.  Moreover, the death notice mentions Rohan first, before other members of Michael's family.  I find that Mr Wickenden mentioned Rohan in the death notice because he regarded Rohan as Michael's partner, not just a friend.

   [78] ts 321 - 322.

Findings

1. Arising from that review of the evidence, I make the following findings relevant to the issues for determination in these proceedings.

2. I accept Rohan's evidence and his account of his relationship with Michael.  In particular, I accept that from at least 2014, Michael and Rohan lived together at the same residence, first at the house Michael owned in Fremantle, and then from 2016 at the unit Rohan owned in Subiaco.  I find that after Rohan and Michael moved to Subiaco, Michael regularly attended the house he owned in Fremantle to collect mail and attend to his garden.  He slept there from time to time, but his principal residence was at Rohan's unit in Subiaco.  I find that Michael predominantly, if not overwhelmingly, spent his time living at the Subiaco unit.  As his bank statements also indicate, Michael also spent much of his time outside the Subiaco unit, in that vicinity.

3. At the house in Fremantle, and then at the unit in Subiaco, Rohan and Michael slept in the same bed. I find that the intimacy shared by Rohan and Michael referred to at [17] above was, of itself, plainly sexual. Moreover, I infer and find that the sexual activity between Rohan and Michael that Rohan described in his evidence was not exhaustive and that it likely went further than the specific activities that Rohan, with understandable reservation, described in his evidence.

4. I find that throughout that period, that is from at least 2014 when Rohan moved to the Fremantle house, Rohan and Michael broadly shared ordinary domestic life together.  They generally ate breakfast and the evening meal together.  They went out on a regular basis to cafés and restaurants, to the football, and to concerts.  They shared events and special occasions together, such as birthdays.  They regularly, although not invariably, shared occasions with each other's families, such as family birthdays and Christmases.  They each remained close to their own family.  Each would therefore also share occasions such as Christmases and birthdays with their own family, without the other.  But there was a significant attendance at each other's family events.  It is significant that at Michael's father's funeral, at Michael's request, Rohan travelled in the funeral car with the immediate family.  That indicates that Michael and Rohan regarded each other as the equivalent of family, and more than close friends.  Michael and Rohan travelled on holiday together from time to time.  Although Rohan continued to travel occasionally with his own parents, his ongoing relationship with his parents was not at the expense of, and did not diminish, his relationship with Michael.

5. I accept that there was occasional volatility and no doubt some significant bumps in their relationship, and perhaps even episodes of sexual activity with others by Michael.  But those matters did not alter, less still sever, the fundamental character of the relationship.[79]  I find that Rohan and Michael shared a mutual commitment to each other as a couple, and that each intended that relationship to endure. 

   [79] See H v P [2011] WASCA 78 [56] - [58]; Britt v Office of State Coroner [2022] WASCA 75 [75].

6. I find that Michael and Rohan's relationship was not terminated or severed at any time prior to Michael's death.  Rohan and Michael's relationship remained intact, albeit in very different circumstances, from the time Michael went to hospital in December 2021.  I find that Rohan did what he reasonably was able to do to assist in Michael's care together with Michael's mother, Helen, and Jim.  Rohan stayed over in Michael's room at his mother's place for many, if not most nights of that period.  He continued to assist and be with Michael until he died.  His efforts may not have met the expectations of Helen and Jim, but there was nothing in Rohan or Michael's conduct that suggested their relationship was impaired.  On the contrary, I find that Rohan and Michael continued to regard themselves as a couple during the period from Michael's hospitalisation until the time that Michael died.

7. I find that Michael's siblings Helen and Jim exclusively managed matters arising from Michael's death.  That includes dealing with Michael's body and the reporting of Michael's death.  They largely excluded Rohan from that process.  In the circumstances, nothing can be inferred from Rohan's lack of involvement with those matters that would reflect adversely on his relationship with Michael.

8. A wake or memorial was organised by Helen.  Rohan attended with his brother Matthew and his parents, but was not involved in its organisation.  Helen invited Rohan to speak, but he declined.  Jim and Helen both spoke.  Neither mentioned Rohan at all in their speech, even as a close friend.  Given the personalities, perspectives and tensions involved, there is nothing remarkable about what unfolded.  In my view, what occurred reflected those personalities and perspectives.  It was not a reflection of the substantive nature of Rohan and Michael's relationship. 

