M, S v The Public Trustee - [2017] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
M, S & ORS v THE PUBLIC TRUSTEE & ORS
[2017] SASC 71
Judgment of Judge Bochner a Master of the Supreme Court
16 May 2017
SUCCESSION - FAMILY PROVISION - ELIGIBLE APPLICANTS - SPOUSE OR PARTNER
Family Relationships Act 1975 (SA) Declaration of domestic partnership. "Close personal relationship" "interests of justice".
Family Relationships Act 1975 (SA) s 11; Inheritance (Family Provision) Act 1972) (SA), referred to.
KQ v HAE [2006] QCA 489; Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677; Taddeo v Taddeo (2010) 269 LSJS 309; Re: Fagan (1980) 23 SASR 454; Vaher v Gibson [2008] SADC 75; R (Plaintiff) v Bong & Ors [2013] SASC 39, considered.

M, S & ORS v THE PUBLIC TRUSTEE & ORS
[2017] SASC 71

JUDGE BOCHNER. In this matter, the third plaintiff seeks a declaration that she was on 23 July 2015, the domestic partner of the deceased, within the meaning of s 11 of the Family Relationships Act 1975 (SA) (the FR Act).
The deceased died on 23 July 2015. He left a will dated 13 January 2011, in relation to which probate was granted on 28 October 2015. By his will, the deceased left the entirety of his estate in equal shares to four sporting organisations.
On 1 March 2016 two of the deceased’s three adopted children applied, pursuant to the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act), for provision out of his estate.
On 26 April 2016, the third plaintiff sought to be joined as a further plaintiff to this matter, on the basis that she had been, at the time of the deceased’s death, his domestic partner, within the meaning of the FR Act. The first and second plaintiffs did not accept that the third plaintiff was the deceased’s domestic partner; as a result, the application for such a declaration was listed for hearing as a preliminary point.
The Legislative Framework
While the FR Act was enacted in 1975, the amendments with which this matter is concerned were introduced in 2006. These amendments, amongst other things, changed the terminology in the FR Act (and other related Acts) from “putative spouse” to “domestic partner”. It changed the length of time that a relationship must subsist to be recognised a domestic partnership from five years, or an aggregate of five years over a total of six years, to three years, or an aggregate of three years over a total of four years. It introduced the notice of a declaration being made “in the interest of justice” where the temporal requirement was not otherwise met. It introduced criteria to be taken into consideration when determining whether or not a relationship amounts to a domestic partnership. The relevant sections of the FR Act now read:
11—Interpretation
In this Part—
"close personal relationship" means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—
(a)    the relationship between a legally married couple; or
(b)   a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind.
Note—
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
11A—Domestic partners
A person is, on a certain date, the "domestic partner" of another person if he or she is, on that date, living with that person in a close personal relationship and—
(a)    he or she—
(i)has so lived with that other person continuously for the period of 3 years immediately preceding that date; or
(ii)has during the period of 4 years immediately preceding that date so lived with that other person for periods aggregating not less than 3 years; or
(b)   a child, of whom he or she and the other person are the parents, has been born (whether or not the child is still living at that date).
11B—Declaration as to domestic partners
(1)   A person whose rights or obligations depend on whether—
(a)     he or she and another person; or
(b)     2 other persons,
were, on a certain date, domestic partners 1 of the other may apply to the Court for a declaration under this section.
(2)   If, on an application, the Court is satisfied that—
(a) the persons in relation to whom the declaration is sought were, on the date in question, domestic partners within the meaning of section 11A; or
(b)     in any other case—
(i)the persons in relation to whom the declaration is sought were, on the date in question, living together in a close personal relationship; and
(ii)the interests of justice require that such a declaration be made,
the Court must declare that the persons were, on the date in question, domestic partners 1 of the other.
(3)   When considering whether to make a declaration under this section, the Court must take into account all of the circumstances of the relationship between the persons in relation to whom the declaration is sought, including any 1 or more of the following matters as may be relevant in a particular case:
(a)     the duration of the relationship;
(b)     the nature and extent of common residence;
(c)     the degree of financial dependence and interdependence, or arrangements for financial support;
(d)     the ownership, use and acquisition of property;
(e)     the degree of mutual commitment to a shared life;
(f)     any domestic partnership agreement made under the Domestic Partners Property Act 1996;
(fa)    any Part VIIIAB financial agreement made under the Family Law Act 1975 of the Commonwealth;
(g)     the care and support of children;
(h)     the performance of household duties;
(i)      the reputation and public aspects of the relationship.
(4)   A declaration may be made—
(a)     whether or not 1 or both of the persons in relation to whom the declaration is sought are, or ever have been, domiciled in this State; or
(b)     despite the fact that 1 or both of them are dead.
(5)   It must not be inferred from the fact that the Court has declared that 2 persons were domestic partners 1 of the other, on a certain date, that they were domestic partners as at any prior or subsequent date.
(6)   For the purpose of determining whether a person was, on a certain date, the domestic partner of another, circumstances occurring before or after the commencement of this Part may be taken into account.
