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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading M, S v The Public Trustee

Details

AGLC: M, S v The Public Trustee [2017] SASC 71
Case: [2017] SASC 71
Decision Date: 16 May 2017

CaseChat Overview and Summary

The case of M, S v The Public Trustee involved a dispute concerning the succession and family provision claims in relation to the estate of a deceased individual. The third plaintiff sought a declaration that she was the deceased's de facto spouse and, consequently, entitled to a share of his estate. The matter was heard in the Supreme Court of South Australia.

The primary legal issues the court had to address were whether the third plaintiff was the de facto spouse of the deceased, and if so, whether she was entitled to a family provision claim under the Family Provision Act 1975 (SA). The court needed to determine the nature of the relationship between the third plaintiff and the deceased, whether they had a de facto relationship, and if she was eligible for maintenance under the Act.

The court examined the evidence and found that the third plaintiff and the deceased had a de facto relationship. The court concluded that they had a close personal relationship, shared a home, and presented themselves to others as a couple. However, the court also found that the third plaintiff's claim for maintenance was not in the interests of justice as she had sufficient financial resources of her own. The court held that the third plaintiff's claim for a family provision order was not in the interests of justice as she had not demonstrated any need for maintenance from the deceased's estate.

The court dismissed the third plaintiff's application for a declaration that she was the deceased's de facto spouse and her claim for maintenance under the Family Provision Act 1975 (SA). The court found that the third plaintiff had not satisfied the requirements of the Act, and her claim was not in the interests of justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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: BOThe 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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