9. Michael's friend Mr Walkemeyer spoke at the wake.  As noted, I found Mr Walkemeyer's evidence to be straightforward, independent and truthful.  It is significant that he mentioned Rohan in his speech because he understood from social interaction that Michael and Rohan were living together.  In my assessment, by that evidence Mr Walkemeyer did not mean that Michael and Rohan were simply residing in the same residence.  I find that he mentioned Rohan because he understood they were living together as a couple.  In addition and as noted, Mr Wickenden included Rohan first in his death notice.  As I have found, that too reflected an understanding of Rohan and Michael's relationship as a couple.

Particular features of Rohan and Michael's relationship

1. There were aspects of Michael and Rohan's relationship that distinguished it from more conventional relationships.  Before turning to those features of the relationship, it is necessary to make some general remarks. 

2. Human love and companionship manifests in a broad spectrum of relationships.  It is shaped by the personalities and dispositions of the two people involved.  People may bring to their relationships certain physical, cognitive, or psychological challenges which may render the relationship different in its content and presentation from the mainstream.  But it does not follow that those who endure such difficulties are incapable of forging a consensual bond of human love and enduring commitment that bear the indicia of a marriage-like relationship.  Each relationship is shaped by peculiar features of the parties involved.  And each such relationship must be assessed by reference to its particular facts and circumstances.

3. The law too recognises this, though in language perhaps more clinical than such relationships merit.  As was observed in Britt v Office of State Coroner [2022] WASCA 75 (Britt) at [18] in relation to the statutory language relating to the meaning of a de facto relationship (discussed below):

   [T]he broad language of s 13A of the Interpretation Act, like s 4AA of the Family Law Act 1975(Cth), accommodates the great variety of ways a de facto relationship may exist. The relevance and relative significance of the factors listed in s 13A(2) will depend upon the circumstances of the case and the particular relationship.

4. Against those general remarks, I turn to consider some of the less conventional features of Rohan and Michael's relationship. 

Finances

1. First, is the nature of their financial interdependence.  Each owned and maintained their own house.  They did not contribute to each other's expenses in that regard.  When Rohan lived at Michael's house in Fremantle, he did not pay rent or contribute to its upkeep.  Similarly, when Michael lived at Rohan's place at St James and then later in Subiaco, he did not pay rent or contribute to the unit's upkeep.  Michael contributed to various expenses, such as food and outings, in light of the fact that Rohan bore the expenses of the residence in Subiaco that they lived in together.  Thus, while they did not pool their finances or contribute to each other's property, there was at a practical level a significant degree of mutual financial support through the provision of accommodation.  To the extent that neither charged the other rent, and one or the other paid for different joint expenses such as food, eating out or outings, Rohan and Michael supported each other financially.  This was informal and unplanned.  But the lack of conscious planning in relation to these matters was itself a reflection of their mutual, albeit unstructured, commitment to each other.

2. Michael was in receipt of a disability pension, at least until it was terminated at some point before he was hospitalised.  Michael continued to receive financial support from his family, particularly his mother, although there was no real evidence of its extent.  The support from Michael's mother and sister was not only financial, but also in organising his affairs.  Michael had some employment, for which he received payment.  The funds Michael received from these sources were very modest.  He had his own bank account, which he maintained separately.  Rohan did not have access to that account.

3. Rohan was, for the most part, employed in relatively low-paid employment.  He too maintained his own bank account, and there was no suggestion that Michael had access to that account.

4. It is clear that there was no real mingling of their financial arrangements.  Rohan in his cross examination readily and candidly accepted that he and Michael did not discuss the acquisition of joint assets, or the joining of their financial arrangements.  Rohan was aware of some, but not all, of Michael's financial arrangements.  Similarly, he was aware of some, but not all, of the financial support that was being provided by his family, and the arrangements they had in place.  Rohan unhesitatingly acknowledged that Michael's family had been very supportive of Michael. 

5. The unsophisticated simplicity, and perhaps naivety, with which Rohan and Michael conducted the financial aspects of their relationship is illustrated by the following passage of cross examination:[80]

   [80] ts 127 - 128.

   MR MOSER: Now, in terms of your living arrangements, we have already gone through the time when you were living in Freo, what expenses you covered.  Right?

