Liu v Muraca
[2020] VCC 788
•10 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| FAMILY PROPERTY LIST |
Case No. CI-16-05665
IN THE MATTER of Part IV of the Administration and Probate Act 1958
-and-
IN THE MATTER of the Will and Estate of SALVATORE MURACA, deceased
| JUN LIU | Plaintiff |
| v | |
| ANTONIO MURACA (who is sued as the Executor of the Will and Estate of the above named SALVATORE MURACA, deceased) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February and 20 May 2020 | |
DATE OF JUDGMENT: | 10 June 2020 | |
CASE MAY BE CITED AS: | Liu v Muraca | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 788 | |
REASONS FOR JUDGMENT
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Subject: TESTATOR’S FAMILY MAINTENANCE
Catchwords: Plaintiff seeks provision from the estate of the deceased for her proper maintenance and support – deceased made no provision for the plaintiff – plaintiff claims to be the domestic partner of the deceased at the time of his death – defendant the executor and trustee of the deceased
Legislation Cited: Administration and Probate Act 1958 (Vic), Part IV; Relationships Act 2008 (Vic)
Cases Cited:Dow v Hoskins & Ors [2003] VSC 206; In the matter of the Estate of Peter Douglas Sigg (deceased) [2009] VSC 47; Lynam v Director-General of Social Security (1984) FLC 91-577; (1983) 52 ALR 128; Re Ho; Liang v Broadfoot [2020] VSC 168; Re Gunn; Thomas v Gunn [2019] VSC 772; Riboskic v Stanojevic [2019] VCC 1764
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Kinsey | Slater & Gordon |
| For the Defendant | No appearance | No Appearance |
HER HONOUR:
1 Salvatore Muraca, the deceased, died on 19 November 2015, aged seventy-five years. The deceased had operated a fruit shop at 436 Lygon Street, East Brunswick for many years. At the time of his death, the Inventory of Assets and Liabilities filed with the application for a grant of Probate noted that the gross value of the estate is $714,000. The only assets of the estate are the property located at 436 Lygon Street, East Brunswick (“the estate property”) and a vehicle.
2 By Originating Motion filed 20 December 2016, the plaintiff, Jun Liu, sought an order for her proper maintenance and support from the estate of Salvatore Muraca, the deceased, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”).
3 The plaintiff alleges that she and the deceased were in a domestic partnership from March 2011 until the deceased’s death on 19 November 2015.
4 The deceased’s last Will dated 8 July 2009 made no provision for the plaintiff. The Will left the entire estate equally between the deceased’s three adult sons from his marriage which resulted in divorce.
5 The plaintiff alleges that the deceased had a moral duty to provide for her proper maintenance and support.
6 A preliminary question arises as to the plaintiff’s eligibility to bring her claim for provision. She asserts that she is an “eligible person” for the purposes of s90(a) of the Act on the basis that she was the domestic partner of the deceased at the time of his death.
7 There was no appearance filed by the estate in this proceeding and no appearance for the estate at trial. Orders for substituted service were made in this proceeding. I am satisfied that the estate has been served in accordance with the substituted service orders made in this proceeding.
Background
8 Probate of the deceased’s estate was granted on 23 June 2016. The plaintiff commenced this proceeding by Originating Motion on 20 December 2016. I note this was three days prior to the expiration of the time limitation.
9 On 8 December 2017, almost a year later, the plaintiff made an ex-parte application seeking an order for substituted service.
10 On 15 December 2017, an order for substituted service was made.
11 On 2 March 2018, the Court sent a warning notice to the plaintiff’s solicitors advising that a notice of appearance had not been filed and judgment in default of appearance had not been entered into against a defendant(s). The warning notice confirmed that if a notice of appearance was not filed or judgment in default of appearance was not entered, then the proceeding would stand dismissed.
12 There was no action taken by the plaintiff’s solicitors to prevent the proceeding being dismissed and no notice of appearance was filed by the defendant. On 5 April 2018, the proceeding was dismissed, and a dismissal notice was sent to the plaintiff’s solicitors.
13 On 24 April 2019, a summons was filed seeking the proceeding to be reinstated and judgment to be entered for the plaintiff for a sum the Court deems fit.
14 On 10 May 2019, the Court heard the plaintiff’s summons and the proceeding was reinstated with orders for substituted service and a future directions hearing.
15 By 6 June 2019, the Estate had still not filed a notice of appearance and the proceeding was listed for a further directions hearing.