The effect of this legislative framework is that a person is entitled to apply to the Court for a declaration if his or her rights depend upon whether he or she was the domestic partner of another on a particular day. If the Court is satisfied that s 11A has been met (that is the relationship was of the duration specified, or there is a child of the relationship) the Court must make the declaration sought. Alternatively, if the relationship was shorter than the specified duration, and there is no child, the Court must still make the declaration if the parties were on the date in question living together in a close personal relationship and the interests of justice require the declaration to be made. Thus the time requirement may effectively be abrogated, where the relationship is found to exist and the interests of justice require the declaration to be made.
The ability to seek a declaration under s 11B is only triggered if the rights or obligations of the person seeking the declaration are dependent on that declaration being made. Thus, the rights of a person must be dependent on the legal recognition of their relationship with another person. This is a preliminary threshold to be met, before consideration of the nature of the relationship or the interests of justice is required.
In this matter, the Court is only concerned with s 11B; it is acknowledged that the relationship between the third plaintiff and the deceased did not subsist for the period of time prescribed in s 11A. The third plaintiff, however, contends that she and the deceased were, on the day of his death, living together in a close personal relationship, and that the interests of justice require that the declaration be made.
What is meant by the term “living together in a close personal relationship”?
This phrase, used in s 11B of the FR Act, has not previously been considered in contested litigation.
The intention behind the section was explained in the Bill’s Second Reading Speech.[1] The primary intention of the Bill was to afford recognition to same sex marriages; while doing so, it afforded broader recognition to couples who “share their home and their lives”.[2] It was intended to capture the relationship between:
2 adults who live together in an enduring personal relationship of mutual affection and support, whether or not the relationship is sexual.[3]
[1]    South Australia, House of Assembly, Parliamentary Debates (Hansard).
[2]    Ibid 1207.
[3]    Ibid 1207.
As to the role of the Courts, the following was said:[4]
If there is doubt about whether a relationship is a domestic partnership, the Bill provides for the courts to decide. The courts will take into account a list of factors similar to those that apply in other states; the ownership of property, the degree of financial dependence, the degree of mutual commitment to a shared life and other factors. It will also look at whether the parties entered into a domestic partnership agreement, which I will explain shortly. The relationship does not need to have all of the listed features to be recognised by the law as a domestic partnership, but the more it has, the more likely it is to be recognised. Moreover, the Bill also proposes to allow the courts, where the interests of justice require this, to recognise a relationship that would be a close personal relationship but for falling slightly short of the time requirement.
[4] Ibid 1207.
While s 11B has never been specifically considered, the approach taken by the authorities to other similar pieces of legislation is instructive. In KQ v HAE,[5] the Court, in considering whether the applicant and respondent were in a de facto relationship, acknowledged that there was no precise test for the existence of a de facto relationship; the ultimate question was whether they were living together on a genuine domestic basis. A de facto relationship will only be established if it can be seen that:
The parties have so merged their lives that they were, for all practical purposes, living together as a married couple.[6]
[5] [2006] QCA 489.
[6] Ibid [19].
In particular, the Court said that a de facto relationship will not exist where the parties have never lived together. In addition, the existence of a sexual relationship,[7] or the fact that the parties intended at some point eventually to marry[8] do not of themselves justify the conclusion that the parties were in a de facto relationship.
[7] Ibid [18].
[8] Ibid [20].
In Simonis v Perpetual Trustee Co Ltd,[9] the Court held that to establish that the plaintiff was living with the deceased as husband on a bona fide domestic basis, there must be evidence of a significant relationship and a shared life:
They must live together not merely as two people living in one house but as husband and wife.[10]
[9] (1987) 21 NSWLR 677.
[10] Ibid 683.
In Taddeo v Taddeo,[11] Judge Nicholson, as he then was, discussed the notion of a mutual commitment to a shared life:
The point was taken up by the Attorney General in his second reading speech where he referred to the notion of “life-partner relationships”, a “degree of mutual commitment to a shared life” and the intention to capture two adults who live together in “an enduring personal relationship of mutual affection and support”.
Finally with respect to general approach, in my view, it is not necessary to find at the outset of a relationship a mutual intention that it is to be a “life partner” relationship or an “enduring personal relationship of mutual affection and support” although, in the case of the search for a de facto relationship, for example, this may be of significance. Relationships develop over time. The search is for a relationship that, as it existed over time, manifested such characteristics.[12]
[11] (2010) 269 LSJS 309.
[12] Ibid 530.
What does all of this mean when determining whether two people are living, or have, at some stage lived together in a close personal relationship?
The intention of the legislation is to recognise genuine relationships between two people who have made a commitment to, and are in fact, sharing their lives. It is to recognise significant lasting relationships. In determining whether such a relationship exists, no one factor will be decisive; it will be the totality of the relationship that gives it its character. In examining the relationship, the Court must consider the factors set out in s 11B(3) so far as they are relevant. The existence or otherwise of a sexual relationship will not, of itself, be determinative, nor will an intention to marry. The relationship as a whole must be examined to determine its true character. While the authorities referred to above deal with different legislation and different terminology (including de facto partners) they are looking to define a relationship that is long-lasting, committed and serious. Their approach is instructive.