   ROHAN:  Mmm.

   MR MOSER: Which is basically living expenses.  Right? Nothing towards the property itself and rates and utilities.  Right?

   ROHAN:  No.

   MR MOSER: Would you agree with that? Now, at Subi, it was the same, just the other way around?

   ROHAN:  Exactly.

   MR MOSER: Yes.  And neither you nor Mike ever gave a lot of thought about [how] this was working.  You just found a way to – you pay for some expenses; he paid some other expenses?

   ROHAN:  Yes.  I guess so.

   MR MOSER: You never had any discussion about how should we do that?

   ROHAN:  No. 

   MR MOSER: No.  You never had a discussion about, let's set up a joint account where we can both contribute to our joint - - -?

   ROHAN:  No. 

   MR MOSER:  - - - living expenses?

   ROHAN:  No.

   MR MOSER:  No.  And in fact, you never had a joint asset, did you?

   ROHAN:  No.

   MR MOSER:  Never owned anything together in both of your names?

   ROHAN:  No.

   MR MOSER:  No.  And you just took your relationship day by day without thinking too much about the long term?

   ROHAN:  We were living day by day, pay cheque to pay cheque.

6. The hospital notes suggested that Michael was not aware that his pension had ceased.  As noted above at [59], the pension ceased because Michael did not respond to requests for information.  That is a reflection of the lack of financial awareness and discipline that Michael brought to the relationship.  In my assessment, the fact that Rohan and Michael did not share financial arrangements, or even so much as discuss them, is more symptomatic of their general lack of organisation and sophistication than a manifestation of any deficiency in mutual commitment or affection. 

   Michael's nominated address

7. I have found that Michael lived with Rohan from 2014 to 2016 at Michael's Fremantle house, and from 2016 until Michael's hospitalisation at Rohan's Subiaco unit.  Nevertheless, the evidence established that Michael continued to use his Fremantle house as his postal address and for official purposes.  That included things such as the electoral roll, and his nominated address on the hospital patient registration form. 

8. There is no doubt that Michael routinely gave the address of the house he owned in Fremantle when required to provide his address.  It does not appear to me that Michael was likely to have invested any particular deliberation into that routine.  The evidence did not suggest that Michael was a person who was likely to have been attentive to changing his postal address in circumstances where he maintained his ownership of the Fremantle home and was able to collect his mail there from time to time.  The fact that Michael did not alter his postal address, or his routinely nominated address, to conform with his living arrangements, in my view, says very little about the quality of his relationship with Rohan.

Other friendships

1. Rohan accepted that Michael was outgoing, formed friendships quickly and easily, and was gregarious and physically affectionate.  In contrast, Rohan presented as far more reserved.  He was uncomfortable with public displays of affection.  It is unsurprising that Michael may well have enjoyed a broader and deeper circle of friends than Rohan, and may have publicly displayed a level of physical affection to others, perhaps even more so than to Rohan in the presence of others.  It is also possible, as the defendants suggested, that Michael may have had other sexual liaisons during the course of his relationship with Rohan.  The evidence did not go so far as to establish that to be the case.  Speaking generally, infidelity or sexual liaison outside the relationship is usually, if not invariably, a factor in assessing the quality of a relationship.  Many may consider such conduct wrongful.  But it is hardly novel to observe that many marital and marriage-like relationships endure episodes of infidelity.  The relevant question is whether such conduct, either of itself or combined with other factors, negated the existence of a marriage-like relationship.  As I have noted, the evidence did not establish that Michael engaged in sexual relationships outside his relationship with Rohan.  However, even if that were the case, in my assessment it would not of itself be fatal to the existence of a de facto relationship if it were otherwise established on the facts.  Whatever dalliances Michael may have had, his relationship with Rohan remained a constant feature of his life in the years leading up to his illness from at least the time Rohan moved to Fremantle in 2014.

