Fairburn v Healey
[2009] WASC 114
•7 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: FAIRBURN -v- HEALEY [2009] WASC 114
CORAM: HASLUCK J
HEARD: 21 APRIL 2009
DELIVERED : 7 MAY 2009
FILE NO/S: CIV 1222 of 2006
BETWEEN: PETER FREDERICK FAIRBURN
Plaintiff
AND
GLYNN DAVID HEALEY
Defendant
Catchwords:
Succession - Probate and letters of administration - Application by plaintiff for grant of letters of administration of his deceased daughter's estate - Counterclaim by defendant of entitlement as de facto partner of deceased - Various evidentiary issues as to whether the alleged de facto relationship, if any, endured for two years immediately before the death of the intestate - Elements for consideration in determining whether a relationship may be characterised as de facto - Finding that the deceased and the defendant did not cohabit for a period of two years immediately prior to her death as de facto partners or otherwise - Order that the plaintiff as the father of the deceased is entitled to be granted letters of administration
Legislation:
Administration Act 1903 (WA), s 6, s 14(1), s 25(1)
Interpretation Act 1984 (WA), s 13A
NonContentious Probate Rules 1967 (WA), r 9, r 9(B)
Rules of the Supreme Court 1971 (WA), O 73 r 2
Result:
An order granting the plaintiff letters of administration
Category: B
Representation:
Counsel:
Plaintiff: Mr M N Solomon
Defendant: No appearance
Solicitors:
Plaintiff: DLA Phillips Fox
Defendant: No appearance
Case(s) referred to in judgment(s):
In the Goods of Loveday [1900] P 154
HASLUCK J:
Introduction
These proceedings concern the estate of Kylie Jane Fairburn who died intestate on 16 August 2004 ('the deceased'). The deceased is survived by her parents and by her brother, Sean Fairburn. The plaintiff in these proceedings, Peter Frederick Fairburn, is the father of the deceased. He seeks an order for letters of administration of the deceased's estate.
On 3 November 2004, the plaintiff lodged an application in the probate jurisdiction of the Supreme Court of Western Australia seeking to be granted letters of administration of the subject estate in application number 4219/04.
In December 2004, a second application for grant of letters of administration was lodged by the defendant, Glynn David Healey, in application number 4910/04 on the basis of a claimed de facto relationship with the deceased.
It emerged that in about mid 2002 the deceased had commenced some form of relationship with the defendant. The affidavits supporting the respective applications raised a contentious issue as to whether the deceased's relationship with the defendant could properly be characterised as a de facto relationship and, if so, whether the parties had lived as de facto partners for a period of at least two years immediately prior to the death of the deceased.
I pause to note that by s 6 of the Administration Act 1903 (WA) the Supreme Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in Western Australia.
It appears from following provisions of the Administration Act that where a person dies either wholly or partly intestate, the property as to which he or she dies intestate is distributed according to the entitlements set out in the table incorporated into s 14(1) of the Act. The pattern of distribution contained in the table is by no means simple. However, in certain defined circumstances the parents and the siblings of the deceased have an entitlement. By s 15 of the Act a de facto partner may have an entitlement.
I will look at these provisions in more detail later. For the time being, it is sufficient to note that, in essence, the right to administration follows interest. That is, the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant: Wills, Probate and Administration Service (WA) par 1030.11.05. The general rule, when the court is considering whether to grant an administration in the estate, is that the appointment must be one which advances the real object of administration, that is, due and proper administration of the estate: In the Goods of Loveday [1900] P 154 at 156.
It was pursuant to these provisions and principles that the respective parties had applied for letters of administration.
The registrar's ruling
A registrar of the court held that the two applications ought to be dismissed because the matter was contentious. He was of the view that the matter had to be resolved by proceedings commenced by a writ of summons. I note in passing that by O 73 r 2 of the Rules of the Supreme Court 1971 (WA) a probate action must be begun by writ issued out of the central office.
I note in passing also that the original proceedings included affidavits from each of the plaintiff and the defendant as applicants for administration. Those affidavits contained the matters required for the grant of administration set out in r 9 and r 9(B) of the Non‑Contentious Probate Rules 1967 (WA).
