Jasarevic v Nesovanovic
[2017] VSC 267
•5 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2016 05458
IN THE MATTER of the Estate of NAIL HAMIDOVIC (Deceased)
| JASMIN JASAREVIC | Plaintiff |
| v | |
| RADA NESOVANOVIC | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2-5 May 2017 |
DATE OF JUDGMENT: | 5 June 2017 |
CASE MAY BE CITED AS: | Jasarevic v Nesovanovic |
MEDIUM NEUTRAL CITATION: | [2017] VSC 267 First Revision, 5 June 2017, [137] [138] [141] |
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PROBATE – Intestacy – De facto relationship – s 51(1) Administration and Probate Act 1958 (Vic) – Applicant former domestic partner of deceased – Nature of relationship – Factors indicating a domestic relationship – Considerations to be taken into account under s 35(2) Relationships Act 2008 (Vic) – Revocation of letters of administration.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Naidu | Nathan Dorevitch Lawyers |
| For the Defendant | Mr T. Mah | Anuja Baker Legal Services |
HER HONOUR:
This is an application made on summons filed 8 June 2016 by the defendant, Rada Nesovanovic, for revocation of letters of administration. The plaintiff, Jasmin Jasarevic, is the nephew of Nail Hamidovic, who died intestate on 14 January 2016. Under the laws of intestacy, Jasmin is the sole beneficiary of Nail’s estate. Rada claims to be Nail’s domestic partner at the time of his death.
In order to avoid confusion, I will use first names in this judgment.
Nail had no children and separated from his former wife, Enesa Hamidovic, in 1984. Nail and Enesa had not formally divorced. Enesa died in 2008. Letters of administration of Nail’s estate were granted to Jasmin on 18 April 2016.
The three issues to be determined in this case are:
(i) at the date of Nail’s death on 14 January 2016, was Rada his partner within the meaning of s 51(1) of the Administration and Probate Act 1958 (Vic) ('the Act');
(ii) should the letters of administration granted to Jasmin on 18 April 2016 be revoked; and
(iii) what orders should be made in relation to costs?
This is a small estate. The inventory of assets and liabilities shows that Nail’s estate comprises a property at Unit 1, 65 Elizabeth Street in Richmond (‘the Richmond property’) valued at approximately $350,000.[1] The parties have estimated that their combined legal costs are approximately $120,000 being costs incurred by the parties up to and including the trial of the proceeding.
[1]Inventory of Assets and Liabilities filed on 6 April 2016.
Evidence was given viva voce and by affidavit. Rada gave viva voce evidence over two full days through an interpreter and relies on the viva voce evidence of a family friend (Jelica Skoric), her eldest son (Veljan Naumovski) and Rada and Nail’s general practitioner (Dr Zoltan Vilagosh). Rada also relies on the following affidavits in support of her claim:
(a) Rada Nesovanovic, sworn 7 June 2016;
(b) Veljan Naumovski, sworn 18 July 2016;
(c) Anka Vukicevic, affirmed 28 July 2016;
(d) Dr Zoltan Vilagosh, sworn 13 April 2017; and
(e) Anuja Devi Baker, affirmed 8 June 2016.
Jasmin gave viva voce evidence and relies on the following affidavits in opposition:
(a) Maria Danko, sworn 29 October 2016; and
(b) Stanko Radonic, sworn 29 October 2016.
Legislative framework
The basis for Rada’s application is s 51(1) of the Act, which states that ‘[t]he partner of an intestate who does not leave any child … is entitled to the intestate's residuary estate’.
Under s 3, the definition of 'partner' is the person’s ‘spouse or domestic partner’. The latter is defined, in turn, to include an 'unregistered domestic partner'. According to s 3, an unregistered domestic partner is a person who:
although not married to the person—
(a) was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and
(b) either—
(i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or
(ii) is the parent of a child of the person, being a child who was under 18 years of age at the time of the person's death.
Rada bears the onus of proving that she meets this definition of ‘unregistered domestic partner’ at the time of Nail’s death.
In determining whether Rada was Nail’s domestic partner, s 3(3) of the Act requires the Court to take into account all the circumstances of their relationship, including any one or more of the following matters in s 35(2) of the Relationships Act 2008 (Vic) (‘the Relationships Act’), as relevant:
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f) the ownership, use and acquisition of property;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
The applicable legal principles
In Dow v Hoskins,[2] Cummins J said that the determination of whether a person was living with the deceased should not be construed on ‘narrow, formal, pedantic or merely geographical criteria but should be considered taking into account the human reality of the personal, emotional and cultural complex’.[3] His Honour took the view that he should approach the matter in that ‘broader context’ and that case law indicated that ‘the determining factors are the length and circumstances of the relationship in each case’.[4]
[2][2003] VSC 206.
[3]Ibid [32].
[4]Ibid.
In Re Estate of Sigg (dec'd),[5] Pagone J accepted these observations and further stated:
it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities. That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove. That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the provisions of s 51 should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing between legally married couples.[6]
[5][2009] VSC 47.
[6]Ibid [7].
Ownership of property is a relevant factor, but it is not decisive. In Sinclair v Forsyth,[7] Harper J found that despite maintaining separate households, a relationship of deep and intimate affection existed between the applicant and the deceased, and the applicant was a person for whom the deceased had responsibility to make provision out of his estate.
[7][2008] VSC 250.
In Chan v Mazurkiewicz,[8] Le Miere J of the Supreme Court of Western Australia stated that:
Marriage relationships are many and varied. Australia is culturally diverse. The characteristics of marriage vary from culture to culture and can change over time. Residing together is a characteristic of most marriage relationships but some spouses have an intimate relationship but live at separate addresses usually because of constraining circumstances such as working at different locations. For some couples, sexual relations are very important. For others, that aspect may be less important than companionship. In some marriages there is a complete blending of finances and property. In others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. Some spouses have children, others do not. Some spouses do everything together. Others place importance on independence.[9]
[8][2015] WASC 432.
[9]Ibid [10].
In Chan, his Honour rejected the proposition that, once established, a de facto relationship is presumed to continue unless and until it is established that there has been a severance of the relationship.[10] In support of this proposition, his Honour cited Murphy JA in H v P:[11]
Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than [the other party] being required to prove the negatives.
[10]Ibid [64]–[65].
[11][2011] WASCA 78, [58]; see also, S v B [2005] 1 Qd R 537, [48]–[50].
Revocation of letters of administration
A grant of probate or a grant of letters of administration is more than just a Court order: it is proof of the validity of the deceased’s will.[12] The Court in its probate jurisdiction has the power to revoke a grant, with such power exercised at the discretion of the Court having regard to all relevant circumstances in the particular case.[13] The revocation of a grant of representation is equivalent to setting aside a Court order.[14] The power to revoke a grant is not exercised as of course or as of right.
[12]Whicker v Hume [1858] EngR 991, 7 HLC 124; Ex parte Brown (1869) 8 SCR 332; Blake v Knight (1843) 3 Curt 547, 561, 564; (1843) 163 ER 821, 826; Gornell v Masen (1887) 12 PD 142; Palin v Ponting [1930] P 185, 188.
[13]In the Will of Lamont (1881) 7 VLR (IP & M) 86; In re Goode (1890) 11 NSWLR (Eq) 281; In re Gillard [1949] VLR 378; Re Egan [1963] VR 318.
[14]In the Will of Lamont (1881) 7 VLR (IP & M) 86, 93, 98. See also, Estate Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53] (Lindsay J).
Probate litigation is interest litigation and an applicant for revocation of a grant must be able to show that his, her or its rights will, or may, be affected by the outcome of the proceedings.[15] An interest sufficient to entitle a person to oppose a grant of probate or letters of administration is sufficient to entitle a person to apply for revocation of a grant of probate or letters of administration.[16]
[15]Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [212] – [216].
[16]In re Gillard [1949] VLR 378, 38; Re Egan [1963] VR 318; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014); Van Wyk v Albon [2011] VSC 120 (24 March 2011).
An applicant seeking to revoke a grant must show that he, she or it has:
a) standing to make such an application;
b) a reasonable explanation for the delay in bringing the application to revoke the grant; and
c) a prima facie case to challenge the grant of probate or letters of administration.[17]
[17]See, eg, Offley v Best (1667) 83 ER 361; In re Gillard [1949] VLR 378, 381; Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VR 318, 320; Van Wyk v Albon [2011] VSC 120 (24 March 2011); Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [285] –[288]; Swalwell v Swalwell (Needham J, unreported, 15 July 1988) cited in Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [310]; Estate Cockell; Cole v Paisely [2016] NSWSC 349 (4 April 2016) [53].