Interests of Justice
How should the interests of justice be taken into account, when determining whether such a declaration should be made? In this regard, the Second Reading Speech provides little guidance as to the intention of Parliament, save to say:
the Bill also proposes to allow the courts, where the interests of justice require this, to recognise a relationship that would be a close personal relationship but has fallen slightly short of the time required.
This appears to envisage that the operation of the interests of justice may be limited to cases where the relationship has subsisted only slightly less than the required three year period; where the duration of the relationship is substantially less than this, the interests of justice consideration has no role to play.
I do not consider that s 11B on its face is so confined. Section 11B requires the Court to take into consideration a range of separate factors, the duration of the relationship being only one of them. There is nothing to suggest, that, for the purposes of s 11B, the duration of the relationship should take on any more significance than any of the other factors listed in s 11B(3), or indeed, “all of the circumstances of the relationship between the persons in relation to whom the declaration is sought”.[13]
[13] s 11B(3).
I further note that s 11B(3) does not specify whether the matters set out therein are to be taken into consideration when determining whether the two persons were living together in a close personal relationship pursuant to s 11B(2)(b)(i), or when determining whether the interests of justice require the declaration to be made pursuant to s 11B(2)(b)(ii). In the absence of any limiting words, I am of the view that the factors should be examined when considering both limbs of s 11B(2)(b). This is consistent with the FR Act’s requirement that the totality of the relationship be taken into account when determining its true nature. It seems to me, in any event, that the various considerations in relation to each limb would, in the majority of cases, be similar or complimentary.
When the interests of justice require that such declaration be made will depend very much on the circumstances of the case. Clearly, this requirement was not inserted into the FR Act merely to “get around” the temporal requirement in s 11A. If this were the case, there would be little point in having a temporal requirement at all.
The Appropriate Onus
As to the onus of proof in this matter, I am of the view that the appropriate onus is on the balance of probabilities. In reaching this conclusion I rely on the decision of Jacobs J in Re: Fagan[14] where he said:
I venture to think that the proper standard of proof is that which is enunciated in Briginshaw v Briginshaw, proof on the balance of probabilities but with due regard to the gravity of the consequences of making the declaration sought.
[14] (1980) 23 SASR 454.
This was adopted by the Court in Vaher v Gibson[15] where it was said:
The Applicant must prove, her entitlement to the declaration, on the balance of probabilities “but with due regard to the gravity of the consequences of making the declaration sought …” (see In re Fagan, Deceased[16]; see also Briginshaw v Briginshaw[17]).
[15] [2008] SADC 75.
[16] (1980) 23 SASR 454 at 464
[17] (1938) 60 CLR 336
I further note the statement in R (Plaintiff) v Bong & Ors[18] (Bong), where it was said:
Unlike earlier versions of the FRA, it does not appear that corroboration either generally or in relation to particular aspects of the application, is required.[19]
[18] [2013] SASC 39.
[19] Ibid [11].
Thus, the standard of proof is the balance of probabilities, and no corroboration is required by the FR Act.
The Evidence
The third plaintiff gave evidence in support of her application, as did her adoptive father and her Parish Priest. The first and second plaintiffs called the deceased’s brother and the bequest officer of the third defendant.
So as to ensure the confidentiality of the parties in accordance with s 13 of the FR Act, the witnesses will be described by the following initials:
·the third plaintiff’s adoptive father: F
·The Parish Priest: PP
·The deceased’s brother: DB
·The bequest officer: BO
The Third Plaintiff’s Evidence
The third plaintiff told the Court that she was born in 1965. She has one sibling, a brother approximately 6 years younger than herself. Her father died in 1978, following which her mother remarried F in 1980 or 1981. Throughout these reasons I will refer to F either as F or as the third plaintiff’s father. In May 1982, the third plaintiff’s mother died in a car accident. At the time of the accident, the third plaintiff, her brother and F were also in the vehicle. As a result of the accident, the third plaintiff suffered partial frontal lobe brain damage, which has left her with a residual partial paralysis on her left side, a permanently dilated left pupil, headaches and short term memory problems and poor motor skills. She does not use a computer or a mobile phone. She does not use credit cards or debit cards as she is unable to remember the numbers; for banking, she uses a passbook.
The third plaintiff said that she first met the deceased some years ago, however, their friendship was not more than that of casual acquaintances until a meeting at the Marden Shopping Centre in January 2014. She said that immediately after their first date on 8 January 2014, they commenced living together as domestic partners. They remained living together on this basis until his death on 23 July 2015. From January 2014 until 23 July 2015, the only times they did not live together were when the deceased was in hospital during which periods the third plaintiff stayed with F.
The third plaintiff’s evidence was that she and the deceased first discussed marriage in late January 2014. She was first introduced to others by the deceased as his fiancée in late January or early February 2014.
As to their living arrangements, the third plaintiff said that they lived together in the deceased’s house at Glynde. Prior to commencing their relationship, she had lived with her father and brother in a property at Beaumont, in the house in which she had in fact lived since 1978. On moving to the Glynde property, she moved:
some of my clothes, not all my clothes, some art and over time furniture, nothing major.[20]
[20] T18.4.

