N v Public Trustee - [2008] SASC 326

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
N v PUBLIC TRUSTEE
[2008] SASC 326
Judgment of Judge Burley a Master of the Supreme Court
24 September 2008
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF STATUTES - RETROSPECTIVE OPERATION - AMENDING ACTS
Family Relationships Act - Application by plaintiff for declaratory relief - declaration as to the existence of domestic partner relationship or putative spouse relationship - plaintiff and deceased lived as man and wife for in excess of 30 years - deceased died in April 2004 - amending legislation commenced in June 2007 - proceedings commenced after that date - whether former provisions of the Family Relationships Act applied. Held: the transitional provisions in the amending legislation had the effect of preserving the amended provisions where the date of death of deceased preceded the commencement of the amendments.
Family Relationships Act 1975 (SA) s 14(1); Inheritance (Family Provision) Act 1972 (SA) s 7; Administration and Probate Act 1919 (SA) s 4, s 72g (pre 2007 amendment), s 72G; Statutes Amendment (Domestic Partners) Act 2006 (SA) s 7, s 20, s 131; Acts Interpretation Act 1915 (SA) s 16, referred to.
Vaher v Gibson (unreported, 19 June 2008, Judgment No [2008] SADC 75), not followed.

N v PUBLIC TRUSTEE
[2008] SASC 326

JUDGE BURLEY. In this matter the plaintiff has applied for a declaration under s 14(1) of the Family Relationships Act 1975 (“the FR Act”) that she and K were, as at 30 April 2004, domestic partners. The plaintiff has also sought an order under the Inheritance (Family Provision) Act 1972 (“the IFP Act”) for provision out of the estate of the deceased. The deceased died on 30 April 2004 intestate. Public Trustee is the administrator of his estate.
The plaintiff says that she and the deceased lived together as man and wife for over 30 years prior to the deceased’s death. Because of that, she asserts that she is either entitled to his estate pursuant to the intestacy provisions in the Administration and Probate Act 1919 (“the A & P Act”) or to provision out of his estate pursuant to s 7 of the IFP Act.
It is clear that the plaintiff is not eligible to take on an intestacy without first obtaining from the Court a declaration that she was, at the date of death, either the putative spouse or domestic partner of the deceased.
It is clear that she has no entitlement under the IFP Act without first obtaining from the Court a declaration that she was, prior to the date of death, either the putative spouse or domestic partner of the deceased. I say “prior to the date of death” because, for reasons which I shall give later, if she obtains a declaration as to a relationship at the date of death, she would take on intestacy all of the estate, provided there were no children of the deceased who survived him.
In the summons, the plaintiff has sought a declaration that she was, at the date of death, the domestic partner of the deceased. At the hearing of the application for a declaration, the plaintiff applied to amend the summons to include a request in the alternative for a declaration that, at the date of death, she was the putative spouse of the deceased. That application was not opposed by Mr Frost, counsel for Public Trustee. Mr Frost also represents the interests of any person entitled to take on an intestacy other than the plaintiff.
The necessity to consider both types of declaration arises from the circumstance that, at the date of death (April 2004), the relevant intestacy provisions and the relevant provisions of the IFP Act did not include the concept of a domestic partner. The relevant legislation (the A & P Act, the FR Act and the IFP Act) were amended in 2006 to introduce the concept of domestic partner, an all-inclusive phrase providing for married persons, de facto couples and other types of relationship which came within the expression “close personal relationship” as defined in the Statutes Amendment (Domestic Partners) Act 2006 (“the amending Act”). That Act commenced operation on 1 June 2007.
On the hearing of the application for declaratory relief, Mr Frost raised a number of points which require determination. Before turning specifically to those points it is necessary to refer to the content of the relevant statutory provisions at the date of death of the deceased and as at the date of commencement of these proceedings (29 May 2008).