Accordingly, in this case, Rada must explain her failure to lodge a caveat and thereby prevent the grant of probate, and establish a prima facie case. Rada must satisfy that she has standing and a prima facie case to challenge the grant to Jasmin of letters of administration.
It is accepted that revocation is a discretionary remedy.[18]
[18]Ibid [79].
Although the rules make no provision for this, Byrne J found in Vosahlo v Kantor[19] that an applicant ‘should also seek probate of the last will or administration of the estate so that there is no hiatus in the administration’.[20] Rada has applied for letters of administration.[21]
[19][2003] VSC 81.
[20]Ibid [6].
[21]Parties’ Joint Submissions on the Relevant Law, [13].
I will deal with the issue of Rada’s delay in bringing the application to revoke the grant at the outset. Rada relies on the affidavit of her solicitor, Anuja Devi Baker affirmed 8 June 2016 (Exhibit D27). Her evidence was not contested. Ms Baker deposes to the following in relation to Rada’s failure to lodge a caveat and prevent the grant of letters of administration:
(a) Ms Baker received instructions to act on Rada’s behalf on 22 January 2016;
(b) Rada’s instructions were that she was Nail’s domestic partner, Nail had not left a will and that she wanted Ms Baker to obtain a grant for letters of administration;
(c) on 25 January 2016, Ms Baker posted an advertisement on the Supreme Court website citing Rada’s intention to apply to the Court for a grant of administration;
(d) Ms Baker conferred with Rada on 4 February 2016 to obtain further instructions;
(e) on 15 February 2016, Ms Baker received a letter from Jasmin’s solicitor dated 10 February 2016 enclosing a caveat prohibiting the grant of letters of administration to Rada on the grounds that she was not Nail’s domestic partner as claimed;
(f) in March 2016, Ms Baker became aware that Rada did not possess a copy of Nail’s death certificate and steps were taken to obtain it. A copy was subsequently obtained on 31 May 2016;
(g) on 2 June 2016, Ms Baker wrote to Jasmin’s solicitor informing him that she was to proceed on Rada’s behalf with the application for letters of administration and requested that Jasmin not interfere with the Richmond property;
(h) on 3 June 2016, Ms Baker received an email from Jasmin’s solicitor, stating that Jasmin had obtained letters of administration in this matter;
(i) Ms Baker deposes that neither Jasmin nor Jasmin’s solicitor served a copy of the application for a grant of letters of administration on her office or on Rada personally;
(j) on 6 June 2016, Ms Baker obtained a copy of the documents filed by Jasmin for letters of administration, which revealed amongst other things that Jasmin had published an advertisement on the Supreme Court website on 7 March 2016;
(k) the advertisement posted on the Court’s Probate Online Advertising System published Nail’s surname as ‘Nail’ not ‘Hamidovic’. Ms Baker deposes that her fortnightly monitoring of the Probate Online Advertising System for any advertisement in this matter was done by entering Nail’s surname, with the search results being only the advertisement she had posted on Rada’s behalf on 25 January 2016; and
(l) Ms Baker subsequently became aware that Jasmin became registered as Nail’s Legal Personal Representative for the Richmond property on 12 May 2016.
It is clear from Ms Baker’s uncontested evidence that Rada took all steps in a timely manner to prevent the grant of administration to Jasmin. I will now turn to the evidence relevant to whether Rada has standing as Nail’s de facto partner and her claim generally.
Evidence
The principal evidentiary issue in this case is the nature, extent and length of Rada’s relationship with Nail and whether the relationship was a genuine domestic relationship for the purposes of the Act.
Nail left no statement about any of the above matters or any documents from which relevant inferences can be drawn. It is necessary to approach Rada’s evidence with caution. Rada is the only witness to aspects of her relationship with Nail.
Before examining the evidence given in this case by all of the witnesses, including the affidavit evidence, I make the following observations in relation to Rada’s credibility as a witness.
Rada gave her evidence in a straightforward fashion. To my observation, she attempted to give an honest and accurate account of events as she recalled them. It was apparent during Rada’s evidence that in order to give detailed evidence of her relationship with Nail over a 25 year period, she had to do a lot of work to reconstruct and recollect events that occurred as best as she was able. It was not suggested that Rada had a memory for dates and events that was superior to that which might have been expected.
Rada is 85 years old, she was educated to a primary school level in the former Yugoslavia, migrated to Australia in 1971 and has limited English. She does not read or write in English, gave her evidence via an interpreter and was in the witness box for a significant period of time. Having made those observations, I do not consider that Rada had difficulty recollecting significant matters or that her memory was in any way affected by her age or the time she was required to be in the witness box.
Without file notes, diary entries, emails or the like in the relevant periods, which in this case traversed some 25 years, Rada was able to give detailed evidence of various conversations, events, and living arrangements. Her evidence on some issues was incomplete and, on some matters, inconsistent. I do not mean to be critical about this. It was an inevitable consequence of the fact that this proceeding required her to give evidence of many conversations and details that occurred over a long period of time in circumstances where, as her counsel submitted, she never thought she would need to recollect such matters.
In the end, the true contest was largely between Rada and Jasmin’s evidence.
It was submitted by counsel for Jasmin that Rada did not give credible evidence. In particular, attention was drawn to why she and Nail had maintained two households.[22] Mr Naidu, counsel for Jasmin, noted that Rada’s evidence was inconsistent in relation to the commencement of their relationship and the period in which she lived with Nail on a permanent basis, commencing at a property in Brunswick West. Mr Naidu submitted that in cross-examination, Rada was wrong as to the dates she moved to the Brunswick West property. It was submitted that in evidence in chief Rada said she moved to the Brunswick West property in 1998 and the reason why Nail moved in permanently at this time was because that was when Jasmin migrated from Bosnia to Australia and he and his family moved into the Richmond property for three months.
[22]T195, LL1-3.
In cross-examination it was put to Rada that she did not move into the Brunswick West property in 1998 but at some later time, well after Jasmin had migrated to Australia. It was also put to Rada that she remained at the Brunswick West property until 2005 when she moved to the North Fitzroy property.
Exhibit P1 is Rada’s application for public housing dated 4 July 2003. It records the following: that her address at the time was 21/508 Moreland Road, Brunswick West; that she had previously been a resident with the Office of Housing at 32/20 Elgin Street, Carlton (‘the Carlton property’); that she left the Carlton property because she was sick and most of the time the lift was not operating; that Rebecca Naumovski, her granddaughter, would be living with her; and that she wanted to live in the inner metro east.
Exhibit P1 confirms that as at 4 July 2003 Rada was living at the Brunswick West property. However, the exhibit does not displace Rada’s evidence that she was living in the Brunswick West property in September 1998 or that Nail was living with her on a permanent basis at the Brunswick West property.
Exhibit P2 is Rada’s residential tenancy agreement with the Director of Housing in relation to the North Fitzroy property dated 4 July 2005.
In her viva voce evidence, Rada said that she and Nail commenced living together permanently when she moved to the Brunswick West property. She could not recall how long she lived in the Brunswick West property but thought it was only for a short while, less than a year.
It was submitted that Rada was not a witness of credit and that I should not accept her evidence on the key issue of when she commenced living with Nail on a permanent basis for the following reasons: Exhibits P1 and P2 confirm that Rada was wrong about the time she lived in the Brunswick West property; her evidence about when she moved to the Brunswick West property was inaccurate; the first time she mentioned that her granddaughter Rebecca had lived with her at the Brunswick West property was in cross examination; she had never mentioned the fact that she had lived in the Brunswick West property in an earlier affidavit; and in her evidence in chief she said that the Brunswick West property had one bedroom when in fact, as the evidence shows, it had two bedrooms.[23]
[23]T85, LL27-28.
