Piras v Egan

[2006] NSWSC 328

CITATION:	Piras v Egan [2006] NSWSC 328
HEARING DATE(S):	7, 8, 9, 10 November 2005
JUDGMENT DATE :	4 May 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
DECISION:	Paragraph 119
CATCHWORDS:	Succession, Family Provision. Claim by a de facto partner of deceased and thus entitled to the whole of the deceased's estate on intestacy. Alternative claim under Family Provision Act 1982. Held plaintiff not a de facto partner and alternative claims fail.
PARTIES:	Augusto Piras v Michael Andrew Egan and Renate Judith Egan (Estate of Roberta Anne Egan]
FILE NUMBER(S):	SC 5185 of 2003
COUNSEL:	Mr DA Smallbone & A Singh for plaintiff Mrs M Bridger for defendant
SOLICITORS:	Anderson Lawyers for plaintiff Robilliard Plowman Herat for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 4 May 2006

5185/2003 Augusto Piras v Michael Andrew Egan and Renate Judith Egan (Estate of Roberta Anne Egan)

JUDGMENT

1 His Honour: This is a claim in respect of the estate of the late Roberta Anne Egan, who died on 21 April 2003 aged 45 (the deceased). She was survived by the plaintiff, who claims to have been her de facto partner at the date of death, and three half siblings. The deceased did not leave a will and Letters of Administration were granted on 25 August 2003 to the two defendants who are a half sister and half brother of the deceased.

2 The plaintiff brings proceedings seeking a declaration that he was the de facto spouse of the deceased at the date of death and an order revoking the existing Grant of Administration with a new grant to him. In event that he is successful in this claim he will receive the whole of the estate. At present the estate is shared between the three half siblings of the deceased. In the alternative, he makes a claim under the Family Provision Act 1982 based upon what he says was the close personal relationship he had with the deceased or, alternatively, as a person who was part of the deceased’s household and partly dependant upon her.

3 A judge of the court has referred the whole of the proceedings to me for hearing.

Estate of the Deceased

4 The Letters of Administration detail the estate of the deceased as being:

20-26 Wombat Street, Blackheath $610,000.00

Commonwealth Bank account $3,486.36

Monies held in trust by Office of $288,397.38

Protective Commissioner

Total $901,883.74

5 At the time of the hearing the value of the assets in the estate were:

20-26 Wombat Street, Blackheath $465,000.00

Monies in IBD with ANZ Bank $228,548.83

Total $695,488.83

6 There had been deducted from the estate by the time of the hearing administration costs, settlement of a claim by a Mr Williams and some of the defendants’ costs of $58,611.00. By the time of the hearing the defendants’ costs were estimated at:

Costs billed but unpaid $21,242.60

Anticipated costs to conclusion of hearing $33,625.00

7 The plaintiff’s costs were estimated at $134,650.65. Apart from a change of solicitors on the part of the plaintiff there was no explanation as to how such a large amount had been incurred. I assume that the estimate is not on a party and party basis. If all these amounts were recoverable the net distributable estate would be $505,970.58.

Family history

8 The deceased was born on 21 March 1956. In 1958 she contracted tuberculosis in Hong Kong where she resided with her parents. Thereafter the deceased was treated in London where her parents were on extended leave.

9 The deceased’s mother was killed in motor vehicle accident on 20 March 1960. In 1962 the deceased and her father returned to Australia from Hong Kong. Mrs Evelyn Toscani (a family friend of the deceased’s mother) came to Australia from England to help look after deceased and her father. The deceased’s father sponsored Mrs Toscani and her family to settle in Australia.

10 In 1963 the deceased’s father married his second wife and thereafter they had three children, Michael (born 17 September 1964), Renate (born 2 December 1965) and Martin (born 28 February 1971). In January 1969 the deceased and the family moved to Perth and lived there for two years. The deceased’s stepmother says that at this stage the deceased began to truant from school and was apprehended for shoplifting.

11 In 1972 the deceased and her family returned to Sydney. Apparently the deceased did not wish to go to school in Sydney and wished to remain in Perth. Victoria Egan says that her husband allowed the deceased to return to Perth for the January school holidays and then return to Sydney. On her return to Sydney the deceased attended Pennant Hills High School.

12 On Easter Saturday 1973 the deceased disappeared from home. She was apprehended in Perth. According to Victoria Egan, her husband told her that the Magistrate in Perth required the deceased to undertake psychiatric treatment. On 6 May 1973 the deceased was admitted to Chelmsford Private Hospital for two months undergoing deep sleep therapy. The deceased thereafter came under the care of Dr Bailey.

13 The deceased made a number of suicide attempts and began to use prescription and illegal drugs. The use of these continued over many years. The deceased completed her Higher School Certificate at Hornsby Technical College.

14 In 1974 or 1975 the deceased attended Newcastle University for approximately three months. Apparently the deceased had begun to use heroin at this time. In 1976 the deceased injured her leg in motorcycle accident and received a settlement approximately $6,000.00. She continued to live at home.