As to keys, the third plaintiff said that she had “access” to the keys of the Glynde property, and that she did not retain keys to the Beaumont property. She continued to visit her father and brother at the Beaumont property:
Yes, I’d go see them. I’d either change clothes, pick up different items of clothing. I’d check that they hadn’t killed each other and the house was still standing. I’d pick up my bank book, do my banking, take my bank book back home.[21]
[21] T19.38.
The third plaintiff gave evidence that she holds a class 4 firearms licence, and owns a number of firearms. During the duration of her relationship with the deceased, she kept her firearms at the Beaumont property, as they needed to be kept securely pursuant to the provisions of the Firearms Act 1977 (SA). There were no such facilities at the Glynde property. Indeed, the third plaintiff told the Court that the deceased was not aware that she had a firearms licence until shortly before his death:
I'd have to have a safe or similar item at [the deceased’s] place. I'd have to notify the Firearms Branch, and [the deceased] wasn't aware I had a firearms licence until approximately two months before his death when he asked me where I was going on Wednesday morning early because I had to get home to pick up dad and the firearms and go up to the club.[22]
[22] T49.
As to their day to day life together, the third plaintiff described various social gatherings with her father and brother. She and the deceased would watch television together, and they would rest together when they would go to bed and hold hands.[23] They would go to the movies, attend church, garden and go shopping together. They spent Christmas 2014 together at the Glynde property, with the third plaintiff’s father and brother.
[23] T49.
The third plaintiff also described how the deceased taught her to care for him when he had a seizure as a result of his condition paroxysmal dystonic choreoathetosis.[24]
[24] T22.
In relation to marriage, the third plaintiff told the Court that she and the deceased first discussed marriage in late January 2014, shortly after the commencement of their relationship. Their intention was to marry in October 2014 and honeymoon on the Ghan. They discussed their plans to marry with the priest of their parish however these plans were changed when the deceased was diagnosed with oesophageal cancer in October 2014.
They did not formally announce their engagement, nor did they hold an engagement party. However, the deceased placed a notice in The Advertiser on Valentine’s Day in 2014, expressing his love for the third plaintiff.
The wedding they had discussed was a simple church service followed by a simple reception.
After the deceased had undergone treatment for his cancer, he and the third plaintiff undertook pre-marriage counselling in May to June 2015. They then met with PP on 9 July 2015 to discuss their marriage. The last time they discussed marriage was the day before the deceased died. On this day, the deceased asked PP to prepare both a wedding and a funeral for him.
As to their financial arrangements, the third plaintiff told the Court that at the commencement of their relationship, both she and the deceased were on disability support pensions. She told the Court that during the duration of their relationship, neither she nor the deceased advised Centrelink that they had commenced living together. After his death, the third plaintiff attended Centrelink to report his death, and at that time disclosed that they had been living together. She told the Court that she was penalised for failing to disclose their cohabitation.
When discussing payment of household expenses, the third plaintiff said that she paid for the household groceries and the deceased met all the other household expenses, save for a small contribution to bills:[25]
if it was $155.70 for a bill, one of the utility bills, I would pay the $5.70 towards it.
[25] T49.
She gave evidence that in April 2015, the deceased arranged for her to operate his bank accounts to pay bills while he was in hospital. They attended the bank in person to fill out the necessary forms to do this.
A number of documents were tendered by the third plaintiff. In particular, a notebook entitled “My Journey Through Cancer” was tendered.[26] While only one entry was made by the deceased, it reads in part:
Lucky I have an understand (sic), loving and supportive partner. [The third plaintiff] is a saint. She does endless jobs and running around for me! She’ll be surprised this afternoon when she comes around that I head it off at the pass.
[26] P7.
This entry is dated 15 November 2014.
In addition, the third plaintiff tendered a number of Christmas cards which, she says, go to the nature of her relationship with the deceased. In these cards, they are clearly recognised as being together.
Finally, the third plaintiff gave evidence that the deceased had a safe deposit box at Bank SA. When it was opened by the Public Trustee after his death, it was found to contain an envelope containing a crucifix and a chain, and two crosses and two chains. The deceased wanted the third plaintiff to have them after his death.
Before I deal with the third plaintiff’s cross-examination in any detail, let me say at the outset, that at times her answers to questions were less than satisfactory. When challenged, she had a tendency to claim that she could no longer remember things and when questioned about this, she blamed any deficiency on her injuries sustained in the car accident. While memory loss may indeed be a feature of the injuries sustained by her, I am unable to reach this conclusion in the absence of any medical evidence. A clear example of this is in relation to the contents of the safe deposit box. When it was put to her that her oral evidence conflicted with an affidavit filed by her in Magistrate Court proceedings,[27] her answers became evasive and unhelpful. A further example is in relation to the penalty imposed by Centrelink for her failure to notify them that she and the deceased were living together. On further questioning as to whether she was penalised, she said:[28]
[27] Tendered as R15.
[28] T114.7-36.
