Myers v Registrar of Births, Deaths and Marriages

[2021] NSWCATAD 300

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Myers v Registrar of Births, Deaths and Marriages [2021] NSWCATAD 300

Hearing dates:

On the papers

Date of orders:

19 October 2021

Decision date:

19 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter.

(2)   The decision of the Registrar of Births, Deaths and Marriages to refuse to amend the Register is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Administrative Review – review decision of Registrar of Births, Deaths and Marriages not to amend particulars of death to show that deceased did not have a de facto partner – meaning of de facto partner – s 21C of the Interpretation Act 1987 – consideration of whether deceased had a de facto partner - decision of Registrar affirmed.

Legislation Cited:

Administrative Decisions Review Act 1997

Births, Deaths and Marriages Registration Act 1995

Civil and Administrative Tribunal Act 2013

Interpretation Act 1987

Relationships Register Act 2010

Succession Act 2006

Cases Cited:

Yesilhat v Calokerinos [2021] NSWCA 110

Category:

Principal judgment

Parties:

Carol June Mary Bernadette Myers – applicant
Registrar of Births, Deaths and Marriages – respondent
Nicole Mensinga – joined party

Representation:

Solicitors:
Baker, Mannering & Hart (Applicant)
Legal, Corporate Services, Department of Customer Service (Respondent)
N Mensinga (Joined Party – self-represented)

File Number(s):

2021/00091239

REASON For DECISION

Introduction.

1. Jeremy Plooy was killed in a motorcycle accident on 20 August 2018. He was 39 years old. His death certificate shows that his de facto spouse was Nicole Marie Mensinga and that she was the informant for the death certificate.

2. Jeremy Plooy is survived by his parents – who are long separated – siblings, and their children and by Nicole Mensinga. At the time of his death, she was 41 years old. She has one child from an earlier relationship.

3. On 18 September 2020 Jeremy Plooy’s mother, Carol Myers, applied to the Registrar of Births, Deaths and Marriages (the Registrar) to correct the death certificate by having Nicole Mensinga’s nomination as de facto spouse removed from the death certificate. Ms Myers indicated that Ms Mensinga was not Jeremy Plooy’s de facto, but was, “just his girlfriend and they have never married.”

4. After seeking the views of both Ms Myers and Ms Mensinga with respect to that application, and considering material they provided, the Registrar conducted an inquiry and then, on 8 January 2021, declined the request to amend the death certificate.

5. An internal review was requested by Ms Myers’ solicitors on 5 January 2021. They supplied further material and arguments in support of her application.

6. The decision not to amend the death certificate was affirmed on internal review on 4 March 2021.

7. On 1 April 2021 Carol Myers applied to the Tribunal for administrative review of the internal review decision.

8. There have since been two directions hearings in the matter while it was being prepared for hearing. On 27 July 2021, the Tribunal joined Nicole Mensinga as a party to the proceedings under s 44(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and made directions for the filing of evidence and submissions. In that order the Tribunal noted that:

The parties agree that the matter is to be dealt with on the papers without the need for a hearing after 17 August 2021.

9. The application for administrative review has been referred to me to determine on the papers.

10. On 24 September 2021, the Registrar of this Tribunal, on my behalf, wrote to the parties as follows:

This matter is [sic] been referred to Senior Member Molony to determine on the papers. He notes that the submissions from the Registrar of Births, Deaths and Marriages refers to a forensic account's report prepared by Vincent's dated 9 April 2019. This was provided by Ms Mensinga. He is unable to locate a copy of that document in the section 58 materials. From the submissions, he thinks that the Vincent's report is relevant to the issues to be determined in this matter. As a consequence, he has made the following directions:

1. The Registrar of Births Deaths and Marriages shall file and serve a copy of the Vincent's report dated 9 April 2019 on or before 1 October 2021.

2. The other parties are to file and serve any submissions they wish to make with respect to that document on or before 8 October 2021.

Mr Molony will then finish determining the application on the papers.

11. The report from Vincent’s has since been supplied but no further submissions have been received from the parties.

12. Henceforth, in these reasons, for ease of reference, I will refer to Jeremy, Nicole, Carol and other members of the family by their first names. No disrespect is intended.