16 On 18 October 2019, the proceeding was set for trial.
17 The trial of the proceeding commenced on 21 February 2020, where the plaintiff gave evidence. The Court indicated to Counsel for the plaintiff that based on the material before the Court thus far:
(a) the plaintiff would have difficulty establishing that she is an eligible person under the Act as the majority of the evidence is self-serving;
(b) the statutory declarations of the neighbours relate to a visa application which is not recent and do not address the matters to be established for a relationship of the kind required for eligibility under the Act; and
(c) given the time elapsed since the deceased’s death and probate being granted, the estate would have likely been distributed.
18 Counsel indicated that the trial could not be completed on 21 February 2020 as further instructions had to be sought and further documentation may need to be obtained. The trial of the proceeding was adjourned part-heard to 6 April 2020.
19 Due to the circumstances surrounding COVID-19, the proceeding resumed on 6 April 2020 electronically via Zoom. As the Estate had not been served in accordance with the order for substituted service of the proceeding resuming via Zoom, the trial of the proceeding was adjourned part-heard to resume on 20 May 2020 via Zoom to allow the plaintiff’s solicitors to notify the Estate of the proceeding resuming via Zoom.
20 The part-heard trial in this proceeding resumed via Zoom on 20 May 2020. There was no appearance by the Estate at the resumed hearing. A Zoom invite was sent to the executor’s last known email address. The trial of the proceeding concluded on 20 May 2020 and I reserved my decision. The plaintiff filed an affidavit of service confirming the Estate was served via substituted service of this proceeding resuming via Zoom on 20 May 2020.
Applicable legal principles: Is the Plaintiff an “eligible person”?
21 Under Part IV of the Act, a person must establish that he or she is an “eligible person”. In accordance with the definition provided in s90 of the Act, “eligible person” means:
“a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death.”
22 A “domestic partner” of a deceased person means a “registered domestic partner” or an “unregistered domestic partner” of that person. The meaning of “unregistered domestic partner” is stated in s3(1) as a person who, although not married to the deceased 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.”
23 The reference to an unregistered domestic partner is clarified in s3(3) of the Act:
“For the purposes of the definition of unregistered domestic partner in subsection (1), in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.”
24 Section 35(2) of the Relationships Act 2008 (Vic) is in the following terms:
“(2)In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case—
(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.”
25 Section 90 of the Act also contains a relevant definition:
“eligible person’ means—
(a)a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death.”
26 Although all of the matters listed in s35(2) of the Relationships Act should be considered, no one is determinative. The Court is to “stand back and look at the relationship as a whole”. Identifying whether the plaintiff 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”.[1]
[1]Dow v Hoskins & Ors [2003] VSC 206 at paragraph [7]
27 In Re Estate of Sigg,[2] Pagone J stated he agreed with the observations of Cummins J in Dow v Hoskins & Ors[3] and added that:
“… [I]t 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.”
[2]In the matter of the Estate of Peter Douglas Sigg (deceased) [2009] VSC 47
[3]In the Estate of Sigg (deceased) (ibid)
28 Such an approach reflects the reality that, as with married couples, people who are domestic partners live in a diversity of arrangements. Each “element of a relationship draws its colour and significance from other elements”.[4]
[4]Lynam v Director-General of Social Security (1984) FLC 91-577; (1983) 52 ALR 128
29 The question whether two people were domestic partners is necessarily a question of fact that depends on the length and circumstances of the relationship. As Cummins J observed in Dow v Hoskins & Ors,[5] the question “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”.
[5]In the Estate of Sigg (deceased) (ibid)
30 The onus of proving the existence of a domestic relationship lies with the person asserting its existence. That person must prove positively the existence of the defining characteristics of the relationship, rather than the other party being required to prove negatives. Where one of the alleged partners is deceased, the Court should adopt a cautious attitude to making a determination that a person was a domestic partner of the deceased. The rationale is that the deceased is not available to give evidence to demonstrate or rebut the existence of the relationship.[6]
[6]In the Estate of Sigg (deceased) (ibid), adopted by McMillan J in Re Ho;Liang v Broadfoot [2020] VSC 168, in Re Gunn;Thomas v Gunn [2019] VSC 772 and by Judge Misso in Riboskic v Stanojevic [2019] VCC 1764
31 In the Estate of Sigg,[7] in determining whether there was a genuine domestic relationship Pagone J was assisted by affidavits filed in the proceeding by others. In particular, an affidavit of a deponent who was able to depose to having had “ many opportunities over the relevant period to see the two and that they certainly appeared [to the deponent], and also his wife, as a couple, domestic partners and a good domestic relationship.”[8] Further, Pagone J said he was assisted by an affidavit of a deponent who had observed the relationship over twenty years and always considered the two to be in a relationship as if they were husband and wife and that they related to her and to others who were present on any other social occasions, as a couple and domestic partner.[9] He said some of the other affidavits were not as strong although they were not inconsistent with that view.