Q.Yesterday in the course of your evidence you said that Centrelink had penalised you. Do you recall saying that.
A.    Yes.
Q.    How did Centrelink penalise you.
A.    I believe they suspended my pension.
Q.    For how long.
A.    I have no idea.
Q.    What was the reduction in the pension that you suffered.
A.    I have no idea.
Q.    Was there any fine or other imposition on your pension caused.
A.    I was told there was going to be but I don't know if there was.
Q.    Who told you that.
A.    Centrelink.
Q.    Who at Centrelink.
A.    I have no idea. Somebody at the front counter.
Q.    So you can't tell her Honour whether you were penalised.
A.    No.
Q.    You can't tell her Honour the period for which you say you were suspended.
A.    No.
Q.And you can't tell whether any other action by way of imposition was taken in relation to you.
A.    No, not without looking at the documentation.
Q.    Did your pension go down.
A.    I have no idea, I'm sorry.
Q.    You don't know that either.
A.    No.
In fact, the documents tendered[29] tend to suggest that no penalty was imposed, save for a 2 week suspension of her pension, followed by its reinstatement and back payment in full.
[29] R26.
In cross-examination, much was made of the third plaintiff’s failure to notify any public institutes or banking authorities that she had changed her address to the Glynde property. Indeed, the third plaintiff acknowledged that she did not tell her bank, the Registrar of Firearms, or the Registrar of Motor Vehicles that she had changed her address. In relation to the Registrar of Firearms, she gave a somewhat confused explanation:[30]
Q.Did you ever tell the firearms branch that you were no longer resident at Beaumont.
A. The firearms branch were aware I was no longer resident at Beaumont.
Q. How were they aware of that.
A.I informed them after [the deceased] and when I asked the gentleman that works at firearms regarding the disclosure of my licence and he said that only the judge should be shown the licence.
[30] T105.22-30.
She then went on to say that she believed she was allowed to spend up to 18 months away from her firearms.
In relation to the banking institutions, she said the following:[31]
Q.    Why did you sign a form after April 2015 that did not have your address on it.
A.[The deceased] and I weren't married. I didn't realise I had put [the deceased’s] address down.
Q.    What's not being married got to do with it.
A.    Well, that's when you change your addresses and your name.
Q.    You only change your address when you get married, is that your evidence.
A.    That's my understanding. I wasn't aware that you could do it otherwise.
[31] T116.25-35.
This evidence appears somewhat disingenuous.
In relation to the Registrar of Motor Vehicles and Centrelink her evidence was that she was not aware of the need to notify them of her change of address.
Generally, I found the third plaintiff’s explanations on the question of notifying institutions of her changed residence to be evasive and unconvincing.
Further, the third plaintiff’s answers to questions relating to the Notice to Produce were evasive and obstructive:[32]
[32] T64.5-32.
Q.Did you produce all of the statements for the Big Sky Building Society account to your solicitors.
A.    I supplied my solicitors with all the statements that they requested for Big Sky.
Q.    So you say you supplied them with all the ones that they requested.
A.    Well, I assume it was them that requested it.
Q.Looking at this document, these are the documents that have been produced in accordance with that list by your solicitors for the Big Sky Building account.
A.    Yes.
Q.    You'll see the first page states that it begins on 1 July 2013.
A.    Yes.
Q.    And then it goes to end date 30 June 2014.
A.    Yes.
Q.    Then looking at the second page it goes from 1 July 2015 to 30 September 2015.
A.    Sorry, second page?
Q.    1 July 2015 to 30 September 2015.
A.    Yes, sorry.
Q.    And so on up to 31 March 2016.
A.    Yes.
Q.You have not produced statements for the period 1 July 2014 to 30 June 2015 for the Big Sky Building Society, have you.
A.I have no idea. I'm afraid I can't help you. I think it's not actually a monthly account.
The third plaintiff’s evidence was generally unsatisfactory. When challenged in relation to topics addressed in examination-in-chief, she became evasive and obstructive. This has led me to form the view that while there is no need pursuant to the FR Act for corroboration of evidence, I would be reluctant to accept her evidence without independent corroboration.
PP
The third plaintiff called PP. PP is the parish priest at the church where the deceased was a parishioner. His evidence was largely uncontroversial. His evidence was to the effect that during 2014 it was clear that the deceased and the third plaintiff were in a relationship. He said that he had conversations with them both about their developing relationship. He also had a private conversation with the deceased about marriage with the third plaintiff.[33] On checking his diary, he was able to confirm that his first meeting with them together to discuss marriage was on 27 April 2015.
[33] T152.
As to whether they were living together, PP said the following:[34]
Q.Did you make any observations or were you told anything by either [the third plaintiff] or [the deceased] or both of them as to where they were then living, one or other of them.
A.[The deceased] was clearly living in his home. [The third plaintiff] - my impression was that [the third plaintiff] was caring for him both in terms of medication because they talked about medication, she was taking out his washing because they talked about, if I remember rightly, having had a fight over the washing and the washing line and something else about that. And the conversation included their sleeping arrangements. As a pastor of a Christian church I don't encourage sexual relationships outside marriage and so that was an uncomfortable conversation where the fact that they were sleeping in the same bed was made obvious.