Material before the Tribunal.

13. In considering the review I have had regard to the following materials.

From the applicant.

1. Submissions dated 29 June 2021.

2. Affidavit of Carol Myers dated 23 June 2021 with exhibits. Carol says among other things that -

1. At the time of his death Jeremy was studying nursing and working part-time as a cleaner. He intended to work with Doctors Without Borders when he graduated.

2. Jeremy and Nicole’s relationship began on 28 November 2016 when Nicole’s Facebook page showed that she was in a relationship. They began living together 16 months before his death. Their first tenancy agreement began on 6 April 2017.

3. Carol believes that their decision to move in together was a practical compromise on Jeremy’s part, enabling him lo live in Ballina at a rent he could afford. She did not know where the idea of them living together came from. During the relationship, Jeremy stayed at Carol’s “many times’: for one to two nights a week in his last few months. Carol says that following her return from a trip to Greece in May-June 2018 Jeremy said he had stayed at her house for two weeks – “I needed to get out of my place.”

4. Jeremy never married and did not want children. He had a vasectomy during his relationship with Niclole. Carol said he thought of himself as a man without responsibilities and free to do whatever he wished.

5. Jeremy and Nicole were financially independent throughout their relationship. Carol agrees that they set up a joint bank account two months before he died on 6 June 2018 but says that he only contributed $50 a fortnight. She says he only paid his share of bills and that he expressed frustration that Nicole was often behind, and that he had he was having to lend her the shortfall. She says that Nicole did not offer to contribute to the cost of Jeremy’s family memorial gathering or funeral expenses.

6. Following Jeremy’s death, Carol’s daughter-in-law established a GoFundMe page to help Nicole with the expenses and rent. The request for donations said:

Jeremy Plooy was tragically taken from this world on Monday 20 August in a fatal motorbike accident. The idea of this is still so raw and surreal but for his partner to Nicole the realities of life still go on. If anyone would like to help out it would be greatly appreciated.

7. This raised $5,925.00 which was paid into the joint account. The GoFundMe fees were $446.98. At the time Nicole said she was not paying for it, and it could come out of superannuation payments.

8. Jeremy’s interests were music, surfing and fishing. Nicole did not share these.

9. Jeremy had serial girlfriends with whom he lived on and off for a period of around 18 months each. Carol considers his relationship with Nicole to be similar.

10. Jeremy kept his dog at his mother’s. The dog was not allowed in the rented accommodation. He would come around and walk the dog in the morning. “Lots of mornings Nicole would meet him at my house and they would take the dog walking together.” In August 2018, one morning at Carol’s place there was something of an argument between the two of them following which Nicole left and Jeremy: commented – “I can’t even walk the dog. I’m done with this relationship. She is hard work and so “friggin needy.”

11. Jeremy was particular about cleanliness and would have contributed to household duties.

12. Jeremy and Nicole didn’t attend many events together. She cannot recall him attending any of Nicole’s family events. Nicole and her son attended Christmas breakfasts at Carol’s home in 2016 and 2017 (“I arrange this for Jeremy’s sake as it would be awkward for him if he wanted to come over”) and a family party was arranged for her 40^th birthday.

13. Nicole did not attend Jeremy’s memorial gathering at Stockton on 15 September 2018

14. In March 2018 Jeremy told Carol he had written a letter to support Nicole’s compensation claim. “I wish I hadn’t done the letter. I felt pressured to oblige Nicole. She needed money. I feel bad. You know women can get to you.”

3. Affidavit of Larissa Marie Butterfield (Jeremy’s sister) dated 28 June 2021. Larissa says among other things that -

1. Jeremy and Carol had a close relationship. He visited Carol daily and kept his dog at her home. He helped around the house. Jeremy had always told Larissa he would, “look after mum.”

2. After Jeremy’s death Nicole told Larissa that she had arranged to visit the funeral home. Larissa responded that Nicole did not get to decide such matters, “That should be discussed amongst everyone.” Larissa said she was offended that Nicole thought she could decide such matters without consultation with Jeremy’s mother and family.