There were aspects of Rada’s evidence, such as how long she lived at the Brunswick West property, that were not accurate and she did not mention that Rebecca lived with her until cross examination. While some details were incorrect, I consider on the whole that Rada’s evidence should be accepted. Rada did not resile in cross-examination from the fact that she lived in the Brunswick West property. Exhibit P1 and a postcard from Jasmin’s family addressed to the Brunswick West property confirms that she lived in the Brunswick West property. Interestingly, Jasmin denied any knowledge of Rada ever living at the Brunswick West property.[24]
[24]T181, LL19-27;
Rada consistently maintained that the reason for moving from the Carlton property to the Brunswick West property was that the Carlton property was small, she lived on the third floor and the lifts often did not work.[25] Rada was clear in her reasons why she left the Brunswick West property. In her evidence in chief and in cross-examination,[26] she described the Brunswick West property as having had a cockroach infestation and that was when she and Nail decided it was time to move out. It is true that Rada was not precise with her dates in relation to the Brunswick West property but she maintained, and I accept, that Nail moved in with her to the Brunswick West property and that was the time at which joint living arrangements became permanent. I note also that Jasmin’s evidence confirmed that Nail moved in with Rada for three months at the time he migrated to Australia. What is not clear is precisely when Rada moved to the Brunswick West property, but it is likely that it was at or about the time Jasmin migrated to Australia (September 1998), and that she and Nail commenced living permanently together at that time.
[25]T85, LL12-15; T33, LL14-16.
[26]T36, LL21-25; T103, LL8-10.
As I have said, despite some inaccuracies and inconsistencies in her evidence, I consider Rada to be a credible witness. I note that even though Rada could not recall precise dates, she was clear on events which occurred and used those events to help her reconstruct dates. For example, she could not recall precisely when Nail had a heart attack but knew it was when they were on a trip with the Yugoslavian Social Club to Bright and that he was taken to Wangaratta hospital by ambulance. She recalled that Nail moved in with her at the time when Jasmin arrived in Australia.
In the end, there was no real challenge to Rada’s evidence. The only contest, if any, was largely between Jasmin and Rada. When distilled, Jasmin’s evidence was that he did not know much about the relationship between Nail and Rada. He had little contact with Nail or Rada from 2002 when he purchased his family home in Narre Warren South. His evidence was that he knew that Nail had moved in with Rada two weeks before his death in January 2016. He went to see Nail, not having seen him since 2013, and discovered the phone at the Richmond property had been disconnected. No-one answered the door when Jasmin arrived. He realised that Nail must have been staying with Rada because they are ‘good friends’.[27] He said that Nail had introduced Rada as his lady friend, that he moved in with her so that Jasmin could live in the Richmond property with his wife and that Nail and Rada were ‘great friends’. He was shown Exhibit D24, a postcard sent by Jasmin’s wife and son to Rada and Nail, dated 31 May 2004. Jasmin disavowed any knowledge of the postcard and simply said that it was from his wife and son. He was then shown a Christmas card, Exhibit D5, again from the Jasarevic family. Once again he disavowed any knowledge of the Christmas card and his evidence was that it was his wife who sent it. In essence, his evidence in cross-examination was that he knew very little or nothing about Rada and Nail’s relationship and that it was his wife who wrote the cards and who had all the details. Jasmin’s wife did not give evidence.
[27]T170, LL30-31.
Jasmin was asked in cross-examination whether he spoke to his wife about Nail and Rada’s relationship in the time since this proceeding was issued. His answer was ‘No. We knew that she was great friend from day one, we saw it, and therefore my wife had great respect for Rada.’[28] He was asked if Rada was always invited when they invited Nail out. His answer was, ‘Yes. Not always. No.’[29] He subsequently answered the same question in cross-examination with ‘not always’ and when asked, ‘Are you aware of your son and your wife meeting with Rada without you?’, his answer was, ‘No. I don’t know.’[30]
[28]T185, LL20-22.
[29]T178, L18.
[30]T178, LL27-29.
I find it most unlikely that Jasmin would not have spoken to his wife about the relationship from the time this proceeding was issued or in the course of the trial. I note that his wife was in court for the entire duration of the trial. On the whole, I found Jasmin to be an unconvincing witness, who really had little or no knowledge of the relationship between Nail and Rada. He tried conveniently to water down the nature of the relationship into one of just friends, despite his own observations and the objective indicia suggesting this was much more than just a friendship. I do not accept his evidence that Rada was no more than Nail’s ‘great lady friend’. The postcard, the Christmas card, the invites to their respective homes, the fact that Nail moved in with Rada for three months so that the Jasarevic family could use his Richmond property, and the fact that Jasmin thought only to look to Rada’s home when Nail was not at the Richmond property are all factors weighing against Jasmin’s evidence.
I consider that, on the whole, Rada’s evidence should be preferred in the event of a dispute on a given issue. I do not consider Jasmin to have been a reliable witness who failed to recall, or was inaccurate concerning, some facts. I consider that he deliberately attempted to diminish the nature and character of the relationship between Nail and Rada.
Rada Nesovanovic’s evidence
As already noted, Rada is a pensioner and is 85 years of age. She was previously married but separated from her husband who subsequently died. She has three sons.
Rada first met Nail in or about 1990.[31] Rada said that initially she was living at the Carlton property and that Nail was living in the Richmond property. She said that they would visit each other nearly every day and that soon after ‘we started sleeping in the same bed like a wife and husband do’.[32] In addition to visiting one another, Rada would do Nail’s laundry because he did not have a laundry at his place. Nail would often stay at Rada’s house overnight and she would also occasionally stay at Nail’s Richmond house overnight. She said that they slept at one another’s house nearly every day and that they would go shopping together, cook dinner together and go out together.[33] They kept separate bank accounts. Nail did not pay any of Rada’s expenses in this period; on occasion, Rada would assist Nail as he had more outgoings. Her evidence was that she once paid $300 for his electricity bill.[34] She said that they paid for their groceries together and that her family knew of Nail from the very first day he started coming to her house.[35] She said that he loved her grandchildren and that he had a good relationship with her children.
[31]T14, L23.
[32]T16, LL5-6.
[33]T16, LL18-21.
[34]T18, L10.
[35]T18, L17.
Rada gave evidence about the Yugoslavian Social Club that they attended weekly. They celebrated birthdays at the club. The club organised picnics and trips. Rada would cook when she was at the club and she and Nail would go to the club together at about 7.00am and leave at approximately 5.00pm.[36] She said that they did not try to conceal that they were a couple while at the club; her evidence was that ‘I behaved as if he was my husband, lawful husband’.[37] If she was not busy in the kitchen she would come out and sit next to him and they would play games together. She said that they were happy, and they laughed like other people.[38]
[36]T21, LL14-18.
[37]T21, LL23-24.
[38]T21, LL25-31.
Rada said that in the first few years she and Nail did not have any health problems and they would occasionally go and see their local general practitioner, Dr Vilagosh, together and would consult with him together.[39]
[39]T22, LL23-28.
Rada’s evidence was that Nail was married to Enesa and that Nail would visit her, in particular, after she had had an accident. Rada’s evidence was that Enesa had a fall and injured herself and that Nail went to stay with her. She thought it was sometime after 1995,[40] however she could not be sure about the date.[41] She said that Enesa was sick, needed assistance and that she approved of that. She said that Nail stayed at Enesa’s house in Northcote.
[40]T24, L24.
[41]T19, LL21-22.
At this time Rada went back to Yugoslavia to visit family. She said that when she returned, Nail separated from Enesa. Nail’s friend Stanko brought him to Rada’s place and ‘ever since that day we were together, and never split after that’.[42] She said that the separation was for approximately three months. She said that when Nail returned he apologised for going back to help Enesa.[43] Rada was asked in evidence in chief whether Nail said why he came back and her evidence was: ‘he did say, and how shall I put that in words now. He said, “you’ve always existed for me, although I wasn’t here”’.[44] At this time she was still living in the Carlton property.
[42]T23, LL16-17.
[43]T24, LL5-6.
[44]T24, LL9-10.
After Nail returned in or about 1995 they spent every night together in the same way that they did previously. That is, spending some nights at her house and some at his house in Richmond.[45] Rada said that when Nail stayed at her house they would sleep in the same bed as she only had one bed and it was the same situation in Nail’s Richmond property. Rada was asked, ‘When you two sleep in the same room overnight were you sleeping together as husband and wife?’ and her answer was, ‘Yes we did’. She was asked in evidence in chief, ‘I don’t mean to embarrass you Rada but how often would you sleep together like that?’. Rada answered, ‘Whenever we were together like a wife and a husband, no more no less’.[46] She said that after Nail returned in 1995 she did all of the housework at both her house and his place. She said that nothing changed in their living arrangements: they bought groceries together, Nail was responsible for his expenses in relation to the Richmond property but Rada would help him if necessary, they continued to attend the Yugoslavian Social Club and go on trips. They paid for those trips together and the length of the trips varied from two to four nights. On those trips they slept together in the same room.
