In the Estate of Clarke - [2023] NTSC 8

CITATION:In the Estate of Clarke [2023] NTSC 8
PARTIES:IN THE ESTATE OF THE LATE GUY MARSHALL CLARKE
ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-01508-SC
DELIVERED ON:  8 February 2023
HEARING DATE:  On the papers
JUDGMENT OF:  Barr J
CATCHWORDS:

SUCCESSION – Intestate estate – Application for grant of administration by mother of deceased – Assigned guardian of only child of deceased – Referral by the Registrar of Probate pursuant to s 17(2)(c) Administration and Probate Act 1969 (NT) – Applicant proposes distribution of estate on the basis that the deceased was survived by a de facto partner – Evidence does not establish the continuation of de facto relationship to the time of death – Administration granted to applicant – Proposed distribution not approved
Administration and Probate Act 1969 (NT), s 22; s 66; Schedule 6, Part II(b); Schedule 6, Part IV, Item 2

REPRESENTATION:
Solicitors:
Applicant:Maleys
Respondent:  Not applicable
Judgment category classification:    B
Judgment ID Number:  Bar 2302
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
PROBATE JURISDICTION
AT DARWIN
In the Estate of Clarke [2023] NTSC 8

No. 2022-01508-SC

IN THE ESTATE OF THE LATE
GUY MARSHALL CLARKE
ON REFERENCE from the
Registrar of the Supreme
Court of the Northern
Territory

CORAM: Barr J
REASONS FOR DECISION
(Delivered 8 February 2023)