3. Nicole, Jeremy’s brother Adam, Larissa and her husband, attended the first appointment at the funeral home, with a staff member called Sam. Sam was filling in some paperwork, which Larissa now understands to be the death certificate form. There was a discussion as to Nicole’s status at this time. The family considered her his girlfriend, while she considered herself his de facto spouse.

4. Nicole did not pay for Jeremy’s funeral expenses. She has since received superannuation benefits and made a CTP claim consequent upon his death. She has not offered to pay his funeral expenses.

5. The relationship between Jeremy and Nicole was, “always very volatile.” He told Larissa that he was moving in with her as, “she was his girlfriend and moving in was “convenient.”

4. Affidavit of Adam Stephen Plooy dated 29 June 2021. Adam says among other things that -

1. He attended a meeting at the funeral home after Jeremy’s death. Attending were himself, his sister Larissa, her husband Steve, and Nicole and her son. They filled in a document that he now believes was the death certificate. There was no discussion of the ramifications of the death certificate in the future.

2. In the course of doing so a differences emerged between Nicole and Jeremy’s family as to whether or not whether or not she was his de facto and who was next of kin – with the family saying that Carol was, but Nicole insistent that she is next of kin. Adam explained that he considered Jeremy and Nicole’s relationship one of boyfriend and girlfriend, and that Jeremy had told him he was not spending his future with Nicole.

3. In May 2018 Jeremy said he was thinking of moving back to Newcastle to finish his studies. Adam asked, what about Nicole? Jeremy said, “I’ve had enough. She can sort her own stuff out. I want to move away from her.” He used Adam’s phone to ring the University, and then asked to borrow a trailer to move his belongings to Newcastle. He was leaving, “As soon as I can. I’m done with up here. (sic)”

4. On occasions Jeremy did not sleep at home staying at his mother’s or other family members. One day Adam found him asleep in his car.

5. In 2018 Jeremy told Adam that he had written a letter so that Nicole could get an operation on her shoulder paid for by her employer, as she couldn’t afford it herself. Adam asked, “She didn’t hurt at work though, did she? Why’d you get involved?” Jeremy replied, “She needed to be fixed up and I’m not paying for it. I regret it now though, I said we were de facto so would carry more weight, but I regret writing it now.”

From the respondent:

1. Full section 58 documents, which include the following.

1. Application to amend the register dated 7 September 2020 so as to show Jeremy Plooy as unmarried at the date of his death and that Nicole Mensinga’s relationship with him was that of girlfriend.

2. Statutory declaration of Carol Myers dated 8 September 2020 with attached grant of the letters of administration of Jeremy’s estate to Carol Myers dated 22 July 2020. An inventory of the estate shows a total value of $581,988.23 of which:

1. $506,209 was a superannuation death benefit IOOF Holdings Superannuation;

2. $47,756.58 was a superannuation death benefit with Equity Trustees;

3. $13,322.65 was invested with other superannuation funds; and

4. the balance represented personal goods and vehicles.

3. Jeremy’s death certificate.

4. Notices of particulars of death dated 14 October 2019 from the Coroner’s Court.

5. Submissions dated 23 July 2021.

From the joined party:

1. Application to be joined as a party received 17 June 2021.

2. Email dated 30 July 2021 forwarding email from Senior Constable Nicole Ainsworth (unsigned) in which she discusses her knowledge of the relationship between Jeremy Plooy and Nicole Mensinga, both of whom she describes as friends.

3. Statutory declaration of Pieter Antonie Plooy (father) made 11 November 2019, in which he says that Jeremy Plooy and Nicole Mensinga, to the best of his knowledge, were in a de facto relationship. He says that he believes Nicole is entitled to the benefits of Jeremy’s estate.

4. Letter from Pieter dated 10 May 2021 in which he confirms that he knew by reputation of the de facto relationship between Jeremy Lloyd and Nicole Mensinga, although we had not met Nicole prior to Jeremy’s death. He says that his other children were telling him that Jeremy was happy in the relationship with Nicole.