[45]T24, LL30-31; T25, LL2-7.
[46]T25, LL13-18.
Rada could not recall how long she lived at the Carlton property. In evidence in chief Rada said that she left the Carlton property at the beginning of 2000 but could not recall.[47] Her evidence was that she had left the Carlton property because she developed a fear of elevators and escalators and wanted to apply for ground floor accommodation.[48]
[47]T33, LL5-7.
[48]T33, LL14-16.
While Rada could not recall the date she left the Carlton property, she knew that she left it to move to the Brunswick West property. Her evidence was that they stayed at the Brunswick West property for a brief period, but it was not appropriate accommodation.[49] She thought that she lived there for less than a year.[50] She said that Nail lived with her every day and was no longer living in the Richmond property at that time.
[49]T32, LL28-31.
[50]T33, L21.
Rada was asked in evidence in chief why the living arrangement changed from Nail and Rada spending some nights at her place and some nights at his place. As far as she could remember, Nail’s nephew ‘turned up and he stayed at that [Richmond] property’.[51] Rada was asked again in evidence in chief whether she moved to the Brunswick West property before or after Jasmin came to Australia. She again said that she could not answer that question and could not recall.[52] She said that she could not recall exactly how long Jasmin stayed at Nail’s home.[53]
[51]T34, LL1-2.
[52]T35, LL28-29.
[53]T35, L31.
In relation to the Brunswick West property, Rada’s evidence was that it was one bedroom and that they slept like wife and husband in wedlock.[54] The rent for the Brunswick West property was deducted directly from her pension in her account. She said that Nail helped in different ways, contributing to groceries and other every day shared expenses.[55]
[54]T36, LL8-9, 13.
[55]T36, LL14-20.
Rada was asked a number of times in evidence in chief when Nail moved in with her permanently. Her evidence was:
First it was in West Brunswick, and then we moved to Fitzroy North. But while he was in Richmond and I was in Carlton, it was just visiting and staying overnight.[56]
[56]T37, LL17-20.
The evidence discussed above was also the subject of cross-examination, in which Rada confirmed that she could not remember how many years she lived in the Carlton property and that she had lived in the Brunswick West property for less than a year.[57] It was put to her that she vacated the Carlton property on 5 June 2002 based on the public housing application.[58] She also confirmed that her granddaughter Rebecca was living with her at the Brunswick West property and that it had two bedrooms rather than one, as she had said in her evidence in chief.[59]
[57]T85, L1.
[58]Exhibit P1.
[59]T85, LL27-28.
In cross-examination Rada said that she thought that she had only lived a short time in the Brunswick West property but could not recall exactly when.[60] Rada’s evidence was that from the time she moved to the Brunswick West property Nail remained with her permanently but he never changed his address formally, and maintained the Richmond address.[61]
[60]T87, LL27-29.
[61]T104, LL8-13.
She was asked, ‘When he came to live with you permanently, did he say anything to you?’. Her answer was, ‘I don’t know what he was expected to say to me. We just make an arrangement, agreement to live together’.[62] It was then put to Rada, ‘I'll rephrase that. Did he say anything as to – did he explain why he was moving in with you?’ and her answer was, ‘Because living together would be much better for both of us than living separately’.[63]
[62]T37, LL21-23.
[63]T37, LL24-27.
Rada’s evidence in relation to Nail’s health was that he began experiencing poorer health once they had moved to the North Fitzroy property. He had a heart attack when they went on a trip to Bright and he stayed in hospital for a week in Wangaratta and was then transferred to St Vincent’s Hospital for surgery where he remained for two weeks. Her evidence was that when he was at St Vincent’s Hospital she remained with Nail all the time and just went home to sleep. Nail returned to the North Fitzroy property with Rada when he was discharged.[64]
[64]T39, LL4-5.
Rada said sometime after they moved to the North Fitzroy property and after the heart attack and surgery, Nail’s health deteriorated. Her evidence was that he became forgetful, he was confused, he could not control his bowels and that he was incontinent ‘in both ways’.[65] Her evidence was that caring for him was manageable during the day but it was difficult during the night. They attended medical appointments more frequently and Nail needed assistance with bathing and getting dressed.[66] Rada provided him with all of his assistance in the home including the bathing. Her evidence was that slowly he was unable to walk and this lasted for approximately four years.
[65]T41, LL22-27.
[66]T42, LL1-5.
Rada said that when Nail became weaker and was unable to manage his banking she took him to the bank. She recalled she had to present her passport, her pensioner’s card and Medicare card to obtain authority to withdraw money from Nail’s account on his behalf. She said that she would pay his expenses. This usually involved Rada going to the post office and paying by cheque. Rada was asked whether there were any of Nail’s expenses that she had to pay. She said that she did not mind whether it was her money or his when it came to paying for his medications and that she was also buying incontinence pads for him. Her evidence was, ‘So I didn’t care whether the money was his or mine’.[67] Rada went to all of Nail’s medical appointments with him. Apart from washing him and doing the domestic work she attended to his personal grooming including shaving and brushing his teeth. When he became weaker she provided assistance by feeding him. Even when he was admitted to hospital in the final stages of his life, Rada did everything for Nail that she used to do at home. Rada’s evidence was that she received some assistance from the hospital in this later period and somebody would remain with Nail while she went to do the shopping.
[67]T47, L1.
She described her relationship with Jasmin four years prior to Nail’s death in January 2016 as ‘superb’. She said that the Jasarevics then stopped visiting and did not contact them in any way. Her evidence was that they asked Nail to sign something which he refused and they got cross and angry with him.[68]
[68]T48, LL 15-19.
Rada said that, prior to this falling out, Jasmin would visit them at the North Fitzroy property occasionally, but not often. She did not know the reason why there was a falling out between Jasmin and Nail.[69] She said that occasionally Rada and Nail would visit the Jasarevics at their house and that Jasmin and his family would then drive them home.
[69]T49, LL24-25, 29.
Rada said that she next had contact with Jasmin on 5 January 2016 when he called her and came for a visit.
Rada recalled that on 13 January 2016, the day before Nail died, Jasmin and his wife visited the hospital. On the day that Nail died, Jasmin asked Rada to release Nail’s body to let him bury Nail in accordance with Islamic traditions.[70] She recalls signing a document to release Nail’s body to the Islamic Society of Victoria. Rada’s evidence was that when Nail was admitted to hospital he nominated her as his next of kin.[71] Exhibit D21 is a letter dated 18 January 2016 and signed by Rada, authorising the release of Nail’s body to Jasmin. In relation to Exhibit D21, Rada recalls that a lawyer was present and there was a funeral director. She understood that she was giving permission for Nail’s body to be taken.[72]
[70]T51, LL1-5.
[71]T70, LL13-14, 16.
[72]T73, LL24-27; Exhibit D21.
It was put to Rada in cross-examination that she did not have any choice in releasing Nail’s body to Jasmin, because he was Nail’s only surviving relative, and that she would not have released the body if she really had been Nail’s partner. Rada’s evidence was that she had all the rights because she was the next of kin. In cross-examination, Rada said that she had the power to stop certain people from speaking to Nail if they were causing him concern and the doctors accepted this.[73] She said that the reason for signing the authority to release Nail’s body was because Jasmin had asked for it and had said to her that he would sue her if she did not.[74]
[73]T117, LL17-26.
[74]T117, LL30-31; T122, LL17-24.
Rada confirmed that she never disclosed to Centrelink that she was in a relationship with Nail.[75] She said that after his death she received a letter from Centrelink and was required to complete a form which, which someone else completed on her behalf. Exhibit D22 is a letter from Centrelink to Rada dated 24 October 2016, which included a document titled ‘Relationship details’. Rada did not recall filling out this document. She confirmed that she signed the document and understood the document related to her pension, but that she was not sure as to the details because she does not read English.[76] Her evidence was that somebody had reported to Centrelink that she was caring for Nail, but she could not recall all the details.[77] She said that she did not fill in the document, but only signed it.
[75]T51, L31-T52, L1.
[76]T75, LL8-10.
[77]T75, LL4-7.