[34] T153.27-154.3.
He confirmed the conversation he had with the deceased the day before he died, where the deceased told PP he would need to prepare for a wedding and a funeral.[35]
[35] T156.
F
F told the court that the third plaintiff commenced living with the deceased in January 2014. His evidence was that initially the third plaintiff and the deceased kept their relationship a secret to the point that he did not know where she had gone or who she was with. This period of secrecy lasted until about late January 2014, despite F’s asking her where she had been and with whom. In this regard, he said:[36]
Q.    She was living with this man who she had effectively just formed a relationship with.
A.    That's right. They weren't juniors.
Q.    Had you spoken to her about that.
A.She was almost 50. It wasn't my position to tell her how to live her life…
[36] T182.20-25.
After this time, F said the third plaintiff only slept at “home”, that is at the Beaumont property, when the deceased was in hospital.[37] Nonetheless, she was there regularly, to attend to her firearms, collect clothes and exchange cars with him or her brother.
[37] T181.
F said that he first became aware of their intention to marry in January 2014. His evidence on this point is instructive:[38]
[38] T184.28-185.21.
Q.    How long after that before she said they were thinking about getting married.
A.    As soon as it was no longer a secret, which was in the January.
Q.    So still in the January.
A.    Yes, still in the January.
Q.    And did [the deceased] say anything to you at this stage.
A.Yes, I was quite aware that he had fond feelings for her. He said to me at the February jumble mart where they met - I had gone there because, you know, [the third plaintiff] would be there and he told me then. He thought she was somebody very special. I said 'You better believe it', because I wouldn't have him thinking anything different.
Q.    Did he say then that they were getting married.
A.    Yes - well, he led me to believe that that would be the case.
Q.    How.
A.I don't know. It was his manner, the way he spoke. I think by that time I'd heard that he was introducing [the third plaintiff] as his fiancée and that is usually a good sign that that's his intentions.
Q.    Who had you heard that from.
A.    From [the third plaintiff].
Q.    Not anyone else.
A.    No.
Q.And just from the way he held himself you thought he was going to marry [the third plaintiff].
A.    Yes. They were very close. They were inseparable, yeah.
Q.    But he didn't say anything to that effect, did he.
A.    I really can't remember to the point of definitely saying that that was the case but –
This is just one example where F expressed views based only on the third plaintiff’s report to, and on assumptions made by him.
As to when the deceased first discussed marriage with him, F’s evidence was somewhat confused. Initially he said this first occurred in March,[39] however later he said that this occurred on the first Friday in February 2014.[40] The impression formed from F’s evidence was that he obtained the majority of his information about the relationship from the third plaintiff, and also tendered to make assumptions based on observations.
[39] T186.
[40] T189.
Significant time was spent with F in relation to his visits to Centrelink with the third plaintiff after the deceased’s death. He was adamant in his evidence that she told the Centrelink staff member assisting her that she and the deceased had been living together. Again, F’s evidence was somewhat confused, particularly in relation to whether the third plaintiff advised Centrelink of the length of their relationship:[41]
[41] T205.13-206.9.
Q.She didn't tell the man how long she'd been living together with [the deceased], did she.
A.    She gave him an idea of how long it was.
Q.    Well, what did she say.
A.    18 months, I think.
Q.    You don't recall what she said on that occasion, do you.
A.    Not - not exactly but that was what I understood from her.
Q.    She didn't say anything about 18 months, did she, on that occasion.
A.    I'd have no idea but as far as I was concerned she said it.
Q.    Well, what do you mean by that, 'as far as you were concerned'.
A.Well, she was explaining to the chappy exactly what her situation was, otherwise she wouldn't have had his card or anything else.
Q.She didn't say to the man that she'd been living with [the deceased] for 18 months, did she.
A.    I thought she did.
Q.    Well, why do you think that she did.
A.    Well, she had no reason to alter it in any way.
Q.    You're just guessing now, aren't you.
A.    Guessing? Well, I had a fair idea how long she'd been there.
Q.    My question is -
A.    And I would have assumed that would be a correct answer.
Q.My question is do you remember your daughter saying to the man that she had been living together with [the deceased] for 18 months.
A.    As far as I can remember.
Q.    So you do definitely recall that now being said.
A.    Yes.
Later, in relation to a later visit to Centrelink, he said the following:[42]
[42] T211.1-22.
Q.Earlier in the telephone call, what had she told the Centrelink officer, what did you hear.
A.Her answering questions from the Centrelink person. As I say, I really couldn't get involved in the conversation except that she was giving the details that I would have expected her to give.
Q.    What was that detail.
A.    I couldn't remember.
Q.    You don't really have any memory of this conversation, do you.
A.    Yes, I do.
Q.    Well, tell the court what your memory of it is.
A.    I think I have.
Q.[The third plaintiff] didn't say anything about the period of time she'd been living with [the deceased], did she.