5. Recommendation made by the Australian Financial Complaints Authority to Equity Trustees Superannuation Ltd with respect to a complaint made by Carol about the proposed payment of superannuation death benefits, consequent on Jeremy death, to Nicole. The recommendation found that Nicole a was Jeremy dependent spouse, and that Carol was not dependent on him. It found Ms Mensinga eligible to receive superannuation benefits, but not Ms Myers.

6. Residential tenancy agreement dated 5 April 2018 in which Jeremy and Nicole as joint tenants agree to rent a property in Ballina for 52 weeks.

7. List of all transactions from the account that Jeremy held with Newcastle Permanent from 6 April 2017 to 6 August 2018. This appears to be Jeremy’s operating account.

8. Statement of Jeremy Plooy dated 26 March 2018 made in support of a workers compensation claim by Nicole, in which he describes himself as her to facto and says they have been living together since October 2016.

9. Email dated 31 July 2021 forwarding an email containing a personal statement of evidence (unsigned) from Belinda Westblade, who knew both Jeremy and Nicole personally and professionally and described them as a loving couple. She said that Jeremy had told her they were planning to buy a plot of land on which to build a container home.

10. Forensic accountants report prepared by Michael J Lee CA of Vincents. This is an assessment of Nicole’s loss of financial dependence and domestic support as a result of Jeremys death. It assumes a degree of financial dependence on Jeremy by Nicole and a degree of reliance on his domestic support. It then goes on to assess Nicole’s likely loss for the purposes of a death claim.

Should the application be decided without a hearing?

14. Section 50 (2) to (4) of the NCAT Act provide:

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

15. In this case all parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials I am satisfied that this is matter that can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.

The relevant legislation

16. The death of a person is a registerable event within the meaning of section 4 of the Births, Deaths and Marriages Registration Act 1995 (NSW)(the BDMR Act).

17. Part 7 of the BDMR Act is concerned with the registration of deaths. It places on the Registrar a duty to register deaths in the State (s 36) upon being notified of the death in accordance with requirements of the Act. In Jeremy’s case his final complete death certificate was issued following the receipt from the Coroner of a Notice of Particulars of Death dated 14 October 2019, in accordance with section 40 of the Act. The death was registered in accordance with section 42 of the Act. Registration was affected by the Registrar making an entry in the Register and providing the particulars required by the regulations. In the case of death, the particulars required by clause 16(h) and (k) is –

…

(h) whether, immediately before death, the deceased was married, divorced, widowed, in a registered relationship or an interstate registered relationship or in a de facto relationship or had never married,

…

(k) the full name (if applicable, the original surname) of any de facto partner of the deceased.

18. The Registrar has power under section 44 to conduct an inquiry to find out whether “particulars of a specific registerable event have been correctly recorded in the Register”: see section 44(1)(c). Under section 45, the Registrar may correct the Register:

(a) to reflect a finding made on inquiry … , or

(b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.

19. Following the receipt of Carol’s application to correct an entry in the death certificate, to show Nicole as Jeremy‘s girlfriend, rather than as his de facto partner, the Registrar conducted an inquiry into the issue. The inquiry sought submissions and received materials from both Carol and Nicole. As a result of the inquiry the Registrar was not satisfied that there was an error in the certificate and refused to amend it.

20. As noted above Carol then sought an internal review which was unsuccessful.

21. Carol then applied for administrative review of that decision. Under section 56 of the BDMR Act a person who is dissatisfied with a decision of the Registrar may apply to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). This, together with section 9 of the ADR Act and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), combine to confer on the Tribunal power to administratively review the Registrar’s decision not to correct the particulars in the death certificate that show Nicole was in a de facto relationship with Jeremy at the time of his death.

22. De facto relationship and de facto partner are not defined in either the BDMR or the Regulation.

23. Section 21C of the Interpretation Act 1987 (NSW) however, relevantly provides:

1) For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if—

(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or

(b) the person is in a de facto relationship with the other person.

(2) For the purposes of any Act or instrument, a person is in a de facto relationship with another person if—

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

(3) In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case—

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

24. In Yesilhat v Calokerinos [2021] NSWCA 110 Mc Farland JA explained:

… the expression “de facto relationship” is defined in s 21C(2) of the Interpretation Act to involve “a relationship as a couple living together” Section 21C(3) requires “all the circumstances of the relationship” to be taken into account in determining whether two persons have such a relationship but nine factors of possible relevance are then listed, with a caveat that no particular finding in relation to any of those factors is necessary in determining whether two persons have a relationship as a couple.