Exhibit D23 is a Centrelink relationship details form signed by Rada and dated 14 November 2016. Rada was referred to question 83 which asked, ‘In your opinion how does your relationship with the other person differ from that of a married, registered or de facto couple?’. The written response states: ‘In my opinion we were in a de facto relationship for the last five years before he passed away. Before that we were considered as boyfriend/girlfriend sharing each other’s company’.[78] Her viva voce evidence in relation to that response was, ‘That was correct, yes. That is correct. We were like husband and wife. Just that we weren’t married’. It was put to Rada, ‘I’m talking to you about the last five years. How long would you say your relationship with Nail was?’. ‘Since 1990, but what is written here that was when he was already ill. He was ill at that time’.[79]
[78]Exhibit D23.
[79]T75, LL25-31.
Rada was referred to Exhibit D15, which included an aged care client record application form dated 14 December 2015. The document was signed by Rada on 14 December 2015 and the applicant was Nail Hamidovic. It was an application for approval to receive aged care. The document records that Nail was unable to sign the document because he had dementia and that the person signing it on his behalf was Rada. Her relationship to Nail is recorded as ‘partner’ and the address given is the North Fitzroy property. At paragraph 22, the relationship of the carer to the client is ticked as wife/partner. Nail’s comprehensive health assessment is recorded as having been completed on 21 December 2015; the health professionals who participated are noted as being an occupational therapist and an interpreter. At Part 5, headed ‘Assessment summary and information for service providers’, the assessor has typed details in relation to Nail’ s condition and his requirements. His general practitioner is recorded as being Dr Zoltan Vilagosh. The assessment concludes as follows:
Mr Nail Hamidovic is an 83 year old gentleman who lives at home with his partner, Rada who is his main carer, and her son. Nail was referred to the aged care assessment service (ACAS) by a social worker from St George’s hospital following an admission where he was diagnosed with recto-sigmoid cancer. Nail was last assessed by ACAS in July 2014 and approved for a home care package (HCP), yet it does not appear that a package has been offered during this time.
Since his last ACAS assessment, Nail has experienced further functional and cognitive decline. He was case managed by the hospital, admission and risk program (HARP) between April-September this year, which assisted with coordination of his healthcare needs and a result of diagnosis of lewy body dementia by Professor John Drago at the St Vincent’s clinic. Due to ongoing weight loss, loss of appetite and diarrhoea he was admitted to St Vincent’s on 15.10.15, resulting in his diagnosis of recto-sigmoid cancer. He is for conservative management and as per his partner’s wishes, Nail has not been informed of the diagnosis.
Rada is accepting of the situation and wishes to continue to continue to care for Nail at home. He is mobile with supervision for safety, yet requires assistance with all personal care tasks, including continence management. He appears quite settled and Rada reports that Nail is generally happy and cooperative. In home rest with support is due to commence with the council and community palliative care are involved. Rada is not seeking any further in home supports at present. Residential respite care was discussed and high level residential respite approval was provided should access be required in the future. Nail remains on a wait list for a HCP, yet Rada does not feel it is required at present.
Rada was asked in cross-examination, ‘…did you say to the hospital in this form that you were the partner of Nail Hamidovic?’. Her answer was, ‘They knew everything. I shouldn’t have told them anything because I was always with Nail, and they were aware of what was happening’.[80]
[80]T111, LL12-16.
When asked in relation to Exhibit D15, ‘Did you tell them that you were the partner?’ her response again was, ‘They all knew that we were together, like husband and wife. In hospital they knew. And the local chemist where we would go on a weekly basis, and they called me Mrs Hamidovic, not Mrs Nesovanovic.’[81]
[81]T120, LL11-14.
It was put to Rada in cross-examination that Jasmin would give evidence that she was never Nail’s partner and that Nail never told him that he was her partner. Her evidence was:
None of that is true. They know very well what we were. And they always would say that he is a very lucky man for meeting me. They can shake their heads now as much as they like but I can under oath say this freely...[82]
[82]T113, LL7-14.
Rada’s evidence was that Jasmin and his wife ‘were aware, they were aware of this fact every time we would go out together, or every time we would call our friends.’[83]
[83]T120, LL19-21.
Mr Jasmin Jasarevic’s evidence
Jasmin migrated to Australia on 3 September 1998 from Bosnia. Nail was his uncle.
Jasmin confirmed that when he moved to Australia he lived at the Richmond property for three months. His evidence was that he first met Rada at the airport when he arrived from Bosnia in September 1998. His uncle introduced her at the airport and his uncle said, ‘these are my friends and this is also my lady friend, Rada’.[84] Jasmin said that he moved from the Richmond property to another flat at 136 High Street, Richmond. He and his family lived at the flat for four years up until 2002, when they bought a house in Narre Warren South.
[84]T162, LL6-7.
Jasmin’s evidence was that after he moved out of the Richmond property, Nail moved back in.[85] He said that while he was at the High Street property between 1998 and 2002, he saw his uncle ‘monthly four or five times’. He said that he did not see Rada often in this period with his uncle and that since he has been in Australia he has seen Rada ‘probably ten times’.[86] He said that on those ten occasions, ‘We have met when we were invited for lunch at their place and when they were coming together to our place.’[87] He was asked whether he asked his uncle who Rada was and that his uncle told him Rada ‘is great friend’.[88] He was told this in the beginning when he came to Australia. He said that he had only been to the Yugoslavian Social Club with his uncle on two occasions.
[85]T163, L21.
[86]T164, LL6-7.
[87]T164, LL11-13.
[88]T164, L16.
He did not recall his uncle ever moving from the Richmond property to another place,[89] or that his uncle had told him he had changed address.[90]
[89]T165, L28.
[90]T166, L1.
Jasmin’s evidence was that he had never visited Rada or Nail in the Brunswick West property.[91] He saw his uncle in 2013 at the Richmond property, when he took him a photograph montage of his son’s graduation as a commercial pilot.[92] He said that he did not see his uncle often between the time moved to Narre Warren South and Nail’s death. He said that it may have been once a month and that he was busy.[93] He said that after 2013, he never saw his uncle in the Richmond property again. After that occasion he saw his uncle for the last time at the North Fitzroy property, just before Nail died.[94] He said that the Richmond property looked normal when he last visited in 2013 and that it was filled with furniture.[95] He said that Nail’s health was not good. He was asked whether he was aware that in 2013 Rada had been caring for Nail. He said he did not know but he could assume it considering the fact that they were ‘great friends, very good friends’.[96] His evidence was that Nail never told him that Rada was his partner, he just said that they were great friends; Nail never said anything and Jasmin never asked.[97]
[91]T166, L14.
[92]T167, LL1-3.
[93]T167, LL23-24.
[94]T168, LL2-3.
[95]T168, LL8-9.
[96]T169, LL5-6.
[97]T169, LL10-11.
Jasmin said that, following his uncle’s death, he went to the Richmond property. There was furniture in place and the kitchen was filled with food, coffee, sugar, oil and rice, there was food in the fridge and there was meat in the freezer.[98] He said that the wardrobe in the second bedroom was full of clothing.
[98]T170, LL9-12.
Jasmin said he learnt of Nail’s move to Rada’s home approximately two weeks before his uncle’s death. This was in circumstances where he had tried calling Nail at the Richmond property but the phone was disconnected. He said that he went to the Richmond property, knocked at the door a few times and that he then ‘realised that he must have been at Rada’s because they are good friends and it turned out that he was.’[99]
[99]T170, LL30-31.
In relation to the release of Nail’s body, Jasmin’s evidence was that he was told by the hospital that he could take the body, that he contacted the Islamic centre in Preston and that they organised to take the body from the hospital.[100] He said that he rang Rada and told her that he had taken the body and informed her of the time and place of the funeral.[101] Exhibit D21 confirms that St Vincent’s Hospital would not release the body without Rada’s authorisation; this is consistent with Rada’s recollection of what she was required to do to give permission.
[100]T171, LL13-18.
[101]T171, LL20-23.
Jasmin’s evidence was that his uncle wanted a burial in accordance with Islamic tradition, as was done for Enesa when she died.[102] He denied threatening to sue Rada if she did not agree to release Nail’s body.[103] He said that he never spoke to her about the funeral,[104] or permission to release Nail’s body for burial.[105] Even if Jasmin did not directly seek Rada’s permission, D21 suggests that the permission was necessary.
[102]T172, LL9-18.
[103]T186, L31; T187, L1.
[104]T187, LL1-2.
[105]T187, L12.
In cross-examination, Jasmin was asked whether Nail’s reference to Rada as a ‘lady friend’ meant a girlfriend, to which he said no. His evidence was that it simply meant a friend who was a lady.[106] His evidence was that when they invited his uncle out they would always ask him to bring Rada, because Rada had invited them along with other people.[107] The following exchange then took place in cross-examination:
[106]T176, LL11-12.