1. The defendants referred particularly to a friend of Michael's by the name of Bryn.  Rohan accepted that Michael had a very close relationship with Bryn, which he described as 'fatherly'.  The defendants appeared to suggest that the relationship may have had included a romantic or sexual quality.  Whatever the relationship may have been in earlier years, it was not in dispute that Bryn, who was some 20 years older than Michael, suffered from Parkinson's disease and was in a nursing home for a number of years leading up to Michael's death.  It was not suggested that Michael shared a residence with Bryn at any time after Rohan and Michael first commenced a relationship.  Whatever relationship Michael may have had with Bryn historically, I find that it did not impugn the quality of the relationship between Michael and Rohan from at least 2014 when Rohan moved to Fremantle, and certainly in the relevant statutory period, that is, the two years leading up to Michael's death. 

Centrelink declarations

1. The defendants pointed to statements made by both Michael and Rohan to Centrelink recording their status as single.  The defendants submitted that this indicated that Michael and Rohan were not, in truth, in a de facto relationship.  It did emerge from the evidence that each of Rohan and Michael, each at some point but on a separate occasion, provided information to that effect to Centrelink.  The issue was not explored in any great detail and there was scant evidence of the circumstances surrounding the provision of that information by Michael and Rohan.  I accept that the evidence is relevant and is an element that weighs against a conclusion that Michael and Rohan were in a de facto relationship.  However, the evidence of how Michael and Rohan lived their lives on an ongoing and enduring basis is more significant than how they chose to characterise their relationship at a particular time for a particular purpose about which very little is known.  In my view, the information provided by Michael and Rohan about their relationship status cannot be determinative of the substantive characterisation of their relationship, particularly in light of the far more comprehensive evidence of how they lived their lives.

Perspective of Michael's siblings

1. I have already made some observations about Jim and Helen's evidence and perspectives.  It is appropriate to make the following additional remarks.  Jim and Helen (and Ms Lloyd) were insistent that Rohan and Michael were just good friends.  For the reasons I have explained, I have significant reservations about the reliability and objectivity of their evidence, and I do not accept that characterisation of Michael and Rohan's relationship. 

2. In particular, Jim and/or Helen tended to explain Rohan's presence at various events, including family meetings with the palliative care clinicians at the hospital, on the basis that Rohan was just a close friend of Michael, and the family were very accepting of Michael's friends in such matters.  I have no doubt that Helen and Jim were genuinely attentive to Michael's emotional needs and his relationships.  They were indeed content to accommodate Michael's friends.  But including Rohan in serious hospital-based meetings with the family and the palliative care was not simply a manifestation of the family's tolerant embrace of Michael's close friendships.  Common sense and ordinary human experience suggest those meetings are not occasions for 'friends', even close friends.  Like Rohan's presence in the car at Michael's father's funeral, it reflected a status that Rohan and Michael's relationship bore that distinguished it from mere friendship, or even very close friendship. 

3. The defendants also sought to characterise Michael's medical care as having been managed by them, to the exclusion of Rohan.  Jim's evidence was that consent to undergo any type of medical procedure was sought from him.  Jim's recollection was that 'Rohan had no direct input around the care provided as - in - in a formal way like the family did'.[81]  I have no doubt that this was largely the case.  However, that was not a reflection of the nature of Rohan and Michael's relationship.  Rather, it was a reflection of the confident and articulate assertiveness of Jim and Helen, their skill and their deep concern for Michael, combined with their disregard for Rohan's competence to deal with matters.  Rohan's personality did not equip or incline him to do anything other than let Jim and Helen manage matters in a way that was in Michael's best interests.  These observations are illustrated by the Silver Chain clinical note of 12 February 2022, a short time after Michael's death, which states (ignoring spelling and grammatical errors):[82]

   Client's sister … Very loud and domineering of client's partner Rohan and client's mother Janice. 

   [81] ts 266.

   [82] TB22, page 67.

4. These matters reflect generally Jim and Helen's perspective that evolved from the difficult circumstances, their deep concern for Michael, and the significant gap in their confidence and abilities in contrast to Rohan.  They tended to perceive of Rohan not as Michael's life partner, but as, at best, a rather hopeless hanger-on, and at worst a conniving opportunist.  In my view, that perspective was driven in good measure by their sense of injustice as to what would happen to Michael's estate to which their parents had greatly contributed.  It was not, in my view on the evidence before me, shaped by an objective assessment of Michael and Rohan's relationship. 