25. There is no suggestion in this case that the relationship between Jeremy and Nicole was ever registered under the Relationships Register Act 2010 (NSW). Rather, the question is whether they were in a de facto relationship with each other to which section 21C(2) of the Interpretation Act applies?

26. In passing it should be noted that the question of whether Jeremy and Nicole were in a de facto relationship to which section 21C(2) of the Interpretation Act applies, is a different question to whether they were in a domestic relationship to which section 105 of the Succession Act 2006 (NSW) applies? In the latter case – which operates to determine whether a de facto partner can inherit on an intestacy – the de facto relationship must have been in existence for a continuous period of 2 years or have resulted in the birth of a child. These are additional requirements that do not apply to a de facto relationship under section 21C of the Interpretation Act.

Were Jeremy Plooy and Nicole Mensinga in a de facto relationship when he died?

27. In considering this question is convenient to analyse the issues through the framework created by section 21C of the Interpretation Act, by looking at the factors the section specifies are relevant to the issue of whether they had a relationship as a couple living together.

The duration of the relationship.

28. Nicole changed her relationship status on Facebook on 28 November 2016 to show that she was in a relationship with Jeremy Plooy. This was a public acknowledgement on her part of the existence of a relationship between them. In the written statement Jeremy made for Nicole’s compensation claim he said they had known each other for some years before that. They moved in together in early April 2017. While Carol sought to characterise Jeremy’s decision to move in with Nicole as a purely practical one, his statement to Larissa that ,“she was his girlfriend and moving in was convenient,” points to Jeremy’s relationship with Nicole being a primary motivator in his decision to move in with her.

The nature and extent of their common residence.

29. Nicole and Jeremy jointly rented a house in Ballina commencing on 6 April 2017, on a one year fixed term agreement. They were the sole tenants and residents. Nicole’s son did not live with them. They did not share the house with others. It was their own shared residence.

30. They renewed the tenancy for a further 52 weeks on 5 April 2018 when it expired. They remained the only residents.

31. While Jeremy may have slept elsewhere, such as his mother’s, regularly, there is no suggestion that the rented house in Ballina was not his principal place of residence, and that he it shared with Nicole, until his death. He could not keep his dog at the rented house and kept it at his mother’s place instead.

32. Despite the evidence that Jeremy voiced displeasure with, and frustration about, his relationship with Nicole to his mother and his brother, there is no evidence of him taking any action to leave the relationship. He did not pack up his bags and moved to Newcastle after the discussion with his brother in May 2018. Rather, he returned home and remained living with Nicole until his death three months later.

33. While his relationship with Nicole may have been hard work at times, and while he complained that she was needy, there is no evidence to suggest that, aside from complaining about her to his family, her ever took any action to terminate his relationship with Nicole. Indeed, the evidence is that in April 2018 he committed to continuing to live with her by signing another 52 week tenancy agreement.

Whether a sexual relationship exists.

34. There is no dispute that a sexual relationship existed between Jeremy and Nicole.

The degree of financial dependence or interdependence, and any arrangements for financial support, between them.

35. Carol’s evidence is that Jeremy and Nicole were financially independent throughout. She says that Jeremy supported himself with his work as a cleaner and only paid his share of the bills. It is clear that Nicole was not as financially well-off as Jeremy, being partially reliant on Newstart for her support.

36. Carol says that Jeremy complained to her that Nicole was often behind with the bills, and that he was having to lend her the shortfall.

37. Jeremy and Nicole established a joint account with Newcastle Permanent on 6 June 2018, two months before his death. The statement for the account shows regular fortnight payments of $50.00 being made from two sources (one of which is Jeremy’s account), with there being no withdrawals made from the joint accounts before his death. The account was not used to meet living expenses and appears to be a joint savings account to which they were both contributing equally.