15 In February 1979 the deceased attended a second session at Chelmsford Hospital. In the 1980’s the deceased lived at home. In the late 1980’s the deceased attended a detoxification program in Byron Bay at the Buttery where she met her future de facto, Adrian Chenhall. Various members of her family later helped the deceased move in with Adrian Chenhall.

16 In the mid 1990’s the deceased received compensation for her treatment at Chelmsford Hospital in the sum of $350,000. The Office of the Protective Commissioner administered her compensation and the amount remaining is included in the estate.

17 In 1996 the plaintiff first met the deceased who was living with Adrian Chenhall and with whom she had been living for the previous 10 years. In December 1997 Adrian Chenhall died and the deceased moved into a flat owned by the Department of Housing at 3/13 Edward Street Bondi.

18 The plaintiff claims it was in September 1999 that he and deceased commenced living together as a couple in at 3/13 Edward Street, Bondi, a one-bedroom unit. He says that they continued living together until he was arrested in December 2002.

19 The plaintiff says the deceased went to Beecroft to be with her family for Christmas dinner each year. At Christmas 1997 Renate Egan says the deceased did not attend the family Christmas celebrations on Christmas Eve.

20 On 11 April 1998 the deceased attended the wedding of Renate Egan to Brian Ashby.

21 At Christmas 1998 Renate Egan says she went to collect the deceased and found she was upset as her cat was ill. Renate Egan says she took deceased and her cat to the vet and says that the deceased decided not to attend the family gathering.

22 On 17 June 2000 the deceased, together with the plaintiff and Nigel Butler, attended Michael Egan’s wedding reception. Apparently there was some altercation about who was invited and Victoria Egan asked them to leave.

23 The deceased was invited to attend Renate Egan’s son, Oliver’s christening but she declined. In July 2000 the deceased attended Oliver’s first birthday. The plaintiff did not attend.

24 In July 2001 Renate Egan says the deceased attended Oliver’s second birthday. The plaintiff did not attend.

25 In August 2001 the deceased’s father died.

26 In September 2001 the deceased attended a family meeting with her brothers, Michael and Martin, at a park in Rozelle to have a family photo taken as a gift for her stepmother’s birthday.

27 In February 2002 the deceased was diagnosed with breast cancer. From this time the plaintiff says he became the deceased’s sole carer.

28 The deceased attended her brother Martin’s wedding on 31 March 2002. The plaintiff did not attend.

29 In May 2002 the deceased told her stepmother, Victoria Egan, that she had cancer. On 6 August 2002 Rory Egan, (Michael Egan’s son) was born and the deceased sent flowers to mark the birth of Rory. In September 2002 the deceased attended Renate Egan’s daughter Lauren’s christening on her own. In November 2002 Rory Egan was christened. The deceased and the plaintiff did not attend.

30 On 4 December 2002 the plaintiff was arrested at the flat at Edward Street and charged with the supply of a commercial quantity of a prohibited drug and goods in custody. He was sent to gaol where he remained as he was not able to obtain bail until 24 April 2003.

31 From December 2002 a good friend of the deceased, Jonathan Smithson, commenced to care for the deceased.

32 The deceased visited plaintiff in Silverwater Gaol on 5 December 2002, 15 December 2002, 2 January 2003 and on 8 January 2003. The plaintiff says that he and deceased also spoke regularly by telephone.

33 On 10 January 2003 the deceased was admitted to St Vincent’s Hospice. She must have been discharged as on 18 January 2003 as Renate Egan found her at home very ill with a neighbour in attendance. An ambulance was called and Renate Egan went with deceased to St Vincent’s Hospice where she was admitted.

34 On 20 January 2003, according to the plaintiff, the deceased visited him in Silverwater Gaol. On 29 or 31 January 2003 the deceased was discharged from the Hospice. Her stepmother took her home. On 14 February 2003 the plaintiff says he sent flowers to the deceased for Valentines Day.

35 On 15 February 2003 the deceased was readmitted to the Hospice for pain management. On 4 March 2003 the deceased was discharged from the Hospice. She was readmitted on 24 March 2003 and remained there until she died on 21 April 2003. Her funeral and cremation occurred on 24 April 2003.

36 The plaintiff was released from gaol on 24 April 2003 which was too late to attend the funeral and he returned to the flat to find that the locks had been changed.

37 On 25 August 2003 Letters of Administration were granted to the defendants. These proceedings were commenced within time.

The relationship of the plaintiff and the deceased at the date of death

38 In respect to the plaintiff’s claim to have been the de facto partner of the deceased at the date of his death the Wills, Probate and Administration Act 1898 provides:

32G Interpretation
(1) In this Part:
de facto relationship has the same meaning as in the Property (Relationships) Act 1984 .
de facto spouse , in relation to a person dying wholly or partly intestate, means someone who:
(a) was the sole partner in a de facto relationship with the person, and
(b) was not a partner in any other de facto relationship.

39 Under the Property (Relationships) Act 1984 a de facto relationship is a relationship between two adult persons who live together as a couple and who are not married to one another or related by family. The relevant definition is as follows:

“ 4. De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and
(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such 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) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(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.

(3) No finding in respect of any of the matters mentioned in subsection (2 ) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.