[7]Ibid
[8](Ibid) at paragraph [10]
[9](Ibid) at paragraph [11]
32 In Riboskic v Stanojevic,[10] Judge Misso considered whether the plaintiff had established a genuine domestic partnership and what others said as to the partnership, which corroborated the plaintiff’s evidence. His Honour said:[11]
“I think it is difficult to provide explicit reasoning why a relationship should be considered to be a genuine domestic relationship as opposed to one that is not. Obviously, the less features consistent with a broad community understanding of what constitutes a genuine domestic partnership and by having regard to the matters referred to in s35(2) of the Relationships Act 2008 are very relevant factors in reaching a conclusion whether there is evidence consistent with the existence of genuine domestic partnership. I think care needs to be exercised to avoid being seduced into thinking that a model relationship is the comparator in determining whether genuine domestic partnership exists or not. Individuals vary, what they value in a relationship varies, and just because it is apparent that individuals in a relationship have quirks and idiosyncrasies, and even degrees of volatility in their relationship, does not necessarily point to there being an absence of overall features consistent with genuine domestic partnership.”
[10](Ibid)
[11](Ibid) at paragraph [55]
33 In Riboskic, Judge Misso was assisted by the evidence of a few witnesses whose evidence supported the plaintiff’s evidence of her relationship to the deceased.
34 In this case, the plaintiff bears the onus to establish that she was “a domestic partner” of the deceased at the time of his death. The evidence of the plaintiff is to be approached with caution, given the inability of the Court to receive evidence from the deceased.
35 Furthermore, the estate of the deceased was unrepresented, and accordingly the plaintiff was not cross-examined.
36 The plaintiff relied upon her own three affidavits sworn 4 April, 13 and 29 November 2019. There was no other evidence of witnesses supporting the plaintiff’s evidence. The plaintiff gave evidence.
The Plaintiff’s evidence
37 The plaintiff was born in China in January 1977. In May 2009, she came to Australia on a Student Visa. She studied and obtained an Advanced Diploma of Justice. She arrived in Australia with $20,000 which she used for study, accommodation and living expenses. She met the deceased in November 2010 when visiting a friend in Brunswick. The deceased operated a fruit shop in Lygon Street, East Brunswick. She asked him directions, he was friendly and whenever she visited her friend in Brunswick she would stop and chat to the deceased at his shop.
38 In November 2010, the deceased invited her to dinner at his home which was behind the fruit shop. She had dinner at the deceased’s house on a number of occasions.
39 In December 2010, she spent Christmas Day with the deceased. At that time, the deceased did not mention that he had children. She spent every Christmas with the deceased until his death. She did not recall seeing the deceased’s children spending Christmas with the deceased or inviting him to visit during the holiday season.
40 In January 2011, she commenced a sexual and intimate relationship with the deceased. She said that her relationship with the deceased only ended as a result of his death.[12] She said it was a genuine domestic relationship.
[12]First affidavit
41 The plaintiff said that the deceased told her he liked her from the beginning and that he now loved her. He referred to her as his girlfriend and she considered the deceased to be her boyfriend.[13] She said he made her feel confident, secure and happy. He was respectful and she was happy whenever they had physical interactions with each other.[14] She said the deceased was much older than her, but because they had plenty to talk about, their conversations were interesting.[15]
[13]Second affidavit, paragraph 8
[14]Second affidavit, paragraph 9
[15]Second affidavit, paragraph 10
42 The plaintiff said that despite the age difference, they had much to talk about such as history and the environment and their family background.
43 The plaintiff said that in March 2011, the deceased invited her to live with him at the estate property. She did not agree to move in immediately. It was a big change in her life, and she wanted time to think about it. She asked him why he wanted her to move in. She deposed that the deceased told her she was a good girl and that he trusted her and wanted her to live with him.[16]
[16]Second affidavit, paragraph 11
44 In March 2011, the plaintiff moved into the estate property. She deposed that they shared a bed, meals and responsibilities. She assumed the role of housewife and carer.