In addition, the original proceedings included affidavits from the deceased's mother (that is, the plaintiff's wife, Janice Fairburn) and the deceased's brother (being Sean Fairburn mentioned earlier) that consented to the plaintiff's application for administration and the waiving of any requirement for surety pursuant to s 26 of the Administration Act.
I will refer to these affidavits collectively as the 'affidavits in the initial proceedings'.
Writ of summons
On 10 March 2006, having regard to the registrar's ruling, the plaintiff filed a writ of summons. It was endorsed with a statement of claim seeking an order of the court granting letters of administration of the deceased's estate.
The plaintiff sought a grant of letters of administration pursuant to s 14 of the Administration Act on the basis that the deceased was survived by the plaintiff in circumstances where she had died intestate, was not married, was not living with any person at the time of her death, was not living in a de facto relationship within the meaning of s 15 of the Administration Act at the time of her death, had never given birth to or adopted any child and had not cohabited with the defendant for a period of two years.
At that time the defendant was represented by a firm of solicitors, namely, B W Duckham & Co. By a statement of defence and counterclaim dated 24 April 2006 the defendant contended that he and the deceased were in a de facto relationship from April 2002 until the death of the deceased two and a half years later on 16 August 2004. The defendant sought a declaration that the defendant and the deceased as at the date of death were in a de facto relationship. Further, he sought to obtain a grant of letters of administration.
The plaintiff then filed and served a defence to counterclaim to the effect that the plaintiff did not admit that the defendant and the deceased had been in a de facto relationship. Further, and in any event, the plaintiff denied that any such relationship had subsisted for two years.
Procedural steps
It was apparent from the exchange of pleadings that the court would be required to rule upon the matters in issue. This resulted in further affidavits being filed on behalf of the parties and to orders being made concerning the trial of the action. I will look at these affidavits in more detail later. Where the context permits, I will refer to these affidavits as the 'affidavits in the present proceedings'.
It then became apparent that there would be difficulty in communicating with the defendant. In due course the defendant's solicitors obtained leave to withdraw upon the basis that they did not have current instructions from him. At about the same time various orders were made providing for the trial of the action.
By orders dated 20 February 2009 Justice Templeman provided that the matter was to be listed for trial on a date to be fixed after 20 April 2009. Provision was made for the defendant to be served by way of substituted service with certain orders and directions at his mother's likely address in Victoria and at the defendant's last known address in Thailand to the intent that if no response was received certain proposed directions would not take effect and the action would be listed for trial.
On 31 March 2009 orders were made whereby the plaintiff was granted leave to effect substituted service on the defendant of all court documents, materials and correspondence relating to the proceedings, including copies of the affidavits on which the plaintiff intended to rely at trial. These documents were to be served at the address of the defendant's mother in Victoria and by ordinary prepaid post to the defendant's last known address in Thailand.
Further orders were made that the requirements for the plaintiff to file and serve or deliver to the court a certificate of readiness, a notice of entry for trial, an affidavit of service of notice of entry for trial and papers for the judge were to be waived. All evidence at the hearing was to be given by affidavits. The plaintiff's witnesses were not required to attend for cross‑examination unless seven days written notice was given by the defendant that he required to cross‑examine the deponents' nominated in his notice.
In due course the matter was listed for trial on 21 April 2009. At the commencement of the hearing counsel for the plaintiff handed up the affidavit of Elizabeth Tacey Moran sworn 21 April 2009 in order to establish that the preceding orders for substituted service had been complied with and that the necessary endeavours had been made to give the defendant notice of the hearing. This affidavit and related evidentiary materials were sufficient to satisfy me that the trial should proceed notwithstanding the non‑appearance of the defendant or counsel on his behalf. The estate was shown to have net assets of $567,251 in the event of distribution to a dependent.
Affidavit evidence
I pause to note that in order to have all the relevant materials before the court at trial an order was applied for and granted by Justice Templeman on 24 March 2009 that the parties have leave to issue any documents and affidavits obtained for the initial proceedings number A 4910/04.
By that order the plaintiff had sought to have available for the court all the material relating to the initial proceedings. However, it seems that by an oversight the plaintiff sought only an order in relation to the defendant's application for administration (action number A 4910/04) and did not include the plaintiff's own application for administration (action number A 4219/04).