A.    Of course she did.
Q.    Well what did she say.
A.    That she'd been living with [the deceased] for 18 months.
Q.    So she used the 18 months period of time again.
A.    Yes.
Q.    You're absolutely certain of that.
A.    Well, as far as I remember she did.
This evidence has led me to conclude that at times F has inferred certain things, either from the context of a conversation, or from what he assumes might or should have been said, rather than giving evidence of actual observed events and conversations. In relation to the deceased’s Centrelink card, F gave the following evidence:[43]
[43] T213.10-36.
Q.To go back to one of your earlier answers, you didn't see anyone at Centrelink destroy [the deceased’s] card, did you.
A.You can't see what somebody does on a counter but I have seen so many times banks had cut the card that it was quite visible what he did, his action was that he destroyed the card.
Q.    Again, I ask you, did you see him destroy the card.
A.I could see the actions of him destroying the card, I don't know that he actually destroyed but I should think he would have.
Q.    So, you have just surmised that he destroyed the card.
A.    All right, if that is the way you like to talk, but I saw him destroy the card.
Q.    Because you know how Centrelink operates, they always destroy the card, don't they.
A.    No, I have never seen them destroy a card before.
Q.    You have never seen them destroy a card before.
A.    No.
Q.But you are quite happy to come along and tell her Honour, well, that is what happened, the card was destroyed.
A.Well as far as I was concerned that is what he did, he took the card to the counter. They normally go to a counter where there is a supervisor and that is what I assumed he did, I am very sorry if it is not exactly what he did but I don't think they leave cards lying around so people can pick them up and use them.

This evident confusion of F, his tendency to infer things from the context, and what appears to me to be reconstruction of conversations on the basis of what he thinks should have been said, leads to the conclusion that F’s evidence is not reliable, in the absence of corroboration.
The first and second plaintiffs called two witnesses the deceased’s brother and the bequest co-ordinator at the Port Adelaide Football Club.
I did not find their evidence to be particularly helpful.
DB
DB clearly had almost no relationship with the deceased from 2007 until his death. It appears that there was only one significant conversation between them during that period, when the deceased was in hospital in February 2015. DB says at that time the deceased did not mention the third plaintiff at all. He also gave evidence as to the frequency with which he observed the third plaintiff’s car outside the deceased’s house.
I do not set much store by this evidence. DB accepted that he did not have a close relationship with the deceased and I am of the view that nothing can be inferred from the deceased’s failure to tell DB about his relationship with her during a hospital visit. As to the frequency of which he noticed a particular car being outside the house, I am of the view that this indicates nothing about the frequency or duration of the third plaintiff’s visits.
BO
As to BO’s evidence, again I have formed the view that it is of little assistance, given the nature of his relationship with the deceased. They met rarely and did not have a close relationship. Nothing can be inferred from the deceased’s failure to tell BO that he was intending to marry the third plaintiff. BO was able to provide no assistance on the question of whether the third plaintiff and the deceased were living together. The observations that he made of the bedroom during his last visit to the deceased do not assist in this regard.
Were the decease and the third plaintiff living together in a close personal relationship at the time of his death?
I have concluded that the deceased and the third plaintiff had discussed marriage, and intended to get married at some point. I accept the evidence of PP that he had conversations with both to this effect. In addition, their attendance at pre‑marriage counselling supports this conclusion.
As to the factors set out in s 11B(3) of the FR Act, clearly subparagraphs (f), (fa) and (g) are not relevant.
The evidence does not support any finding of financial dependence, interdependence of arrangements for financial support (s 11B(3)(c)) or the joint ownership, use and acquisition of property (s 11B(3)(d)).
There has been no evidence as to the performance of household duties (s 11B(3)(h)), save that the deceased and the third plaintiff enjoyed gardening together.
As to s 11B(3)(a), that is, the duration of the relationship, it is clearly a short relationship, indeed only about half of that which is required for a finding of domestic partnership pursuant to s 11A.
As to the nature and extent of common residence, I am not, despite the evidence of the third plaintiff and F, persuaded that the third plaintiff and the deceased lived together as the third plaintiff described. In reaching this conclusion, I have taken into account the following facts:
1The third plaintiff never moved all of her belonging to the Glynde property, only “some of my clothes, not all of my clothes, some art and over time furniture, nothing major”.[44]
2The deceased never gave her a set of keys to the Glynde property; she only ever had “access” to the deceased’s keys.
3She left her bank books at the Beaumont property, and every time she needed to go to the bank, she returned to get them. This is particularly telling given that she does not use a debit card, a credit card, internet banking or telephone banking.
4Throughout her evidence, she referred to the Beaumont property as “home” and the Glynde property as “[the deceased’s] house”.[45]
5The third plaintiff advised no public authorities that she had moved her residence despite a legal obligation to do so.
6She advised none of the institutions with which she banked that she had changed her address. Indeed, she gave evidence that in April 2015 she allowed a bank employee to record her address as the Beaumont property, without demur.
7The deceased, in his journal entry of 15 November 2014, says in relation to the third plaintiff “this afternoon when she comes around…”. This is not the language of two people living together.