38. Both parties have also provided full copies of Jeremy’s operating account with Newcastle Permanent from 1 January 2017 to 31 December 2018. Neither point to any specific entries. An examination of the account records shows that from the commencement of the tenancy agreement in April 2017 until Jeremy’s death on 20 August 2018, Jeremy made regular fortnightly payments of rent ($900) plus electricity ($40) to the real estate agent. He short paid the rent once, but made it up within weeks.

39. At the same time Nicole was irregularly transferring her share, or less, of the rent from her Teachers Mutual Bank account into Jeremy’s account. There are fortnights throughout the tenancy in which she missed her payment entirely and others in which her payments were significantly short. In the absence of any evidence that points to her paying this missing rent by some other means, I conclude that Jeremy was paying the shortfall himself,

40. The fact that Jeremy entered the second tenancy agreement with Nicole as co-tenant and that he continued to pay the full rent, without being fully recompensed for the short fall, points to Jeremy knowingly helping to support Nicole and to her being at least partially dependant on him.

41. That this was known to be the reality at the time of his death is reinforced by the GoFundMe established by Jeremy’s sister in law, to aid Nicole after Jeremy died:

Jeremy Plooy was tragically taken from this world on Monday 20 August in a fatal motorbike accident. The idea of this is still so raw and surreal but for his partner to Nicole the realities of life still go on. If anyone would like to help out it would be greatly appreciated.

42. The forensic accountants report is of little assistance in determining the degree of financial dependence or interdependence between Jeremy and Nicole. It does not consider that question, but rather assesses Nicole’s likely loss on the assumption that she was financially dependent on Jeremy.

43. I am satisfied that during the time they lived together Nicole was partially dependent on Jeremy for financial support.

The degree of mutual commitment to a shared life.

44. Nicole insists that she and Jeremy were a loving couple who were planning their life together. Their mutual conduct was consistent with this. While Jeremy’s family questions his dedication and commitment to the relationship, because of things they say he said about it, his conduct in continuing to live with and support Nicole is consistent with him being committed to the relationship, despite his gripes about it. I do not accept that a man who has had serial live-in relationships with a number of “girlfriends” over the years, would continue to commit to and bind himself to (by signing a fresh tenancy agreement) a relationship that is hard work, demanding and costing him money, if he were not committed to it.

The care and support of children.

45. There are no children of the relationship nor is there a suggestion that any were planned. Carol’s assertion that Jeremy had a vasectomy during the relationship points to the issue of children being settled. I do not accept that Jeremy having a vasectomy is evidence that he was not in a de facto relationship with Nicole. It is equally consistent with a long-term contraceptive option being chosen by couple who do not want children.

The performance of household duties.

46. There is no suggestion that Jeremy and Nicole did not share domestic duties. Carol is sure Jeremy would have done his share and makes no suggestion that Nicole would have not done hers.

The reputation and public aspects of the relationship.

47. The perspective on the relationship advanced by Jeremy’s family is that Nicole was another of Jeremy’s live in girl friends, none of whom lasted more that 18 months or so. Yet, until Jeremy’s untimely death, when the issue of the status of Nicole’s relationship with Jeremy arose, Nicole appears to have been warmly welcomed into and treated as one of the family. Nicole is said to have been a friend to Larrissa. According to Carol the family organised a family party for Nicole’s 40^th birthday (Carol says at Jeremy’s request) and Nicole came to Christmas Breakfast with her son in 2016 (before they lived together) and 2017. Carol says Nicole was invited to ensure Jeremy could attend, “without awkwardness.”

48. Putting to the side for the moment Carol’s explanations for Nicole’s attendance at these events, the objective reality is that Nicole was attending important family occasions such as Christmas with Jeremy, was a regular visitor to his mother’s, and that Jeremy’s family were treating her as his partner, and one of them. The fact that Jeremy requested the family celebrate her 40th birthday reinforces his commitment to her and his desire to see her treated as part of his wider family.

49. This is consistent with the impressions gained by Jeremy’s father in conversation with his children about the relationship between Jeremy and Nicole. He, however, did not participate in those occasions or meet Nicole prior to Jeremy’s death. In those circumstances, I place little weight on his impression.