In order to rectify that problem, at the commencement of the trial on Tuesday, 21 April 2009 the plaintiff sought an order to reflect the original intention; that is, an order that the plaintiff might use any documents and affidavits brought into being for the original proceedings, namely, numbers A 4910/04 and A 4219/04. In fact, it appeared that the only affidavit filed in A 4219/04 was an affidavit containing largely uncontentious material and being, in any event, an affidavit annexed to the plaintiff's further affidavit in the present proceedings of 10 March 2006 (forming part of the materials the subject of the order for substituted service). It followed that there was no prejudice to the defendant in making the order sought that the parties have leave to use any documents and affidavits obtained for the initial proceedings. I made an order in those terms.
The trial proceeded upon the basis that, having regard to the contested issues reflected in the pleadings and the affidavits filed on behalf of the respective parties, it was necessary for the court to be satisfied on the balance of probabilities that the plaintiff's claim to obtain a grant of letters of administration was justified by the evidence.
Before turning to the affidavit evidence it will be useful to review the statutory provisions and legal principles bearing upon proceedings of this kind.
Statutory provisions and legal principles
It emerges from earlier discussion that the statutory powers of the court to grant letters of administration of the estate of a deceased person are provided for under s 6 of the Administration Act. This provision confers upon the court jurisdiction to grant administration of the estate of any deceased person leaving property in Western Australia.
Section 25(1) of the Administration Act provides that the court may grant administration of the estate of a person dying intestate to a person who has attained the age of 18 years and is entitled in distribution to the intestate's estate or otherwise to any other person fit to be so entrusted if a person entitled fails to apply.
As I have indicated, the general rule is that the right to administration follows interest with the result that the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant.
In the present case I am satisfied, and so find, that the value of the subject estate at the date of the deceased's death was in excess of $75,000. Section 14 of the Administration Act sets out the scheme by which entitlements to the distribution of a deceased's estate are to be determined. It is not necessary to refer to the table in that provision in detail. It is sufficient for present purposes to note that in the case of a comparatively small estate, exceeding $75,000 in value, where the deceased died without leaving a husband or wife, and where the mother and brother waive any claim (as in the present case), the father of the deceased has the greatest entitlement. This follows from Item 6 of the table in s 14. It is pursuant to this provision that the plaintiff in the present case, as the father of the deceased, advances his claim to a grant of letters of administration, having estimated in his affidavit sworn 2 November 2004 that the value of the deceased's estate amounted to $715,426.27.
However, the plaintiff's claim in the circumstances of the present case must be considered having regard to s 15 of the Administration Act. The provision in question states that if the intestate dies leaving a de facto partner but no husband or wife, then where the de facto partner and the intestate lived as de facto partners 'for a period of at least two years immediately before the death of the deceased' the de facto partner shall be entitled, in accordance with s 14, to the intestate property to which a husband or wife of the intestate would have been entitled, had the intestate died leaving a husband or wife.
Thus, on the defendant's pleaded case, it is alleged that the defendant had the entitlement of a husband, being a greater entitlement under the table to that of the plaintiff as the father of the deceased.
I note in passing that the plaintiff might arguably still be allowed a grant of administration as a person entitled in distribution, notwithstanding that the defendant has (on the defendant's case) a greater entitlement. In other words, in the circumstances of the present case, notwithstanding that the defendant might be found to have the greater entitlement, there could arguably be factors which justified a departure from the general rule that the right to administration normally follows interest, bearing in mind that the defendant did not appear at the trial and may have left the jurisdiction.
Issues
It follows from the statutory provisions and the pleadings before me in the present case that I am required to determine, on the balance of probabilities, whether the deceased and the defendant lived as de facto partners at any stage. If such a finding be made, I am required to go further and then determine whether they lived as de facto partners for a period of at least two years immediately prior to the deceased's death on 16 August 2004.
If findings be made in favour of the defendant in regard to those issues, with the result that, prima facie, the defendant is held to be the person best qualified to obtain a grant of administration, it will nonetheless then be necessary to consider whether there are other factors justifying a departure from the defendant's prima facie entitlement to a grant of letters of administration.