As at the date of death, s 72g of the A & P Act provided, amongst other things, that where an intestate person is survived by a spouse and by no issue, the spouse is entitled to the whole of the estate. Section 4 of the A & P Act, as at the date of death, provided that “spouse” includes a putative spouse. “Putative spouse” was in turn defined in s 4 of the A & P Act, as at the date of death, as follows:
“putative spouse”, in relation to a deceased person, means a person adjudged under the Family Relationships Act, 1975, to have been a putative spouse of that person as at the date of his death:
As at the date of death, the IFP Act provided by s 4 that:
“spouse” in relation to a deceased person includes a person adjudged under the Family Relationships Act, 1975, to have been a putative spouse of the deceased either on the date of his death, or at some earlier date:
The amending Act introduced into Part 3 of the FR Act provisions which enabled persons in a close personal relationship (as defined in s 11 of the Act) to obtain declarations from the Court that relevant persons were, on a particular date, domestic partners one of the other. In addition s 72G of the A & P Act (the successor to s 72g) provided, among other things, that where an intestate person is survived by a spouse or domestic partner and by no issue, the spouse or domestic partner is entitled to the whole of the intestate estate. At the same time the definition section, s 4 of the A & P Act, was amended so that the definition of “spouse” was confined to a person legally married to the deceased at the date of the deceased’s death and the definition of “domestic partner” was introduced. “Domestic partner” (in the A & P Act) means a person declared under the FR Act to have been the domestic partner of the deceased as at the date of death. Reference to a “putative spouse” was removed.
The same definitions were introduced into the IFP Act.
Section 131 of the amending Act provides:
131—Transitional provision
An amendment made by this Act to the Inheritance (Family Provision) Act 1972 applies only in relation to the estate of a deceased person whose death occurs after the commencement of the amendment.
Consequently, any application made under the IFP Act in respect of the estate of a deceased person who died prior to 1 June 2007 must be dealt with by the legislation in force prior to that date.
Section 20 of the amending Act is a transitional provision relating to the Administration and Probate Act 1919. Section 20 provides:
20—Transitional provision
An amendment made by this Act to the Administration and Probate Act 1919 applies only in relation to the estate of a deceased person whose death occurs after the commencement of the amendment.
It follows that a determination as to how an intestate estate is to be divided (where there are no surviving issue of the deceased) is to be made in accordance with s 72g of the A & P Act as opposed to s 72G of that Act. Importantly, whether s 72g or s 72G applies, the relationship of putative spouse or domestic partner must exist at the date of death. If it does not, the putative spouse or domestic partner is limited to a claim under the FR Act, ie they do not take on an intestacy.
Insofar as the FR Act is concerned, the transitional provision contained in the amending Act is s 7 which provides:
7—Transitional provision
If, before the commencement of this section, a declaration has been made under Part 3 of the Family Relationships Act 1975 that a person was, on a certain date, the putative spouse of another, the declaration will, if the case requires, be taken to be that the person was, on that date, the domestic partner of the other.
This provision does not apply to the plaintiff because, as yet, no declaration as to any relationship has yet been made. Section 7 differs from the other transitional provisions because it does not state that claims under the FR Act in respect of deceased persons who died prior to the commencement of the amending Act are to be dealt with under the repealed provisions. There may be a number of reasons for this. An application under the FR Act (whether before or after the amending Act) is not confined to situations where the other person in the relationship has died. In addition, the other transitional provisions and s 16 of the Acts Interpretation Act 1915 may have a bearing on the extent to which the “putative spouse” provisions in the FR Act have survived the amending Act.
It follows from the transitional provisions in the amending Act that a claim under the IFP Act in respect of the estate of a person who died before 1 June 2007 is to be decided by reference to the provisions of the IFP Act in force immediately prior to that date. Similarly, in relation to the distribution of an intestate estate, the provisions of s 72g of the A & P Act are to be applied to the estates of persons who died prior to 1 June 2007. In both those instances a putative spouse, as defined in the provisions of the two Acts prior to 1 June 2007, may either apply for provision out of the estate or to take under the laws of intestacy, depending on whether or not the relationship existed at the date of death or at an earlier date.
In this matter, the plaintiff’s primary case is to obtain a declaration supporting a claim, under the laws of intestacy, to the estate of the deceased person pursuant to the provisions of s 72g of the A & P Act. Her secondary claim, in case it is found that the relevant relationship existed prior to but not at the date of death, is for an order for provision out of the estate of the deceased person. She may make a claim under that Act because the definition of “spouse” includes a person who was a putative spouse prior to the date of death of the deceased.