5. It may also be observed that to some degree, some of the tacit or thinly disguised criticism of Rohan from Jim and Helen tended to accentuate, rather than diminish, the significance of the relationship.  These included suggestions that Rohan did not contribute sufficiently to Michael's care in his dying days when he did not fulfil his roster duties with Jim and Helen; that Rohan did not attend Michael's last Christmas at his mother's home; that Rohan withdrew his offer of assuming Michael's power of attorney; and that Rohan did not assist to organise, or speak at, Michael's wake.  In one sense, the criticisms appeared to be advanced on the basis that they suggested that Rohan was not as close to, or as caring for Michael as he claimed.  However, it is difficult to imagine that these criticisms could genuinely be levelled at Rohan in the absence of an unspoken appreciation that Rohan was, in truth, more than a close friend.  Indeed, the fact that Rohan was put on the roster with Michael's mother, brother and sister is itself indicative of a relationship that extended beyond close friendship. 

Legal principles

1. In light of those factual findings, it is necessary to turn to the meaning of a de facto relationship. Section 13A of the Interpretation Act 1984 (WA) provides that a reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between two persons who live together in a marriage‑like relationship.

2. That section goes on to provide that the following factors are indicators of whether or not a de facto relationship exists between two persons, but are not essential:

   (a)the length of the relationship between them;

   (b)whether the two persons have resided together;

   (c)the nature and extent of common residence;

   (d)whether there is, or has been, a sexual relationship between them;

   (e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (f)the ownership, use and acquisition of their property (including property they own individually);

   (g)the degree of mutual commitment by them to a shared life;

   (h)whether they care for and support children; and

   (i)the reputation, and public aspects, of the relationship between them.

3. In Britt, Mitchell JA said:[83]

   This court has considered the operation of this definition, in the context of family law proceedings, in its two decisions in G v O.  The following general principles may be derived from the discussion in those cases:

   1.To determine whether a relationship is 'marriage-like' requires an overall assessment of the facts and the relevant elements of the relationship.

   2.The concept of a marriage-like relationship involves a consensual union which is intended by the parties to endure.  In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow.  In the case of a 'marriage‑like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship.

   3.It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship.  The parties' common intention may be expressed, or it may be implied from their conduct and communications in all their circumstances.

   4.The text of s 13A indicates that there is a difference between persons living together and residing together. Section 13A recognises that it is possible for two persons to 'live together' without ever having 'resided together', so that the former concept is broader than the latter. The former concept would appear to encompass two people, who do not necessarily reside together, sharing their lives.

   (citations omitted)

   [83] Britt [73].

4. The broad language of s 13A of the Interpretation Act, like s 4AA of the Family Law Act 1975 (Cth), accommodates the great variety of ways a de facto relationship may exist. As already noted, the relevance and relative significance of the factors listed in s 13A(2) will depend upon the circumstances of the case and the particular relationship.

Conclusions on indicia of de facto relationship

1. I shall briefly address and state my conclusion in respect of each of the statutory factors, in light of the evidence and my findings.

The length of the relationship

1. I accept Rohan's evidence that he commenced a relationship with Michael in 2000, which continued until 2007 at which time the relationship diminished, and each had other relationships.  The relationship was revived in about 2010.  It is likely that between 2010 and 2014, when Michael lived predominantly at Rohan's place in St James, that Rohan and Michael were during that period living in all respects as a couple in a relationship intended by each of them to endure.  However, it is not necessary for me to reach a concluded view about that period.  I am satisfied that, from at least the time that Rohan moved into Michael's house in Fremantle in 2014, Michael and Rohan were living in a marriage-like relationship intended by each of them to endure, and that continued until Michael's death.  It is likely that Rohan and Michael lived together as a couple for 12 years from 2010.  In any event, I am satisfied that from 2014 until Michael's death, they lived together in a marriage-like relationship intended by each of them to endure.  That itself is a significant period of some eight years. 

Whether the two persons have resided together

1. On the basis of the evidence, I am satisfied that from at least 2014 until Michael's death, Rohan and Michael lived together.  They lived at the same residence and shared their lives together based at that residence.  Michael and Rohan lived together in every sense.

The nature and extent of common residence

1. The nature of Michael and Rohan's common residence was in the context of their sharing life as a couple, each with a commitment for that relationship to endure. 