45 She knitted jumpers and hats for the deceased. She assisted in the fruit shop, unloaded deliveries and served customers. She said she was not paid for this work.[17]
[17]First affidavit, paragraph 12
46 The plaintiff was studying at Holmesglen TAFE to obtain her Advanced Diploma of Justice and attended classes four days a week. On the days she attended classes in the morning. she helped the deceased open the shop at 7.00am. When she was not attending classes, she stayed at the shop and helped the deceased. If she was not in the shop, she was attending to housework or cooking dinner.[18]
[18]Second affidavit, paragraph 14
47 The plaintiff said in Winter 2011, the deceased became ill. He had an allergic reaction to a new medication. The plaintiff cared for him, washed and bandaged his legs nightly. Ultimately, he went to hospital, where he stayed for ten days. The plaintiff did not visit him in hospital but remained at the shop and attending classes at the deceased’s request. She believed he did not want to tell his sons that she was his girlfriend. During this period, one of the deceased’s son’s girlfriends, Nikki, looked after the shop when the plaintiff went to classes. Tony, the deceased’s son, would sometimes come to the shop, but she said he spoke very little to the plaintiff.[19]
[19]Second affidavit, paragraph 17
48 The plaintiff said that after the deceased was discharged from hospital, she cared for him and collected his medications from the chemist. A couple of months after the deceased was discharged, Nikki and Tony lived with the plaintiff and the deceased for a couple of weeks while they were looking for a rental property. During this time, the plaintiff said that Nikki became aggressive to the plaintiff and told her to leave the property.
49 From 2011 until the date of the deceased’s death, the plaintiff said she was entirely dependent on him for accommodation and financial support. She deposed for a short period she worked at a Chinese restaurant, earning $100 cash per week. Otherwise she relied on the deceased. She said the deceased gave her his bankcard and pin number and encouraged her to use the card for payment of bills and the purchase of groceries. The plaintiff deposed that the deceased paid her fees for the last semester of study which totalled $2,000. After the deceased gave her the money, she deposited it into her account and transferred the funds from her NetBank Saver account to her Smart Access bank account.
50 The plaintiff said that the deceased attended the doctors every Monday morning and she would stay and look after the fruit shop. On Wednesdays, she helped him unload the shop deliveries. The customers often asked the deceased if she was his girlfriend. She was unable to recall the customers’ names.[20]
[20]Second affidavit, paragraph 13
51 In 2012, the plaintiff told the deceased that her Student Visa had expired before she had an opportunity to submit her visa application. She informed him that she would likely be deported and would not be able to return to Australia for at least three years. The deceased said he did not want her to return to China. He told her that she should not have made such a mistake and that she should have discussed the visa with him before she filled out the forms. The deceased said he would sponsor her and would ask the neighbours to be witnesses.
52 In May 2012, the plaintiff applied for a sponsorship/partner visa based on being in a domestic and sexual relationship with the deceased. The deceased sponsored her application, paid the application and solicitor’s fees. There was no evidence before the Court which indicated a solicitor had been engaged and what costs had been incurred as a result.
53 As the plaintiff’s visa had expired before she submitted her application, she was not permitted to file the sponsorship/partner visa application. The application was before the Court and the deceased was the sponsor. The deceased stated in the form that he was the defacto partner of the plaintiff. He answered “yes” to the question: Do you and your fiancée or partner intend to maintain a lasting relationship? The form was signed by the deceased and dated 9 May 2012. The plaintiff’s evidence was that in support of the sponsor/partner visa application, the plaintiff was required to provide statutory declarations by supporting witnesses. Nameer Hurmiz, neighbour, and Colin Critchett, the deceased’s friend, provided these declarations which were before the Court.
54 Mr Hurmiz said his barbershop was next door to the fruit shop owned by the deceased. He sees them six days a week and always together. He had known the deceased for eleven years and the plaintiff for eighteen months.
55 Mr Critchett said he first met the plaintiff when she started helping the deceased with his business. He regularly sees one or both at them at the shop and usually talks to them. He believed the relationship between the plaintiff and the deceased to be genuine and continuing. He said he had known the deceased for twelve years and the plaintiff for fourteen months.
56 The plaintiff said the deceased provided her with money from the fruit shop which she would deposit into her Smart Access Account which was usually in the form of coins. The amounts were irregular and depended upon the profits from the fruit shop. The plaintiff referred to fourteen cash deposits made to her Smart Access account between 31 October 2014 and 30 April 2015, totalling $940.90. There was no independent evidence that these payments were money given by the deceased to the plaintiff.