In light of the foregoing, the legislature must have intended that, after 1 June 2007, potential applicants, when the deceased died prior to 1 June 2007, could seek the declaratory relief relating to putative spouses under the provisions of the FR Act which applied immediately prior to 1 June 2007. If it were otherwise, a claim, where the deceased died prior to 1 June 2007, could theoretically be made by a “putative spouse” but the vehicle for making such an application, the FR Act, only referred to spouses and domestic partners. Such a result is absurd.
Put another way, the transitional provisions carry with them the clear implication that, if claims in respect of the estates of deceased persons who died prior to 1 June 2007 are to be dealt with under the former provisions of the IFP Act and the A & P Act, the former provisions of the FR Act relating to putative spouses survive so as to enable such claims to be made.
This approach is supported by and consistent with the provisions of s 16 of the Acts Interpretation Act 1915, the relevant parts of which are as follows:
16—Saving of operation of repealed, amended or expired Act
(1) Where an Act is repealed or amended, … then, unless the contrary intention appears, the repeal, amendment … does not—
…
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or
…
(e)affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
(2) Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, … as if the repeal or amendment had not been effected …
In the circumstances of this case the relevant “right” is the right under the repealed legislation to obtain a declaration that persons are putative spouses one of the other. The declaration recognises and gives effect to a “status” that they possess pursuant to the provisions of the Act prior to the amendments. Hence the applicability of s 16(1)(c) of the Acts Interpretation Act.
Section 16(2) provides that “legal proceedings … may be instituted”. This, in my opinion, clearly refers to the institution of proceedings invoking the former provisions after the commencement of the amending Act.
During the course of his submissions, Mr Frost referred me to the judgment of Smith DCJ in Vaher v Gibson, an unreported decision delivered on 19 June 2008, Judgment No [2008] SADC 75. In that case, the applicant sought a declaration that she was the domestic partner of a man who died on 12 April 2003. She alleged that between 1987 and 1992, she and the deceased lived together as man and wife. The deceased died intestate. Because the applicant did not contend that she was, to use a relatively neutral expression, the de facto wife of the deceased at the date of death, she was confined to an application under the IFP Act. The Court had to determine whether the former provisions relating to a putative spouse or the new provisions relating to a domestic partner, applied. His Honour came to the conclusion (at [19]) that the current legislation applied. However, it is clear that no argument was addressed to his Honour regarding the transitional provisions contained in the amending Act. Those provisions have a determinative effect on how the legislation is to be applied. In my opinion, they require the conclusion that, where the deceased died before 1 June 2007, the former provisions of the FR Act apply so that the applicant may obtain a “putative spouse” declaration.
Before turning to the facts I should mention that, at the hearing before me on 10 September 2008, the plaintiff’s case was that she had the required relationship with the deceased up to the date of death. If she makes good that claim, it will not be necessary for her to proceed to a claim under the IFP Act because, if there are no surviving issue of the deceased, she will take the intestate estate in accordance with the provisions of s 72g of the A & P Act.
The Facts
The application proceeded on affidavit evidence. The affidavits relied upon are as follows:
·The affidavits of the plaintiff sworn on 29 May 2008, 6 June 2008 and 28 August 2008.
·The affidavit of Mr Fabian sworn on 17 July 2008.
·The affidavit of Ms Grigore sworn on 17 July 2008.
·The affidavit of Mr Witham sworn on 18 July 2008.
In assessing the evidence, I remind myself that I must determine whether or not the required relationship persisted for at least five years and that the relationship ended on the death of the deceased. The application must be supported by credible corroborative evidence.
Having read the affidavits of the plaintiff, I find that she and the deceased lived together as man and wife for a period in excess of thirty years, ending on the death of the deceased. I find that the evidence contained in the affidavits of Mr Fabian and Ms Grigore corroborate the plaintiff’s evidence to that effect. There is nothing in the evidence or in Mr Frost’s submissions which suggests that there is any basis for denying the declaratory relief sought. For the reasons already stated the appropriate declaration is to be granted pursuant to the provisions of the FR Act as they applied prior to 1 June 2007.
For the above reasons I grant permission to amend the summons as requested by Mr Carabelas. In addition, there will be a declaration that as at the date of death of the deceased the plaintiff and the deceased were putative spouses one of the other.