[107]T178, LL13-15.
Q Let me just understand. So if you organise something and you asked your uncle to come you would also ask him to bring Rada?
A Yes. Not always. Not always, no, no.
Q So is the answer yes or no?
A No.
QSo you start off your answer with a yes and you end up with a no so let me ask you a question again. Am I right in saying that when you ask, when you organise events and you ask your uncle to come you would also ask him to bring Rada with him?
A Not always.[108]
[108]T178, LL16-24.
Jasmin was then asked in cross-examination whether he was aware that his son and wife met with Rada without him and he said, ‘No. I don’t know. I don’t know.’[109] His evidence was that he saw his uncle in 2011 after he had surgery and while he was still in hospital. He confirmed that he did not see his uncle again until 2013 when he gave his uncle a photograph montage of his son’s graduation.[110]
[109]T178, LL27-29.
[110]Exhibit D8; T179, LL2-9.
Subsequently in his cross-examination, Jasmin agreed that he had seen Rada with Nail before 2013 when they were invited to Rada’s North Fitzroy property.[111] Jasmin had initially said in cross-examination that he was not aware that Rada had lived in Carlton,[112] but later said that he may have gone to the Carlton property once when he was living in Nail’s apartment, or perhaps three or four times after they had moved into the High Street property.[113]
[111]T179, LL28-31; T180, LL2-4.
[112]T180, L18.
[113]T180, LL19-23.
Jasmin was asked whether it surprised him that Nail spent three months living with a ‘lady friend’ while he and his family lived in his Richmond property. His evidence was, ‘He said that they are great friends and they are willing to help us. Whether they will sleep in separate rooms or not, beds or not, in our custom friend is a friend.’[114] In relation to Exhibit D24, a postcard addressed to Nail and Rada at the Brunswick West property dated 31 May 2004, Jasmin said that it was his wife and son who sent the postcard.[115] He said that even if his wife had told him that Rada had moved to Brunswick West, it had not registered with him and that he was only interested in Nail.[116]
[114]T181, LL12-15.
[115]T182, LL27-28.
[116]T183, LL8-9.
When asked why he had assumed that Nail must have been living with Rada two weeks before his death, Jasmin’s evidence was, ‘Yes, I knew and I saw it because only a great friend will take you to their place. I saw it because he spent three months at her place. Only a great friend will do that for you.’[117]
[117]T184, LL23-26.
He was then asked in cross-examination, ‘So when you couldn’t find Nail you knew he was weak and you assumed that he was with Rada. Is that your evidence?’. He said, ‘My wife assumed and she said that most likely he is there and she rang. Actually she told me and I rang.’[118]
[118]T185, LL3-6.
Jelica Skoric’s evidence
Ms Skoric is Rada and Nail’s close friend. She has known Rada and Nail since the early 1990s, both through the Serbian community and because they were her father’s neighbours.[119] Ms Skoric gave evidence that she went to her father's house every day due to his poor health and she would see Rada and Nail there several times a week.[120] Ms Skoric said that in 2008 she moved in with her father as his full time carer. From then on, she saw Nail and Rada at her father’s house every day.[121]
[119]T141, LL11-15.
[120]T142, LL9-10.
[121]T146, LL15-17.
Ms Skoric referred to Nail and Rada as ‘uncle’ and ‘auntie’.[122] She said she knew them as a couple and they were always together.[123] After her father passed away in December 2011, she continued to see Nail and Rada quite a lot.[124]
[122]T142, LL12-13.
[123]T142, LL16-17.
[124]T148, L4.
Ms Skoric also gave evidence that her father was the President (and subsequently the Treasurer) of the Serbian Club, in which Nail and Rada were actively involved and which Ms Skoric herself attended on occasion.[125] Ms Skoric's evidence was that Nail referred to Rada as 'darling',[126] that he would serenade Rada,[127] hug and cuddle her whilst she was cooking,[128] and that they would sit next to each other to eat.[129] Ms Skoric also gave evidence that the Serbian Club ran trips to various locations and she booked the accommodation for these trips.[130] She said that Rada and Nail always shared a double bed on these trips.[131]
[125]T144, LL1-4; T144, LL17-18.
[126]T145, L6.
[127]T144, LL30-31.
[128]T144, LL28-29.
[129]T144, LL27-28.
[130]T144, LL4-10.
[131]T146, LL1-2.
Veljan Naumovski’s evidence
Mr Naumovski is Rada’s eldest son. He gave viva voce evidence and his affidavit sworn 18 July 2016 was tendered. Mr Naumovski first met Nail when Nail moved in to live with Rada in her housing commission flat in Carlton, in approximately early 1990.[132] Mr Naumovski said he regularly visited Rada, and Nail was present during these visits.[133] He attended lunches that were hosted by the Yugoslavian Social Club and Serbian Club about once or twice a month,[134] and during these lunches he saw Nail and Rada showing mutual respect and admiration towards each other.[135]
[132]Veljan Naumovski's affidavit sworn 18 July 2016, [5].
[133]Ibid [7].
[134]Ibid [13]; T135, L23; T136, LL8-9.
[135]Veljan Naumovski's affidavit sworn 18 July 2016, [13].
Mr Naumovski deposes that in around 2007, after suffering financial trouble, he moved in with Rada and Nail at the North Fitzroy property.[136] Mr Naumovski said the house had two bedrooms and he moved into one, whilst Rada and Nail shared the other.[137] Mr Naumovski said that during his time with Nail and Rada in North Fitzroy, he saw them doing activities ‘that a normal couple would do such as shopping and cooking together, sitting next to each other and talking together, watching TV together, listening to folk music together, socializing together and walking together to club functions and weekly meetings.’[138]
[136]Ibid [10].
[137]Ibid.
[138]Ibid [12].
Mr Naumovski's evidence is that in around 2011, Nail's health deteriorated and Rada began caring for him, ‘bathing him, feeding him, shaving him, and doing all that was necessary to look after him and make his life as comfortable as possible until his death’.[139]
[139]Ibid [15].
Anka Vukicevic’s evidence
Ms Vukicevic’s affidavit affirmed 28 July 2016 was tendered into evidence. Ms Vukicevic knew Nail for approximately 50 years,[140] and has known Rada since approximately November 1989.[141] Ms Vukicevic deposes that she attended the Yugoslavian Social Club and Serbian Club gatherings regularly and saw Nail and Rada together at these gatherings.[142] Ms Vukicevic visited Nail and Rada in the Carlton housing commission flat and in North Fitzroy. She also deposes that Rada and Nail visited her and her husband regularly at their home.[143]
[140]Anka Vukicevic’s affidavit affirmed 28 July 2016, [2].
[141]Ibid [4].
[142]Ibid [4]-[5].
[143]Ibid [7].
Ms Vukicevic deposes that she always saw Nail and Rada as a couple.[144] She said they acted affectionately towards each other both at the pensioner group gatherings and at their home,[145] they socialised together and lived together.[146] Ms Vukicevic’s evidence is that in the years prior to his death, Rada looked after Nail and was always with him until he died.[147]
[144]Ibid [11].
[145]Ibid [9].
[146]Ibid [11].
[147]Ibid [10].
Dr Zoltan Vilagosh’s evidence
Dr Vilagosh gave viva voce evidence and his affidavit sworn 13 April 2017 was tendered. Dr Vilagosh was Rada and Nail’s general medical practitioner since the early 1990s and remained Nail’s general practitioner until his death in 2016.[148] Dr Vilagosh deposes that Rada and Nail generally saw him once or twice a month and always went into the consulting room together, even if only one of them needed a consultation.[149] He said that he spoke to and examined Rada and Nail in the presence of the other.[150]
[148]Dr Vilagosh’s affidavit sworn 13 April 2017, [3]-[4], T151, L10.
[149]Dr Vilagosh’s affidavit sworn 13 April 2017, [6]-[7].
[150]Ibid [8]-[9].
Dr Vilagosh gave evidence that he saw Rada and Nail as a couple:
they told each other off, got annoyed with each other and spoke to each other like a couple would. Nail was not very good at taking his medicine in accordance with his instructions. I often saw Rada telling Nail off for not taking his medicines.[151]
Dr Vilagosh’s evidence is that as Nail’s health deteriorated, he believed Rada to be responsible for Nail’s medical matters.[152] Further, Dr Vilagosh deposes that in the months immediately preceding Nail’s death, he visited Nail five times at the North Fitzroy property, and Rada was present at each of these visits.