It emerges, then, that the central issue is whether the defendant and the deceased lived in a de facto relationship for the two years immediately preceding the deceased's death on 16 August 2004. If such a de facto relationship existed then the defendant has the principal entitlement to the estate and would ordinarily be entitled to administration of the estate. If no such de facto relationship existed then the defendant has no entitlement and the plaintiff has the highest claim to a grant of administration.
In resolving the central issue I must have regard to s 13A of the Interpretation Act 1984 (WA) which sets out the indicia of a 'de facto relationship'. The provision reads as follows:
De facto relationship and de facto partner, references to
(1)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 2 persons who live together in a marriage‑like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a)the length of the relationship between them;
(b)whether the 2 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;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether -
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.
Let me now turn to the affidavits relied upon by the plaintiff in support of his claim, being the affidavits in the initial proceedings and the affidavits in the present proceedings. I will have regard also to the affidavits filed on behalf of the defendant.
In essence, the plaintiff contends that if there was ever a de facto relationship (which is not admitted) it did not commence until late 2002 and had terminated by mid 2004. Further, and in any event, the relationship in question cannot be characterised as a de facto relationship for a period of at least two years immediately before the death of the deceased.
The plaintiff's affidavit evidence
The plaintiff by his affidavit sworn 2 November 2004 asserted that the deceased was the daughter of he and his wife, Janice Fairburn. She was born on 31 December 1969. She married David Robert Turner on 11 March 1995 and was divorced on 2 August 2000. There were no children from this relationship.
The plaintiff asserted that the deceased died on 16 August 2004 at her residence, being 34B The Crest, Woodvale in the State of Western Australia. He said that as at the date of her death the deceased was in some form of relationship with the defendant but he did not know if the relationship was a de facto relationship.
The plaintiff said that cohabitation between the deceased and the defendant began in December 2002. The plaintiff went on to say that he made a careful search and enquiry but could not find any Will made by the deceased and was of the belief that she died intestate. This meant that the persons entitled to her estate pursuant to s 14 of the Administration Act were the plaintiff himself as her father, Janice Fairburn as her mother and Sean Andrew Fairburn as her brother. The plaintiff confirmed that if granted administration he would administer the estate according to law and, if required, provide a true account of his administration of the estate.
By a further affidavit sworn 10 March 2006 the plaintiff referred to the original proceedings and went on to assert that as a result of further enquiries he was of the view that at the date of her death the deceased was not cohabiting with the defendant and he was now not certain that their cohabitation began in December 2002. He believed from discussions with his wife and with the deceased's neighbours and friends that the deceased may have been living with the defendant from about November 2002 until a date prior to her death in 2004.
The plaintiff observed that from late 2003 his daughter's health deteriorated and on several occasions from late 2003 until the time of her death she was admitted into Perth Clinic under the care of her psychiatrist, Dr Roy Kolnick. The plaintiff had no doubt that her relationship with the defendant was the main cause of the deceased's ongoing emotional distress.
The plaintiff deposed also to the existence of certain agreements confirming that the defendant was indebted to the deceased (the copies of the relevant documents being exhibited to his affidavit). He deposed to his belief that the alleged de facto relationship did not exist at the time of death and in that regard referred to inspecting the deceased's property immediately following death and seeing no evidence of the defendant's residence at the property.
A true copy of the interim death certificate of the deceased was exhibited to the plaintiff's affidavit establishing that she died on 16 August 2004. The entry of the interim certificate in relation to cause of death is as follows:
Incomplete registration: cause of death subject to coronial investigation.
The defendant's affidavits
It will now be useful to look at certain affidavits sworn by the defendant. The matters deposed to bear upon the central issue and provide a point of reference in evaluating the affidavit evidence relied upon by the plaintiff.
The defendant said in his affidavit sworn 21 December 2004 that for a period of at least two years prior to the deceased's death, namely, from the month of June 2002 he was in a de facto relationship with the deceased within the meaning of s 15 of the Administration Act. He said that following the deceased's death on 16 August 2004 he had made a search of the deceased's possessions and made enquiries and was unable to locate a Will signed by the deceased. He confirmed that there were no children of his relationship with the deceased. He asserted that the deceased left an estate within the State of Western Australia to a gross value of $715,426.25. If granted administration he would administer the estate according to law.