57 The plaintiff relied on a letter dated 25 August 2015 provided by Dr Chin, the deceased’s general practitioner, confirming that the deceased had been his patient for the past twenty-five years, and suffered from insulin dependent Diabetes Mellitus. Further, the letter stated that for the past five years the plaintiff had been caring for the deceased including measuring his blood glucose and attending to his daily needs. I take the view that the general practitioner has noted what was reported to him. Further, the letter does not refer to the plaintiff as the deceased’s domestic partner or of the general practitioner being aware of a relationship between the plaintiff and the deceased.
58 The plaintiff deposed that the deceased’s health deteriorated dramatically in the last six months of his life and she provided around the clock care.
59 The plaintiff deposed that the deceased did not like openly discussing their relationship with other people. He was a traditional man and was embarrassed by the age gap. He did not want to be judged in the Brunswick area where he was a well-known fruiterer.
60 The plaintiff said that the deceased often told her he could not marry her because he did not want to upset his sons. He thought this was unfair and said she could leave whenever she wanted. She said she accepted the deceased was a traditional man and he never wanted to tell his children about her.
61 The plaintiff deposed that during the time she lived with the deceased, she did not see his sons often. She estimated they visited one to two times per year. The deceased told her that he missed having a relationship with his sons.
62 In 2013 and 2014, the plaintiff said she and the deceased spent Easter Sunday with the deceased’s brother, Peter, and his family, which she enjoyed. By Easter 2014, Peter had been diagnosed with cancer. On this occasion, she met deceased’s sister, Lina, and her husband, Jerry, who returned from Italy to spend time with Peter. She met Lina again when she returned from Italy to visit the deceased, who was diagnosed with cancer. At this time, they attended a Sunday mass together. Lina returned to Italy two days before the deceased died.
63 The plaintiff deposed that in 2015, the deceased was admitted to St Vincent’s Hospital. At the deceased’s request, she remained at his bedside during his hospital admission. The plaintiff said she was familiar with the staff at the hospital, who considered her to be the deceased’s defacto partner. The plaintiff relied upon a letter dated 5 January 2016 from St Vincent’s Hospital, Melbourne, which said:
“To whom it may concern,
Re: Access to Death Certificate
…
It was the treating teams and Social Work’s understanding that Ms Jun Lui was Mr Muraca’s de facto partner and that he expressed a wish for her to remain at his bedside during his hospital admission. We therefore support Ms Lui obtaining a copy of Mr Muraca’s death certificate to allow her solicitor to continue advocating on her behalf for access to housing and other essential services/supports. … .”
64 The plaintiff said while at the hospital, Tony, the deceased’s son, requested the deceased’s bankcard, telling her he would return it after he paid for some items. The card was never returned to her. A few days later, when she returned to the estate property where she had been living since 2011, she discovered all the locks had been changed. She was unable to collect her belongings and slept on the mattress at St Vincent’s Hospital.
65 The plaintiff said the deceased told her that his sons, Frank and Antonio, were plumbers and his son, Sam, was a commercial cleaner, all of whom were successful. She estimated that during the time she lived with the deceased his sons each visited the deceased once or twice a year. The deceased never visited them because he operated the fruit shop which was opened seven days a week.
66 The plaintiff said she met the deceased’s brother, Jim, and his wife, Katarina, shortly before the deceased’s death. Jim and the deceased reconciled during the deceased’s last days in hospital. The plaintiff said that after the deceased died, Jim and Katarina invited her to visit them at their family home, which she did about once a year after the deceased died, usually at Christmas time. The last time she saw them was in October 2018. She enjoyed spending time with them, but it made her sad, bringing back memories of the deceased.
67 After the deceased’s death, the plaintiff had to find alternative accommodation. She was referred to a women’s refuge, where she remained for approximately seven months. She found accommodation through WorkAway, an international hospitality service, which provided her with accommodation in exchange for her attending to household and domestic duties.
68 The plaintiff lodged an application for a protection visa with the Australian Government. The outcome of the application is still pending.
69 The plaintiff was not permitted to work in Australia. Initially she received a special asylum seeker allowance from Centrelink of $487 per fortnight. She had no assets, no savings and no financial security. She is reliant on all the services provided by AMES Australia, who assist new migrants settling in Victoria.