[151]Ibid [11].
[152]Ibid [12].
Stanko Radonic’s evidence
Mr Radonic’s affidavit sworn 29 October 2016 was tendered into evidence. Mr Radonic has been the President of the Yugoslavian Social Club since 1992,[153] and knew Nail since 1970.[154] Mr Radonic’s evidence is that he saw Rada and Nail at the Yugoslavian Social Club on many occasions[155] but did not think they were partners, due to: Nail’s failure to behave like a partner to Rada at the club; Nail’s multiple representations to Mr Radonic that he was single; Nail’s failure to admit to Mr Radonic that he and Rada were a couple; and Nail’s behaviour with other women, in that Mr Radonic saw Nail ‘kiss other women as a friendly gesture’.[156] Mr Radonic deposes that, at the very most, Nail and Rada were good friends.[157]
[153]Stanko Radonic’s affidavit sworn 29 October 2016, [1].
[154]Ibid [3].
[155]Ibid [10].
[156]Ibid [11]-[13].
[157]Ibid [12].
Maria Danko’s evidence
Ms Danko’s affidavit sworn 29 October 2016 was tendered into evidence. Ms Danko was the President of the Yugoslavian Social Club for two years from 1990.[158] She asserts that Nail and Rada were not in a partner relationship.[159] Ms Danko deposes that she does not believe they were in love with each other, or that they acted as husband and wife.[160] She bases this on her observations of Rada and Nail at club functions, their body language and tone of voices.[161] Ms Danko’s evidence is that Nail and Rada rarely sat together at club functions and Nail was friendly to all women.[162] Ms Danko deposes that she was close to Nail and he kissed her too.[163]
[158]Maria Danko’s affidavit sworn 29 October 2016, [1].
[159]Ibid [5].
[160]Ibid [6].
[161]Ibid.
[162]Ibid [9].
[163]Ibid [7].
Rada’s submissions
It was submitted that for some 25 years Rada was in an intimate, affectionate, publicly acknowledged relationship with Nail and that, save for a short break in 1995, that relationship continued until Nail’s death in January 2016.
It was submitted that Jasmin was either well aware of the true nature of the relationship, or at the very least he was well aware of all the facts and the circumstances which would indicate to a reasonable person that Rada was Nail’s partner.
As to Jasmin’s suggestion that Rada’s assistance in the last years of Nail’s life points to her being his carer, it was submitted that they shared a long relationship together and in the final few years Nail required assistance. Rada cared for him because of that relationship, and the mere fact that she cared for him does not make her a carer rather than a domestic partner.
It was submitted that counsel for Jasmin sought to compartmentalise the application of the factors under s 35(2) of the Relationships Act and separate the final two year period immediately before Nail’s death from everything that happened earlier. It was submitted that this approach is incorrect; the Court must look at the entire relationship. The focus of a relationship may change over a long period of time. A court must bear in mind that at a different period of times, some indicators of a relationship may be more relevant than others.
Counsel for Jasmin submitted that Rada’s failure to report her relationship status to Centrelink goes to her credit and that the Court is entitled to take that into account. However, as Rada is 85 years of age, and English is her second language, it was submitted on her behalf that it is not surprising if she did not understand the document fully. Further, the ‘relationship details’ of the Centrelink form provides a general explanation as to the relationship which is fairly consistent with Rada’s evidence.
It was submitted that the fact that Rada’s permission was required to release Nail’s body recognises that she is his domestic partner.
It was submitted that Rada and Nail presented themselves as a couple and people saw them as a couple. There is evidence from friends, Anka Vukicevic and Jelica Skoric, who point to their observations of the degree of closeness between Nail and Rada throughout the relationship. Similarly, Dr Vilagosh gives evidence of facts which point to a close and intimate relationship.
It was submitted that while Rada’s son might be said not to be an independent witness, he is in a unique position in having lived with Nail and Rada from 2007 and his evidence gives some insight into the domestic arrangements during that time.
Documents were tendered including postcards and a letter from the State Trustees in 2008 addressed to Nail at Rada’s address. It was submitted that the Court can infer that the writers were reasonably confident that in reaching Nail at that address.
Counsel for Rada characterised Jasmin’s evidence as being to the effect that he simply did not know of the relationship. Counsel says that that Jasmin in fact knows more than his evidence suggests, particularly in light of Nail staying with Rada for three months when Jasmin arrived in Australia.
It was submitted that, overall, Rada is the more credible witness. It was said that there was an interesting change between Jasmin’s evidence in chief and cross examination, with Jasmin attempting in the latter to shift any knowledge of the relationship to his wife.
It was submitted that the evidence of Maria Danko and Stanko Radonic is of limited assistance. They give opinions as to the status of the relationship, without any basis for the opinion and without any context.
Jasmin’s submissions
Counsel for Jasmin submitted that there was a relationship between Nail and Rada, but says that the issue is the quality of the relationship as a domestic relationship. Jasmin conceded that Rada cared for Nail in the final two years of his life, but this was said to be more consistent with a carer than a partner, particularly having regard to the maintenance of separate finances.
It was submitted that there is little evidence in the final two year period before Nail’s death. There is some evidence that may point to a relationship sometime before that, however it does not support what happened in the final two years.
It was submitted that the satisfaction of any of the relevant relationship criteria is contingent on the giving of credible evidence. Rada’s evidence as to the commencement of the relationship is said not to be credible for the reasons set out in paragraph 38, above.
Whilst Rada gave evidence that Nail had said he wanted Rada to have the Richmond property after his death on at least two occasions, he did not make such arrangements. It was submitted that this is relevant to the degree of commitment between the two.
Counsel says that the evidence completely lacks an expression of love between Rada and Nail, which is crucial to a de-facto relationship; Rada’s evidence is completely void of that word and generally of expressions of romantic connection.
As to the nature and extent of the common residence, it was submitted that even if they lived together in the North Fitzroy property, the deterioration of Nail’s health after his heart attack negatives any presumption of a de facto relationship. It was submitted that if Nail suffered from dementia, it is difficult to evidence a de-facto relationship in that period.
As to the significance of the hospital record naming Rada as next of kin, counsel says that it is possible that Rada nominated herself, or that hospital authorities assumed the relationship, but that does not the relationship.
It was further submitted that no explicable reason was given as to why Rada and Nail maintained separate houses. Counsel for Jasmin accepted the principle that separate households is not determinative of whether there is a relationship. However, it was submitted that there has to be an explicable reason as to why two separate households were maintained. Rada’s explanation for why Nail moved in, namely that ‘living together would be much better for both of us than living separately’, is not a good enough explanation for the commencement of a relationship.
It was submitted that all of the evidence, taken on face value, establishes that at some point in the past Rada and Nail were seen together, and people perceived them as a couple. While relevant, such evidence does not answer the ultimate issue: whether in the last two years they were a couple.
It was submitted that the most telling aspect was when Nail passed away and Rada released his body. She did not act like a wife or partner. The reason she gives for releasing the body, namely that Jasmin threatened to sue her, is just not good enough.
It was submitted that there is a lack of evidence about what they did together and what they said. Rada was given the opportunity to give this evidence but did not do so.
It was submitted that there was no evidence led that should satisfy the Court that Jasmin’s wife was aware of the nature of the alleged relationship. Even if one assumes that Jasmin’s wife did know more of their relationship, imputation of that knowledge to Jasmin does not prove the relationship, either generally or during the relevant period.
Findings
I find that Rada and Nail lived together in a marriage-like relationship from approximately 1995, when Nail returned from living with Enesa, until Nail’s death in January 2016. They were also in a marriage-like relationship from as early as 1990 until 1995, prior to a break in the relationship when Nail moved back to live with Enesa for three months. However, from Nail’s return in 1995, they were in an ongoing genuine domestic relationship until his death in January 2016. From 1995 to around 1998, the couple regularly co-habited, sometimes at Rada’s house and sometimes at the Richmond property. Nail moved in permanently with Rada in about 1998.
There are many factors which support the existence of a genuine domestic relationship between 1995 and 2016. A de facto relationship is a continuing course of conduct and behaviour. A conclusion that people are living together as a de facto couple involves a consideration of the circumstances they are living in, which includes location. Location, however, is not the cornerstone of the test: it is one factor among many.