In a further affidavit sworn 25 January 2005 the defendant provided further details in support of his contention that he was a de facto partner of the deceased. He said that their relationship 'commenced in April 2002 and continued to the date of death of the deceased'.
The defendant went on to say that when the relationship commenced in April 2002 they were both working at Royal Perth Hospital where he was working as a personal care attendant and the deceased was a nurse educator. They resided together after the lease of his residential premises expired some two months after they commenced dating. They jointly decided that they would move into the deceased's house at 34B The Crest, Woodvale. Prior to his moving into the Woodvale premises in June 2002 the deceased would stay at his then residence at 64 Emmerson Street, North Perth for four nights per week.
The defendant said that he and the deceased lived under the same roof at the Woodvale premises as man and wife. They discussed marriage and became engaged in February 2003. They designed the landscaping and installed the same at the Woodvale premises and painted the interior of the house. Their mutual pets comprised two dogs, a cat and a bird which were kept at the Woodvale premises. They also maintained a fish tank with fish. They installed new flowering plants in the front garden and started to strip the back room to decorate it for an intended infant planned for 2005. The defendant said that in all respects the Woodvale premises was the family home. He said they had a sexual relationship for a period of at least 2½ years.
The defendant said further that their arrangement was that the deceased controlled the finances. This involved the defendant making available to her almost all of his salary. He would retain a small amount for petrol and other requirements of a daily nature. They decided to put everything into the deceased's name because the defendant had a child support claim against him which he was unsure about and intended to dispute. The deceased gave him access to credit cards she had with the National Australia Bank and St George Bank. He had his own account with the Bendigo Bank which they used for salary for the hospital. They did not have a joint account as he did not want to be seen to have any assets for the purpose of the same being attacked under any child support claim.
The defendant said that they commenced business together in November 2003 under the name of ICG Holdings Pty Ltd of which the deceased and himself were both directors. This company was intended to operate as a landscape/design and construction company, but by reason of his knowledge of Asian products in the area it was decided that they would run an internet ordering webpage to enhance their company business. He had to travel to find stock and send home costings for purchases, packing, shipping and customs. They were jointly arranging a product list and making arrangements to implement this at the time of the deceased's death.
As to the ownership and acquisition of the Woodvale premises, the defendant said that this was in the deceased's name but was improved and the mortgage payments were maintained using their joint efforts and funds while the relationship continued. They were both directors of the ICG company. He referred also to the way in which certain assets were held. He said that he and the deceased had made a full commitment to each other in that they were living together. He said that they had an inter‑dependent financial relationship and were engaged and planned to have a child. It was intended that they would get married in Egypt. He said that their relationship was quite public and known within their circle of friends, acquaintances and associates.
Let me now turn to various affidavits adduced in support of the plaintiff's claim.
Further affidavits
Karen Joan Cornish said in an affidavit sworn 12 March 2006 that she was a close friend of the deceased and lived in Canberra as did the deceased prior to the latter moving to Western Australia in early 1999. They remained in regular contact and communicated principally by telephone and by email.
Karen Cornish said that the first she knew of the deceased being in any kind of relationship with the defendant was at the end of July 2002 when she received an email from the deceased containing a passage to the effect that she had 'started dating a guy over here that I met at work'. The email was dated 30 July 2002. The deceased went on to say that she had not told anyone else since they both wanted to keep private and work separate, at least for the moment.
Ms Cornish could not recall precisely how or when the deceased told her that she had begun living with the defendant. Her recollection was that this was sometime later in 2002, towards the end of the year. The deceased did not say she had been living in a de facto relationship with the defendant at the time she sent the email dated 30 July 2002. Karen Cornish did not believe that the deceased was living in a de facto relationship as early as August 2002.
The deceased's mother, Janice Fairburn, in an affidavit sworn 12 March 2006 referred to the deceased telling her that cohabitation had begun about November 2002. Janice Fairburn referred to circumstances concerning the deceased's mental illness from early January 2004. Mrs Fairburn's understanding was that from that time the deceased's relationship with the defendant had broken down.