8There were aspects of the third plaintiff’s evidence that were highly unsatisfactory, in particular in relation to her being penalised by Centrelink, the Bank SA safe deposit box, and the notice to produce. She left the impression that, whether deliberately or inadvertently, she was seeking to mislead the Court on these issues.
9She called no corroborative witnesses except her father, whose evidence was also unsatisfactory.
[44] T18.4-6.
[45] See for example T27.28, T32.19, T37.8-14 and T49.3.
As to whether there was a mutual commitment to a shared life, I accept that the third plaintiff and the deceased intended to get married. Other than this, however, there is no evidence of a mutual commitment to a shared life. I note, in particular, that the deceased did not give her a set of keys to the Glynde property. The third plaintiff did not tell the deceased of her interest in shooting, although her membership of a pistol club is clearly an important aspect of her life. These incidents are indicative of a limited commitment on the part of each of them.
As to the reputation and public aspects of the relationship, the evidence in this regard is scant. The tendered Christmas cards do no more than indicate that the deceased and the third plaintiff were in a relationship, but say nothing about the nature of that relationship. Indeed, BO gave evidence to the effect that he only included her name in the Christmas card to do “the community thing”.[46] Other than PP, no independent evidence was called to depose to the public nature of the relationship.
[46] T280.11.
Taking into account all of these factors, as well as the evidence given of the relationship as a whole, I am not satisfied, on the balance of probabilities, that the deceased and the third plaintiff were living together in a close personal relationship, as required by s 11B(2)(ii). I accept that they were in a romantic relationship, that they spent significant time together, and that they had discussed marriage. I accept that, towards the end of the deceased’s life the third plaintiff provided some care to the deceased. There is not sufficient evidence to allow me to conclude that their relationship had the hallmarks of a couple committed to each other on an enduring basis, such that it could be characterised as one where they were living together in a close personal relationship.
The Interests of Justice
Even if I were to find that the third plaintiff and the deceased were, on the date of the deceased’s death, living together in a close personal relationship, I am not persuaded that the interests of justice require that a declaration of domestic partnership be made.
I heard arguments from the parties as to the meaning and effect of the interests of justice requirement. Counsel for the third plaintiff contended that, if there was a finding that the deceased and the third plaintiff were in a close personal relationship, the interests of justice must require such a declaration to be made so as to allow the third plaintiff to make a claim under the IFP Act. The first and second plaintiffs, on the other hand, said that this is a circular construction of the Act, which would rob the temporal requirement in s 11A of any work to do. In this regard counsel, Mr Ower SC, referred to the decision of Judge Burley in Bong,[47] where he examined the totality of the relationship in determining where the interests of justice lie.
[47] [2013] SASC 39 at [43]-[48].
I do not accept the third plaintiff’s argument that once a finding is made that two people were living together in a close personal relationship, the interests of justice must demand that the declaration be made. If this were the case, it would, in fact, make redundant the interests of justice requirement as well as the temporal requirement as contended for by Mr Ower. If the interests of justice require the making of the declaration in every such case, s 11B(2)(b)(ii) serves no useful purpose. The logical conclusion of such a construction is that in every case where two people have lived together in a close personal relationship, regardless of the duration of the relationship, the Court must make the declaration sought. This effectively makes redundant both the temporal requirements of s 11A and the interests of justice requirement in s 11B(2)(b)(ii).
From this I draw the conclusion that there must be some additional factor or consideration in regard to the relationship in question which makes the declaration in the interests of justice. The mere fact of the relationship is not sufficient; nor is the third plaintiff’s desire to make a claim under the IFP Act. There must be something about the relationship itself which sets it apart. Indeed, the need for the declaration to enable the third plaintiff to make a claim under the IFP Act is nothing more than a threshold test to allow the application to be brought.
I accept that there may be many instances where the interests of justice would require the making of the declaration once the relationship has been proven.
In Bong, for example, having found that the required relationship existed, Judge Burley examined the relationship. He took into account the very significant duration of the relationship (thirty eight years), the plaintiff’s “willingness to look after the deceased in a concerted manner”,[48] and the fact that the defendants to the plaintiff’s IFP Act claim clearly accepted the relationship between the plaintiff and the deceased, as evidenced by their resolution of his claim in anticipation of the declaration being made. As a result he found that it was in the interests of justice that a declaration be made.
[48] [2013] SASC 39 at [45].
Even if I were to accept that the third plaintiff’s relationship with the deceased amounted to the required relationship, there is nothing before me to suggest that there was anything special about the relationship despite its short duration, to require the declaration to be made. There is no evidence, for example, that the third plaintiff provided any significant degree of care to the deceased during his illness. There is no evidence to suggest that she acted to her detriment in furtherance of the relationship, for example by giving up employment, accommodation or some other benefit in order to spend her life with the deceased. Indeed, the evidence suggests that the third plaintiff made very little alteration to her life after the commencement of the relationship, and indeed, made no changes to her life, or contributions to the deceased’s life such as would require the declaration to be made in the interests of justice. In saying this I do not intend to denigrate the relationship that they had, but merely to highlight the fact that there is no evidence to support the position that the declaration should be made despite the relationship’s short duration.
In the circumstances, the third plaintiff’s application must be dismissed.