70 On 24 October 2018, the plaintiff was informed that her application for a protection visa was unsuccessful. She has appealed that decision and is currently waiting on a hearing date at the Administrative Appeals Tribunal. She understands the waiting time for the hearing of her appeal is likely to be lengthy.
71 Her Status Resolutions Support Services payment from Centrelink has changed from $570 per fortnight to $497.51 per fortnight.
72 In Court, the plaintiff said that the deceased told her he gave financial assistance to his three sons to purchase their first house. This arose when Tony and his girlfriend were living with them and the girlfriend wanted the deceased to assist them in purchasing a house. The deceased said he would not assist as it was not his responsibility.
Submissions of Counsel for the Plaintiff
73 The plaintiff submits that she was the deceased’s domestic partner for the purposes of s90 of the Act. Based on her evidence, she satisfies the matters set out in s35(2)(a)-(h) of the Relationships Act 2008 (Vic).
(a) The deceased instigated the relationship and invited the plaintiff to live with him. While he did not recognise the relationship publicly, he demonstrated his love for the plaintiff, including providing financial support. The plaintiff was committed to the relationship, despite the deceased’s reluctance to acknowledge her publicly. She supported the deceased, undertook domestic chores, assisted in the shop and cared for the deceased through several illnesses;
(b) The relationship commenced as a friendship, which developed into a romantic relationship, with the plaintiff being invited to live with the deceased, cohabitation which commenced in March 2011 and continued until the deceased’s death in November 2015;
(c) The plaintiff and the deceased lived in the deceased’s property;
(d) The plaintiff and the deceased shared a sexual relationship from January 2011;
(e) The deceased provided financial support to the plaintiff in the form of providing access to his bankcard for the purchase of groceries, clothes and household expenses. He gave her limited cash for her phone and internet bills. He paid her final semester fees at TAFE. The plaintiff provided household duties and limited work in the shop, based on her study commitments and limited English;
(f) The deceased encouraged plaintiff to live at his property;
(g) Not applicable;
(h) The deceased took the plaintiff to Easter celebrations at his brother’s house. The relationship between the deceased and plaintiff was supported by the neighbour and customer of the shop by means of statutory declarations.
Approach to the evidence
74 The evidence of the plaintiff is to be approached with caution given the inability of the Court to receive evidence from the deceased.[21] Further, as there was no appearance by the Estate, the plaintiff was not cross-examined. In addition, most of the plaintiff’s evidence was uncorroborated.
[21]
75 It should be noted that in such claims, the Court is reliant on supporting evidence to make determinations of eligibility in Part IV claims.
Credit of the Plaintiff
76 The plaintiff relied on the affidavits she filed with the Court. She gave oral evidence as to conversations she had with the deceased in relation to the assistance he provided to his sons in purchasing their first homes. The plaintiff answered questions with short responses, and rarely provided elaboration. On occasions, she required the question to be repeated. On occasions, it was hard to understand her response and she had to be asked to repeat her evidence.
77 The plaintiff was born in China. English was not her first language, however, there was no interpreter present. I formed the view that she was uncomfortable with the process, however, I accept that this was largely due to English being her second language. At times, the plaintiff’s evidence was inconsistent.
78 Overall, I accept that the plaintiff was forthright and answered questions to the best of her ability.
Was the Plaintiff the domestic partner of the deceased?
79 The relationship between the plaintiff and deceased commenced in March 2011 and concluded upon the deceased’s death in November 2015, a period of four years and eight months. I will now consider whether the plaintiff complies with any one or more of the matters set out in s35(2) of the Relationships Act 2008 (Vic).
(a) the degree of mutual commitment to a shared life
80 I take the view that there is limited evidence of a mutual commitment to a life together except for the plaintiff’s evidence that the deceased invited the plaintiff to live with him and that she supported the deceased, undertook domestic duties, assisted in the shop on occasions and cared for the deceased, performing nursing duties when he was ill.
81 The plaintiff’s evidence was that the deceased did not publicly acknowledge or formalise the relationship in his community, with his sons and only towards the end of his life, on a limited basis with his siblings. There was no supporting evidence from the deceased’s siblings nor was there any evidence to indicate that the plaintiff had attempted to obtain supporting evidence from them.
82 The plaintiff relied on a letter from the deceased’s general practitioner, Dr Chen, which outlines the plaintiff as the deceased’s carer. The letter from the general practitioner does not provide any evidence of a genuine domestic relationship between the plaintiff and the deceased.