Gary Noel Ford said in an affidavit sworn 13 March 2006 that he was a close personal friend of the deceased. He first became aware of her relationship with the defendant in August 2002 but according to him cohabitation did not commence until late 2002. He deposed to a breakdown in the relationship from January 2004 including concerns about debts owed by the defendant to the deceased. These concerns led to the drafting of an agreement signed by the defendant acknowledging the debts. A copy of the relevant document was exhibited to Mr Ford's affidavit.
Mr Ford deposed to the deceased's health and psychiatric issues and to the fact that the defendant showed little interest in these issues or sympathy for the deceased. Mr Ford referred also to the defendant living in alternative premises from early 2004 and to two occasions in June 2004 when the deceased stayed with Mr Ford and his wife so that the defendant could move out of the Woodvale premises.
In an affidavit sworn 10 March 2006 Gloria Joyce Hearn said that she was the deceased's immediate neighbour at the Woodvale premises. She deposed to cohabitation commencing in late 2002 and ceasing in the first half of 2004.
In a later affidavit sworn 28 January 2009 Gloria Joyce Hearn provided further details as to her observations of the deceased's and the defendant's living arrangements including reference to a cessation of cohabitation in early 2004. She said that from early 2004 she saw the defendant's car at the Woodvale premises only occasionally. He appeared to be visiting on an occasional basis and did not seem to stay very long. She never saw him out in the garden or walking the dogs.
Gloria Hearn said also that after the deceased died on 16 August 2004 the defendant appeared to move back into the Woodvale premises. She had a conversation with him at that time in which the defendant said that he had been invited to have dinner on the Monday night that the deceased died so they could talk about 'maybe getting back together' and him 'maybe moving back into the house'. According to the defendant, when he arrived at the Woodvale premises in response to the invitation, he found the deceased and called an ambulance. Nothing he said indicated to Gloria Hearn that the deceased and the defendant were together as a couple at the time the deceased died.
Ross Nigel Cushion swore two affidavits dated 14 March 2006 and 22 December 2008 respectively. He said in these affidavits that he was a former friend and housemate of the defendant. He referred to the defendant's cohabitation with the deceased and said that it commenced in late 2002.
More particularly, Mr Cushion said that he took out a lease of a flat in Emmerson Street, North Perth in approximately May 2002. This lease was in the name of Mr Cushion and ran for six months. He did not recall meeting the deceased before approximately July or August 2002. The deceased stayed overnight occasionally at the Emmerson Street flat. Not earlier than November 2002 the defendant moved out of the Emmerson Street flat to live with the deceased at the Woodvale premises. Arrangements were then made for Mr Cushion to move in with them once the lease on the flat at Emmerson Street ended on 7 November 2002.
Mr Cushion described the living arrangements at the Woodvale premises and described in detail the troubled relationship between the defendant and the deceased. His account included reference to the defendant's sexual relationship with another woman during the period of the alleged de facto relationship. He referred to statements made by the defendant prior to the deceased's death to the effect that the defendant had ceased to cohabit with the deceased and was in fact involved with another woman.
The plaintiff relied also upon affidavits sworn by Dr Roy Kolnick sworn 16 March and 7 April 2009 respectively. Dr Kolnick was the deceased's treating psychiatrist from October 2003. He deposed to her mental illness and to her admission to Perth Clinic. At the time of her admission she listed her father as her next of kin.
Dr Kolnick deposed to a breakdown in the relationship between the deceased and the defendant in the first half of 2004.
The plaintiff's submissions
It was said on behalf of the plaintiff that on the basis of the evidence before the court the only place at which the deceased and the defendant cohabited for any period was at the Woodvale premises. The earliest point at which they could have begun to cohabit at those premises was in early November 2002. This was because the defendant moved into the Emmerson Street flat with Ross Cushion for a six month tenancy beginning on 8 May 2002 and ending on 7 November 2002. The defendant resided at the Emmerson Street flat until the end of the six month lease in November 2002. He did not cohabit with the deceased during the six month lease of the Emmerson Street flat.
It was said that the deceased only ever visited the defendant at the Emmerson Street flat on an occasional basis. The defendant did not move out of the Emmerson Street flat and begin to cohabit with the deceased at the Woodvale premises until early November 2002.