50. The emails form Senior Constable Ainsworth and Belinda Westblade are both unsigned. The statement from Ms Westblade contains none of her personal details, while that from Senior Constable Ainsworth make her contact details clear. These factors cause me to approach their correspondence with caution. Both talk of knowing Jeremy and Nicole as a couple and that they conducted themselves as such in their company. This is not really at odds with the other evidence before me about how they presented themselves, although Carol is anxious to make the point that Nicle did not share Jeremy’s passion for surfing, fishing and music. It is not unusual for a couple to have different interests and passions.

51. Of importance is the statement that Jeremy made in support of Nicole’s work injury claim. In that statement he said that he was her “current de facto” and that they had been in a relationship since October 2016. He went on to detail Nicole complaining that she had hurt her shoulder at work on 5 September 2017, was refused light duties and then decided to resign. He wrote that:

We talked about her options and when she was refused light duties by her employer, I supported her decision to resign as I could see how much pain she was in.

In this statement, Jeremy was holding himself out publicly as Nicole’s supportive, de facto partner.

52. Both Carol and Adam give evidence of conversations with Jeremy in which he had told them he had made this statement, or written a letter, and expressed regret at doing so. According to Adam, Jeremy knew that Nicole did not hurt her to shoulder at work. He had written that he was her de facto so that his statement would carry more weight. He regretted writing the statement. It is unclear to me from Adam’s statement whether Jeremy’s regret was for writing a statement saying that the Nicole had been injured at work, when he knew that not to be the case, or because he had described himself as her de facto. As he had by then been living with Nicole for nearly 6 months, it impresses me as more probable and likely that Jeremy’s regret was at making a statement supporting a false injury claim, rather than saying that he was Nicole’s “current de facto”. I am reinforced in this conclusion by Carol’s evidence that he wished he had not written a letter in support of Nicole’s compensation claim. She has Jeremy saying –

“I wish I hadn’t done the letter. I felt pressured to oblige Nicole. She needed money. I feel bad. You know women can get to you.”

I am satisfied on the balance of probabilities that Jeremy’s regret with respect to this statement was about writing it, not his description of himself as Nicole’s current de facto.

53. Mention should also be made of the fact that, according to members of Jeremy’s family, Nicole did not assist in paying Jeremy’s funeral expenses at the time or attend the family memorial held for him at Stockton. Nicole has not responded to of these statements. I do note however that from the evidence before me it would appear that she was in some financial difficulty at the time. Hence, the GoFundMe campaign. It also appears that, following Jeremy’s death, tensions between Nicole and Jeremy’s family rose sharply over conflict about her status vis-à-vis that of his mother.

Conclusion.

54. Having considered all the evidence and submissions, and all the circumstances of their relationship, I am satisfied that from early April 2017 until Jeremy’s death, Nicole and Jeremy were in a relationship as a couple and were living together in premises they rented in Ballina. They were not married to each other, or otherwise related to each other. The live-in relationship was 16 months old when Jeremy died. Four months before his death they had jointly committed themselves to a fresh 52 week tenancy agreement. They shared and used that rented property as their home. While they had their differences, they both showed their continued commitment to the relationship by sticking with it. This is so despite Jeremy considering and having access to other options. In the course of the relationship Jeremy partly financially supported Nicole by assisting with the payment of rent and expenses.

55. They were a mature couple, at the halfway point in life. They did not have children and there is no suggestion that either of them wanted children of their relationship. What evidence there is suggests that they shared household duties. Nicole was treated as one of the family by Jeremy’s family: as one would expect of the partner of a family member. The limited evidence there is suggests they were regarded as a couple by their friends. It is clear that Jeremy on one occasion described himself as Nicole’s current de facto in legal documentation. Looked at it objectively, their life together showed a joint commitment to a shared future.

56. In those circumstances, I am not satisfied that the particulars which Carol seeks to have changed in Jeremy’s death certificate, should be changed. Nicole was Jeremy’s de facto partner. The current particulars recorded in the Register are in conformity with the most reliable information available. As a result, the decision of the Registrar should be affirmed.

Orders.

57. The Tribunal makes the following orders.

1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter.

2. The decision of the Registrar of Births, Deaths and Marriages to refuse to amend the Register is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 October 2021