83 The plaintiff relied on a letter from St Vincent’s Hospital which indicated that the deceased’s wished for the plaintiff to be by her bedside and that they understood the plaintiff to be the deceased’s defacto partner. This letter is of limited assistance in determining that there was a genuine domestic relationship. The letter was written after the deceased’s death for the purpose of the plaintiff obtaining access to the deceased’s death certificate.
84 I accept that in May 2012, the deceased was prepared to make an application for a partner/visa application on the basis of being the plaintiff’s defacto partner; however, the plaintiff was unable to make this application as her Student Visa had expired. There was no independent evidence before the Court of a solicitor being engaged or the fee for the application being paid. I accept that the visa application form was filled out by the deceased and the plaintiff.
85 There were two statutory declarations in support of the visa application which are very limited in supporting the plaintiff’s current claim. The first statutory declaration is by Hurmiz Nameer, who had a barber shop next to the deceased’s fruit shop. Mr Nameer’s declaration answered Question 4 as:
Question 4:“State whether you believe the relationship of the applicant and his/her partner to be genuine and continuing, and give your reasons for your belief?”
Answer:“See them six day[s] a week. Always together.”
86 The second statutory declaration in support of the visa application was by Mr Colin Derek Critchett, who stated that he first met the plaintiff fourteen months prior to making the declaration when she started helping the deceased with his business in Lygon Street. He stated that he regularly (every few days) sees either the plaintiff, the deceased or both at the deceased’s fruit shop and usually talks to them at this time. In answering Question 4, Mr Critchett stated:
Question 4:“State whether you believe the relationship of the applicant and his/her partner to be genuine and continuing, and give your reasons for your belief?”
Answer: “Yes, I do believe the relationship between Sam and Jun to be genuine and continuing.
I have known both Sam and Jun since the beginning of their relationship and I have seen the warmth and caring develop between them since this time. They are always together and are devoted and supportive.
They are both mature and dependable and there is nothing shallow or flippant about their committment (sic) to each other.”
87 The statutory declarations provided limited evidence of a genuine domestic relationship. These statutory declarations are distinct from the supporting affidavits which assisted Pagone J in Re: In the Estate of Sigg.[22] Based on the evidence, the deponents of these declarations did not interact with the plaintiff and the deceased outside of the fruit shop and their statements do not support the proposition that the plaintiff and deceased appeared to be in a domestic relationship or showed a mutual commitment to each other. This can be distinguished from evidence of family or friends who may have interacted with the deceased and plaintiff over a lengthy period of time and observed a mutual commitment to one another.
[22]Ibid
88 Further, both declarations were attested to in May 2012, and therefore could only relate to the period until May 2012. In addition, the statutory declarations were for the purpose of a partner/visa application and not the current proceeding.
89 The plaintiff’s evidence does not show that there was an intention for a shared life. There were no plans for their future together, nor was there any evidence that they discussed or made plans for a future together.
(b) The duration of the relationship
90 In November 2010, a relationship commenced as a friendship which developed into a romantic relationship in January 2011. In March 2011, the deceased invited the plaintiff to live with him at his property.
91 In considering the evidence as a whole, I accept the relationship commenced when the plaintiff started living with the deceased in March 2011. The duration of the relationship continued until his death in November 2015, a period of four years and eight months. On any view, a very short period.
(c) The nature and extent of common residence
92 The plaintiff lived with the deceased at the estate property from March 2011 until November 2015, when the locks were changed, preventing the plaintiff from returning to the estate property.
93 Some of the plaintiff’s bank statements were before the Court. Statements from December 2012 until December 2015 were addressed to the plaintiff at 436 Lygon Street, Brunswick East. I accept the statements are evidence that the plaintiff resided at the estate property. The plaintiff deposed that from the time she commenced the relationship, she assumed the role of domestic duties and carer.
(d) Whether or not a sexual relationship existed
94 The plaintiff’s evidence was that she shared a sexual relationship with the deceased from January 2011 up until his death.
(e) The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties.
95 The plaintiff’s evidence was that the deceased provided her with access to his bankcard and pin number and encouraged her to use whatever funds she required for payment of bills and for the purposes of purchasing groceries. Further, the plaintiff said that the deceased paid her last semester of study, which totalled $2,000. The plaintiff said she deposited the amount into her account and transferred the funds from her NetBank Saver account to her Smart Access bank account.