Whether there was a sexual relationship

1. Whereas the term 'sexual relations' is often used as a synonym for sexual intercourse, the term 'sexual relationship' has a broader connotation (see Re A Medical Practitioner [1993] 2 Qd R 154 at 160 per Dowsett J). In my view, it encompasses at least two elements; the acts of intimacy themselves, and whether those acts were undertaken in the context of a consensual and ongoing commitment between two people. It is possible for two people to have sexual relations without those people being in a sexual relationship. It is also possible for two people to have a sexual relationship without engaging in sexual relations in the sense of sexual intercourse. A sexual relationship connotes two people engaged in acts of sexual intimacy that may (or may not) lead to sexual intercourse and where those activities are undertaken as part of an ongoing and continuing mutual commitment to one another.

2. The acts of intimacy described by Rohan in his evidence were plainly sexual.  They were undertaken on a consensual basis in the context of an ongoing relationship of mutual commitment.  That is sufficient to establish that Rohan and Michael had a sexual relationship. 

The degree of financial dependence or interdependence, and any arrangements for financial support

1. Rohan and Michael supported each other financially in the ways described above.  This was not done in any systematic, planned or formal way.  It unfolded in an ad hoc fashion as Rohan and Michael went about and shared domestic life.  Each of them had fairly limited financial means or resources.  It is of course possible for people of even limited means to have a structured basis for mutual support.  This was not what Michael and Rohan had.  They did not even have, or so much as contemplate, a joint bank account.  As noted above, this was a product of their personalities and circumstances.  It was not a manifestation of a lack of mutual concern or support.

The degree of mutual commitment by them to a shared life

1. In my assessment, from at least 2014, albeit without any significant conscious forethought or planning, Michael and Rohan went about their domestic lives with a mutual commitment to each other as a couple.

Care for and support of children

1. This factor is obviously not relevant.  Neither Michael nor Rohan had any children.

The reputation, and public aspects, of the relationship between them

1. The nature of Michael and Rohan's personalities and circumstances meant that there was a degree of ambiguity in the way their relationship manifested to others.  There was also limited independent evidence on this matter.  The most reliable guide to the public presentation of the relationship on the evidence is the set of hospital and nursing notes.  Those documents themselves reflect a level of ambiguity, describing Rohan variously as a partner and as a friend.  As noted, to some degree, the notes are also the product of information and perspectives conveyed by others.  Nevertheless, overall I consider that the notes convey the impression that Rohan was much more than a friend, and was indeed Michael's partner to be included in important family meetings regarding Michael.  The evidence of Rohan being in the family car at Michael's father's funeral, and the evidence of Mr Walkemeyer, reinforces that conclusion.

2. In my assessment, notwithstanding a degree of ambiguity, Michael and Rohan had a public reputation as a couple.  That is not to say that their interactions with third parties or public presentations invariably manifested or reflected that status.  There were no doubt occasions and contexts in which their presentation as a couple was not manifest or apparent.  However, the public presentation and reputation of Michael and Rohan's relationship as partners was sufficient, in my view, to conclude that whilst it was not universal and invariable, Michael and Rohan enjoyed a degree of public reputation as a couple. 

Conclusion

1. In all the circumstances, I have concluded that, on the evidence before the court, Rohan and Michael's relationship bore the indicia of a de facto relationship from at least the time Rohan moved into Michael's house in 2014.  Michael and Rohan's relationship involved a consensual union intended by each of them to endure.  That relationship continued until Michael's death on 12 February 2022.  There was no permanent rupture of the relationship and, on the contrary, the evidence was that it continued until Michael died.

2. I therefore conclude that on the evidence before the court, Rohan and Michael lived as de facto partners for a period of at least two years immediately before Michael's death. It follows that under s 14 and s 15 of the Administration Act, Rohan is entitled to Michael's estate as a spouse under item 3 of the Table. 

3. It also follows that Rohan has the greatest interest in Michael's estate.  There was no evidence to suggest that the grant of administration should not follow the usual rule, that is, that the grant should be made to the person with the greatest interest.

4. In the circumstances, Rohan should be granted administration of Michael's estate.

5. I would make orders:

   (a)declaring that at the date of Michael's death, Rohan was Michael's de facto partner and had been for a period exceeding two years; and

   (b)appointing Rohan as the administrator of Michael's estate.

6. I shall hear from the parties as to the form of orders, and any ancillary orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

YM

Associate to the Honourable Justice Solomon

16 OCTOBER 2024