In this case, the duration of Rada and Nail’s relationship was significant. From 1998 until January 2016, they lived together on a permanent basis under the same roof. The fact that Nail maintained the Richmond property does not displace this evidence. In Hayes v Marquis Einstein J said:[164]
Upon its proper construction the expression “living together” in the context of the instant legislation [the Property (Relationships) Act 1984 (NSW)] is to be understood as referring to the sharing of a home: that is to say to cohabit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as ‘their home’. Both of them may not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere…
[164][2008] NSWCA 10, [166].
In this case, the evidence of Rada, Ms Skoric and Mr Naumovski is that the North Fitzroy property was considered home to Rada and Nail. This is despite Nail still owning the Richmond property. Rada, Ms Skoric and Mr Naumovski’s evidence is that Rada and Nail lived together on a permanent basis in this period. Ms Skoric saw them on a regular basis and gave compelling evidence that the North Fitzroy property was their home and that they lived as a genuine couple. Mr Naumovski had the benefit of living with them from 2007 and gave evidence of his direct observation that they were living as a genuine couple, to his mind.
The fact that they maintained separate finances is not evidence to displace the existence of a genuine domestic relationship. In any event, there was a level of shared finances and Rada had authority in the last few years to access Nail’s accounts and withdraw money for him.
The evidence portrays a loving, committed relationship which was observed by third parties to be a genuine domestic relationship. Rada and Nail publicly behaved as a married or de facto couple. They attended the Yugoslavian Social Club and Serbian Club weekly. Rada’s description of them leaving at 7am and returning home at 5pm, sitting together at the club and joining in activities together and attending trips together (in which they shared a room) is demonstrative of an intimate couple who were joined in a way that was much more than just friendship. They spent most of their time together doing daily activities such as shopping, attending medical appointments, preparing meals for friends and family, going on trips together organised by the clubs, and Rada would do Nail’s laundry.
Jasmin’s evidence is that he only attended the Yugoslavian Social Club on a couple of occasions. He conceded that he had not seen much of Nail or Rada from 2002 onwards.
The affidavit evidence of Mr Radonic and Ms Danko was that they did not think Rada and Nail were partners.[165] In circumstances where Mr Naumovski and Ms Skoric observed Rada and Nail at the club and in their home and on a regular basis over a significant period of time, I prefer their evidence over that of Ms Danko and Mr Radonic.
[165]Maria Danko’s affidavit sworn 29 October 2016, [5]; Stanko Radonic’s affidavit sworn 29 October 2016, [11].
Dr Vilagosh’s evidence was consistent with Rada and Nail being in a genuine domestic relationship. Each remained in the room during one another’s consultations and examinations in a way that an intimate couple would. This is not behaviour to be expected of ‘great friends’, but is consistent with a marriage-like or de facto relationship.
Rada and Nail had a longstanding sexual relationship. The sexual relationship diminished in later years. There is nothing untoward about this given the deterioration in Nail’s health from 2011 and their age.
Nail did not sell the Richmond property. However, all of the evidence (save for that of Jasmin) points to Rada and Nail living together at the Brunswick West property and the North Fitzroy property. Jasmin’s evidence is simply that he did not see much of Nail from 2002 and only saw Nail once in 2011 and once in 2013. On the two latter occasions, he said he saw Nail at the Richmond property. In relation to the 2013 visit, he said that the Richmond property was normally furnished.[166] He also said in evidence in chief that after probate was granted he went to the Richmond property and that it was furnished, there was clothing and some food.[167] He said that when he saw his uncle between 2011 and 2013 they never spoke about Rada and they were strictly private conversations.[168] When asked in cross examination if he knew that his uncle was living with Rada in the Brunswick West property, he said he did not know that and that he had contact with his uncle, not Rada.[169] He went on to say that he knew that his uncle was living in his Richmond apartment.
[166]T168, LL8-9.
[167]T170, LL9-17
[168]T179, LL15-17.
[169]T181, LL28-31.
I do not accept Jasmin’s evidence. On the one hand, he admitted that he did not see Nail often after 2002. His evidence moved from not knowing if Nail and Rada lived to together, to descriptions of the Richmond property as a lived-in apartment, and then to stating that he knew only that his uncle lived in Richmond.[170] This evidence was given despite being shown exhibit D25, the postcard from his wife to ‘Uncle Nail and Aunty Rada’ which was sent to the Brunswick West property. Jasmin disclaimed knowledge of this postcard, as it was from his wife. Further, Jasmin gave evidence that on the occasions he saw Nail, they would also invite Rada and they would attend meals at Rada and Nail’s house.
[170]T182, LL2-4.
The postcards and cards exhibited[171] are consistent with a publically acknowledged relationship. Tellingly, Exhibit D3 is a postcard addressed to Mr and Mrs Hamidovic dated August 1997 and sent to Rada’s Carlton property.
[171]Exhibits D2, D3, D4, D5, D6 and D7.
I do not accept Jasmin’s evidence that Rada was no more than a great friend or Nail’s ‘lady friend’. When one looks even at the Christmas card[172] sent from Jasmin’s wife to Rada and Nail, it beggars belief that she would have sent a card to both of them if they were no more than just friends, or that Nail would have moved in with Rada for three months so that Jasmin and his family could live at the Richmond property. I consider that Jasmin knew that Nail and Rada were in a de facto relationship or was aware of the circumstances and facts which would indicate that relationship to a reasonable person.
[172]Exhibit D5.
It is true that Exhibits P1 (Rada’s application for public housing in 2003) and P2 (Rada’s residential tenancy agreement in 2005) refer only to Rebecca, Rada’s granddaughter, as living with Rada at the time and do not refer to Nail. However, the direct evidence of Ms Skoric, Mr Naumovski, Dr Vilagosh and the affidavit of Anka Vukicevic is that Rada and Nail lived together from at least 1998 in a marriage-like relationship.
I consider the submissions on behalf of Jasmin that in the last two years Rada was no more than Nail’s dedicated carer, but not his de facto partner, as fanciful and disingenuous. Further, I reject the submission that Rada’s failure to say she loved Nail in her evidence demonstrates that this was not a genuine domestic relationship.
The evidence is that up until Nail’s health deteriorated from 2011 they lived in a full, active, engaging and loving relationship. Before then, Nail and Rada were sexually active, travelled together, attended the clubs on a weekly basis together, celebrated special events together, shopped together and shared every day domestic activities. They lived together under the same roof on a permanent basis from 1998 onwards and from 1995 spent every day together even though they moved between Rada’s property and the Richmond property. The evidence demonstrates that they lived a very typical marriage or de facto type relationship in that period. As Nail’s health deteriorated and his independence diminished, Rada assumed the responsibility of caring for Nail and ensuring that he was able to remain at home for as long as possible. Despite his serious ill health in 2011, Rada was able to assist Nail to remain at home until the last few weeks of his life. The fact that Rada assumed the role of a carer does not and should not displace the fact that she continued to be his life partner. In fact, Rada’s desire and willingness to take on the additional responsibility of caring for Nail is consistent with them being in a loving de facto relationship. Her dedication, physical exertion and emotional commitment to Nail from 2011 to 2016 are consistent with the actions and conduct of a dedicated, loving partner and of a relationship with strong foundations and commitment.
Exhibit D15, the aged care client record, is telling. The record was prepared following a comprehensive assessment. It portrayed Rada as having a genuine love and affection for Nail and a preparedness to do whatever she needed to do for his care. The hospital abided by her wishes not to tell Nail of his cancer diagnosis, a decision reserved generally for partners or next of kin.
Rada is recorded in the hospital documentation as Nail’s next of kin.[173]
[173]Exhibit D17.
One has only to look at the photographs exhibited to appreciate that Rada and Nail were much more than friends. On any objective assessment the relationship satisfies the requirement of s 51(1) of the Act. I consider Nail and Rada were in a very normal and loving, long term, genuine domestic relationship. In this case, the independent evidence of third parties added to that of Rada is sufficient to warrant the conclusion that they were in a continuous genuine domestic relationship from 1995 onwards.
I consider that Rada is the sole beneficiary of Nail’s estate and has the better right to apply for letters of administration of his estate. Accordingly, I consider that there are sufficient grounds for the revocation of the letters of administration granted to Jasmin and that letters of administration should be granted to Rada, who has the greatest interest in Nail’s estate.
I will ask the parties to consider the appropriate orders and will hear submissions on costs.
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