This matter comes before a single judge by Registrar’s reference dated 6 January 2023, made pursuant to s 17(2)(c) Administration and Probate Act 1969. The issue is whether the Registrar should issue administration of the estate of the deceased to the applicant, Sharlene May Clarke, who is the deceased’s mother.
Guy Marshall Clarke (“the deceased”) was born on 12 October 1990 and died, aged 31, on 22 November 2021. He did not leave a will.[1]
The deceased had entered into a de facto relationship with Jessica Longe in early July 2019.[2] The parties lived together and travelled together. There was one child of the relationship, Zara May Clarke, who was born on 2 July 2021.
The Registrar made an order on 6 January 2023 assigning the applicant as the guardian of Zara May Clarke for the purpose of applying for a grant of administration. The Registrar was satisfied that the applicant was an appropriate and fit person to act as guardian.[3]
There appears to be very substantial goodwill between the applicant and Jessica Longe, and I note that the applicant considers that Ms Longe was the de facto partner of the deceased. In one of her affidavits she deposed, “The deceased died in a de facto relationship with one child”.[4] On the basis of that understanding, the applicant acknowledged Ms Longe as the surviving de facto partner of the deceased in the affidavit of assets and liabilities,[5] and proposed a distribution of the estate to reflect the manner of distribution specified in Schedule 6, Part II (b)(ii) Administration and Probate Act 1969. Such a distribution would result in Ms Longe receiving an amount of $426,887, leaving the residual amount of $42,087 to the child.
If Ms Longe were not the de facto partner of the deceased at the time of his death, then Zara May Clarke, the sole issue of the deceased, would be entitled to the whole of the intestate estate pursuant to Schedule 6 Part IV, Item 1 Administration and Probate Act 1969.
Thus, the existence (or otherwise) of a de facto relationship continuing to the time of death is very relevant to distribution of the intestate estate.
It appears that there were significant difficulties in the deceased’s relationship with Ms Longe in October 2021, some 3 months after the birth of their child. Ms Longe deposed as follows: [6]
On about 19 October 2021, Guy and I ended our relationship however we remained living together at his parents’ house located [address] Girraween, in the Northern Territory of Australia.
The use of the words “ended our relationship” makes it tolerably clear that, as at 24 October 2022, Ms Longe considered that her relationship with the deceased had come to an end approximately one month before he died.
The difficulties between the deceased and Ms Longe were not such that the parties did not continue to live together under the same roof. In a subsequent affidavit, Ms Longe deposed as follows:[7]
.... around 19 October 2021, my de facto partner Guy Marshall Clarke and I had an argument and a brief relationship breakdown.
After our argument on 19 October 2021 I recall:
a.We continued to live together under the same roof at [address], Marrakai, in the Northern Territory of Australia;
b.We continued to eat meals together in the home;
c.We continued to share financial responsibilities; for example, I continued to buy groceries for the home which Guy had the benefit of;
d.We continued to spend the weekend together and would sometimes go out for dinner together as a family with our daughter Zara.
On multiple occasions, we had discussed reconciling our differences and continuing our relationship.
Sadly, however, on the 22 November 2021, Guy passed away.
The period of ‘continuing family relations’ (my expression) between the parties described by Ms Longe lasted just over a month, from 19 October 2021 to 22 November 2021. The statement that the parties had “a brief relationship breakdown” could be misleading, because, based on Miss Longe’s earlier affidavit, the relationship had ended. The relationship breakdown was “brief” because the deceased died very shortly after the relationship ended. Significantly, the parties did not resume the relationship, notwithstanding discussion that that might happen.
The meaning of the term “de facto partner” is obtained by reference to the Interpretation Act 1978, and the De Facto Relationships Act 1991. The Interpretation Act 1978, s 19A (3), provides that “In any Act, de facto partner and de facto relationship have the meanings in section 3(1) of the De Facto Relationships Act.” Section 3(1) De Facto Relationships Act 1991 defines “de facto partner, of a person” to mean “a person who is in a de facto relationship with the person”. The meaning of “de facto relationship” is contained in s 3A of the Act, which reads as follows:
3ADe facto relationships
(1) For this Act, 2 persons are in a de facto relationship if they are not married but have a marriage-like relationship.
(2)To determine whether 2 persons are in a de facto relationship, all the circumstances of their relationship must be taken into account, including such of the following matters as are relevant in the circumstances of the particular case:
(a) the duration of the relationship;
(b)the nature and extent of common residence;
(c)whether or not a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of property;
(f)the degree of mutual commitment to a shared life;
(g)the care and support of children;
(h)the performance of household duties;
(i)the reputation and public aspects of their relationship.
It is not necessary that all of the above listed circumstances be established in favour of a person claiming to be in a de facto relationship. Nor is it necessary that a person be in a de facto relationship for any minimum period of time in order to be the de facto partner of another person. The requirement under s 16(1) De Facto Relationships Act 1991 that de facto partners must have lived together in a de facto relationship for a period of not less than two years (which is relevant to the court’s jurisdiction to make orders for adjustment of interests in property) does not apply to establishing the existence of a de facto relationship at law. However, for the purposes of Schedule 6, Part II (b) Administration and Probate Act 1969, a de facto partner must have been the de facto partner of the intestate deceased for a continuous period of not less than 2 years immediately preceding the death.
The matters deposed to by Ms Longe in her second affidavit are indicia of a de facto relationship. However, they cannot determine the issue, because any inference from those matters stands opposed to her clear evidence that the relationship had ended and that, notwithstanding discussion about resuming (“continuing”) the relationship, there had been no such resumption before the deceased died.
I am not satisfied on the balance of probabilities that Ms Longe was the de facto partner of the deceased as at the date of his death. I am therefore unable to approve the proposed distribution in favour of Ms Longe pursuant to Schedule 6, Part II (b) Administration and Probate Act 1969.
My conclusion in [15] is not a finding for all purposes that Ms Longe was not a de facto partner of the deceased at the time of his death. I am simply not satisfied on the balance of probabilities that she was the de facto partner of the deceased at the time of his death. As a result, I am unable to approve the proposed distribution. Moreover, Ms Longe is not a party in proceedings before me and it would be inappropriate to make or purport to make a finding which might significantly affect her.
I propose to make an order for the grant of administration to the applicant. The distribution of the estate would then depend upon whether Ms Longe wishes to press a claim that she was the de facto partner of the deceased to the time of his death (and hence entitled under Schedule 6, Part II (b) Administration and Probate Act 1969); alternatively a claim pursuant to s 7(1)(a) Family Provision Act 1970 as the de facto partner of the deceased, or a claim pursuant to s 7(1)(b) Family Provision Act 1970 as the former de facto partner of the deceased.
Pursuant to s14(1), s 22(1)(d) and s 17(3) Administration and Probate Act 1969, I make an order for the grant of administration of the estate of Guy Marshall Clarke, deceased, to the applicant.

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[1]See affidavit of publication and search promised 27 May 2022, par 3.

[2]Affidavit Jessica Longe promised 24 October 2020.

[3] Supreme Court Rules, r 88.05(1)(d), r 88.30. The relevant evidence was contained in the applicant's affidavit promised 22 December 2022.

[4] Affidavit of the applicant promised 27 May 2022, par 6.

[5]Affidavit of assets and liabilities promised 27 May 2022.

[6] Affidavit Jessica Longe promised 24 October 2022, par 6.

[7] Affidavit Jessica Long promised 22 December 2022.