96 There is no evidence of when the deceased gave the plaintiff $2,000. There was no evidence of the deceased or the plaintiff depositing $2,000 into the NetBank Saver account. On 17 May 2013, $2,000 was transferred from the plaintiff’s NetBank Saver account to her Smart Access account. On the same day, being 17 May 2013, $2,000 was transferred from the plaintiff’s Smart Access account to a CBA account, “NetBank liuliu”. There was no submission about this transfer or where it was transferred. On 18 June 2013, there was a transfer from CBA Account “Jing Liang” of $2,000 to the plaintiff’s NetBank Saver account. There were no submissions made on this transfer. The bank records did not show a payment being made to the plaintiff’s TAFE of the fees.
97 I take the view that there is no corroborating evidence to support the plaintiff’s claim that the deceased paid the plaintiff’s last semester fees.
98 As at 1 July 2012, the plaintiff had $7,235.75 in her NetBank Saver account. By 23 December 2015, there was a credit of $47.48. The Bank statements confirm that the plaintiff regularly transferred amounts of money from the NetBank Saver account to her Smart Access account. The Smart Access account discloses that she was paying for day-to-day living expenses including supermarkets, telephone and internet bills.
99 In considering the evidence as a whole, I am of the view that the financial dependence or interdependence between the plaintiff and the deceased was limited.
(f) The ownership, use and acquisition of property
100 On the evidence of the plaintiff and based on the bank statements of the plaintiff, I accept the plaintiff resided at the estate property from March 2011 until her evidence that she was excluded from the estate property in late 2015.
(g) The care and support of children
101 This does not apply as there were no children of the relationship. I note that the deceased had adult children from his first marriage. The plaintiff does not have any children.
(h) The reputation and public aspects of the relationship
102 The plaintiff’s evidence was that the deceased did not disclose publicly his relationship with the plaintiff. He told the plaintiff that he could not marry her because of his sons and that she was free to leave at any time. She said he was embarrassed by the age difference, and his public reputation in the area.
103 On the evidence of the plaintiff, she had limited meetings with the deceased’s siblings. In 2013 and 2014, she attended lunch at the deceased’s brother Peter’s home. On the second occasion, Peter was very ill with cancer. She also met the deceased’s sister at the Easter lunch in 2014. Peter died soon after. She met the deceased’s other brother, Jim, while the deceased was in hospital prior to his death. She attended Jim’s house on two occasions following the deceased’s death. The last occasion was in 2018.
104 There was no evidence from the deceased’s siblings presented.
105 There was no evidence from the plaintiff that she acknowledged the relationship within her own family and friends. I accept that there was limited public recognition of the public aspects of the relationship both within the deceased’s community and his family.
Conclusion and orders
106 The evidence before the Court is the evidence of the plaintiff. There is no independent evidence which corroborates the plaintiff’s evidence. In considering the plaintiff’s eligibility, I take into account that:
(i) there was no independent evidence of the plaintiff and the deceased’s relationship being observed by others as a genuine domestic relationship;
(ii) there is no evidence that the deceased intended to provide for the plaintiff after his death. There is no evidence that the deceased and the plaintiff discussed any matters with regards to their future. Further, there was no evidence that the plaintiff and the deceased had a mutual commitment to a shared life;
(iii) the evidence before the Court shows limited financial dependence or interdependence. I accept that the plaintiff resided with the deceased, helped in the fruit shop and did not pay rent;
(iv) although the plaintiff gave evidence that she met the deceased’s siblings, there was no evidence from them before the Court. The evidence of neighbours was of very limited value as it was not indicative of observing a genuine domestic relationship. Further, the evidence of the neighbours was as at 2012.
107 Although there was no appearance for the Estate in this proceeding, the Court must have regard to supporting evidence in determining such applications. In this case, the plaintiff’s own evidence is not supported or corroborated by independent evidence.
108 In considering the evidence as a whole, the Court is not satisfied that the plaintiff has made a prima facie case that she was the deceased unregistered domestic partner at the time of his death. As the plaintiff was also not the deceased’s registered domestic partner at the time of his death, she does not meet the definition of “domestic partner” in s3(1) of the Act. I am satisfied that the plaintiff was not in a genuine domestic relationship with the deceased at the time of his death as that phrase is used in s 90 of the Act and s35(2) of the Relationships Act 2008 (Vic). As such, the plaintiff is not an “eligible person” for the purposes of s90A, and able to apply for family provision under Part IV of the Act.
109 Accordingly, I dismiss the plaintiff’s claim for provision from the deceased’s estate.
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