On the plaintiff's case, the email exhibited to the affidavit of Karen Cornish was compelling evidence that a de facto relationship had not commenced as at 30 July 2002. It was said further that the relationship between the deceased and the defendant was tenuous. The affidavit evidence showed that there was a serious breakdown in the relationship between the deceased and the defendant in mid January 2004 at which time the deceased was admitted to the Perth Clinic for psychiatric treatment in the company of her friend Gary Ford. The Ford affidavit indicated that in the early part of 2004 the defendant then moved out of the Woodvale premises. It emerged from the affidavit of Gloria Hearn that as from early 2004 the defendant was no more than a visitor at the Woodvale premises on an occasional basis. Moreover, the Kolnick evidence indicated that the defendant was to leave the deceased's property in March 2004.
Reference was made also to evidence in the Ford affidavit that the deceased stayed with her close friends, Gary Ford and Anya Ford, for ten days in June 2004 for the purpose of allowing the defendant to remove his remaining office effects from the Woodvale premises at that time. The affidavit of Mr Cushion indicated that the defendant was living at his business at Joondalup prior to the death of the deceased and was not cohabiting with the defendant at that time.
Conclusion
I am of the view, having regard to the evidentiary materials and the plaintiff's submissions, that as at 16 August 2002 (being a date two years prior to the death of the deceased) the deceased and the defendant had commenced an intimate relationship but were not cohabiting. At that time the deceased was living at the Woodvale premises owned by her; the defendant was living with Mr Cushion at the Emmerson Street flat. A sexual relationship had commenced, with the result that the parties stayed overnight occasionally at their respective residences, but there is no independent evidence to corroborate or support the defendant's assertion (which, in any event, is in the nature of a conclusion), that they had entered into a de facto relationship prior to 16 August 2002.
In my view, cohabitation did not commence until late October or early November 2002 at a time when the lease on the Emmerson Street flat, occupied by Mr Cushion and the defendant, was about to expire. This is clear from the evidence of Mr Cushion. The evidence of the other witnesses is generally consistent with such a view, including the evidence of the defendant himself. At par 2(b)(i) of his affidavit sworn 25 January 2005 the defendant said that 'we resided together after the lease on my residential premises expired'. Having regard to all the evidence, this could only be a reference to the expiry of the Emmerson Street lease on or about 7 November 2002.
I am of the view that cohabitation had ceased by the end of March 2004 as a consequence of health and psychiatric issues that were troubling the deceased. I am of the view that thereafter, from the end of March to the date of the deceased's death on 16 August 2004, the defendant was a visitor to the deceased's Woodvale premises upon an occasional basis only. In making that finding I give weight to the Ford and Hearn evidence, and to the plaintiff's evidence concerning the state of the Woodvale premises.
It follows from these findings that, in my view, the deceased and the defendant did not cohabit for a period of two years immediately prior to the death of the deceased on 16 August 2004 whether as 'de facto partners' within the meaning of the Act or otherwise.
More particularly, having regard to the indicia specified in s 13A of the Interpretation Act I am unable to find that the parties were living in a marriage‑like relationship for a period of two years prior to the death of the deceased. It is questionable, having regard to the troubled nature of the relationship, as to whether at any stage the relationship conformed to the criteria comprising a de facto relationship as enunciated in the statutory provision. However, to my mind, it is not necessary to make a finding in that regard because it is clear that there was not a de facto relationship between the parties for two years immediately prior to the death of the deceased.
It follows from these findings that the defendant does not have an entitlement to distribution as a de facto partner in respect of the deceased's estate. The consequence is that the party entitled to be granted letters of administration is the plaintiff as the surviving father of the deceased having regard to the facts and matters referred to in earlier discussion including the consents provided by the deceased's mother and brother to the estate being administered by the plaintiff.
Accordingly, I will make orders of the kind contended for by the plaintiff including an order that the counterclaim of the defendant is to be dismissed. I will hear from the parties as to the precise form of the orders and directions to be made including orders as to the costs of these proceedings. Costs are in the discretion of the court, but it appears from Wills Probate and Administration Service (WA) at par 20,400 that in a case of this kind the proper exercise of that discretion will normally require that the unsuccessful party (in this case the defendant) will be ordered to pay the other party's costs.
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