40 This definition, apart from the provisions of sub-clause (1), merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984. See Light v Anderson (1992) DFC 95-120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677.

41 In respect to the alternative claim under the Family Provision Act 1982, that Act applies to domestic relationships which are defined in s 5 of the Property (Relationships) Act 1984 as follows:-

"5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

(3) ……………………

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

42 It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship. In the present case it is only the close personal relationship which is relevant to the first alternative claim brought under this Act.

43 Apart from the exclusionary matters in s 5(2), there is no definition of "close personal relationship". Little help is obtained from the reading speeches as to the meaning of "close personal relationship". It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons "who are living together, one or each of whom provides the other with domestic support and personal care". It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient.

44 So far as the first requirement is concerned since we are not concerned with concepts applicable to couples, the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together.

45 The second requirement is cumulative. There must be both domestic support and personal care. It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include:-

(a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own.

(b) Of or pertaining to one's person body or figure; bodily.

46 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:-

(a) The person concerned.

(b) An employed valet or lady in waiting,

(c) A mother for her sick child or

(d) A daughter for her elderly incapacitated mother.

47 The legislation in terms excludes the first two but would include the last two examples. It is necessary under s 6 of the Act that the plaintiff was living in a close personal relationship with the deceased at the date of death of the deceased. Of course in this case at the date of death the plaintiff was incarcerated in gaol and had been so incarcerated for some months.

48 This raises the question of how a relationship of this nature does terminate. There have been a number of references in the cases to the problem which started to surface in Australia in cases under matrimonial legislation which provided for parties living separately and apart as a ground for divorce. An earlier case which is of use on the general principles is Main v Main (1949) 78 CLR 636. At page 642 in the joint decision of the majority the following was said:-

"Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.

“In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae , which the old writers distinguish from the divortium a mensa et thoro , may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties." (per Cussen J., Tulk v Tulk , at p65)”.
[Footnote omitted]

49 As indicated by the High Court, there are matters of degree of separation, and particularly in accordance with the passages I have indicated, separation by reason of illness or otherwise does not mean that the relationship has ceased.

50 This matter arises in a number of cases under the Property (Relationships) Act 1984 and occurs in the context of whether or not there have been several separate periods of relationship. This sometimes is significant because a period of relationship and a separation period might be before the commencement of the Property (Relationships) Act 1984. The matter was dealt with at an early stage in George v Hibberson (1987) DFC 95-054. That was a decision of his Honour Cohen J which went on appeal to the Court of Appeal. At the trial his Honour Cohen J had the following to say (at 75,609):-

“The use of the words “living or having lived together as husband and wife on a bona fide domestic basis” suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. See the views of the Law Reform Commission in its report at para 17.18.

It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v McRae (1967) 68 SR (NSW) 361, the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together."

51 The theme which his Honour there picked up was repeated in the words of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 where his Honour said the following:-

"It is correct ... that the relevant relationship may continue notwithstanding that the parties are apart, for example on holidays ... There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. The learned judge, correctly, treated the matter as a question of fact."

52 McHugh JA agreed with Mahoney JA. Hope JA said he agreed with McHugh JA so that it would seem that this expression by Mahoney JA is a considered view of the Court of Appeal.

53 Since then the matter has been considered in a number of cases. In particular, Powell JA has dealt with this on a number of occasions. In Lipman v Lipman (1989) 13 Fam LR 1 at 24 his Honour had the following to say:-

"Although I accept that the concept of “a de facto relationship” does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from “the matrimonial home”, and although I do not discount the possibility that “a de facto relationship” may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the “de facto husband” requires the “de facto wife” to leave the “matrimonial home” and installs another in her place. As Mahoney JA said in Hibberson v George 12 Fam LR at 740; DFC at 75, supra.: “The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.” I therefore conclude that, in this case, there were two discrete “de facto relationships”."

54 In Thomson v Badger (1989) 13 Fam LR 559, his Honour Young J had to deal with a case where, as does not infrequently happen, the relationship was one which was interrupted by absences on quite a number of occasions. His Honour referred to the cases to which I have referred and also referred to Re Australian National Railways Commission and Gerlach (1987) DFC 95-048. He used that as a reference to the fact that one must view the circumstances in which the parties ceased to live under the same roof in the context of their total relationship and he posed the question that one must ask in the context of the total relationship as whether there was a mere lovers' quarrel or a termination of the relationship. His Honour looked at the case in hand and described it as one (at 563):-

"... not [being] the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation and then usually a short time later the parties got together again on the same basis as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued ..."

55 The matter has also been again referred to by Powell JA in Theodoropoulos v Theodosiou (1995) 38 NSWLR 424, where he referred, with approval, to the statement of Mahoney JA.

56 Also in Gazzard v Winders (1998) 23 Fam LR 716 he once again quoted with approval the statement by Mahoney JA in Hibberson v George. In that case Beazley JA had the following comments to make about Hibberson v George (at 728):-

"I would comment in passing only that I do not endorse in an unqualified way the comments of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725. For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship, may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for six weeks in a period of 14 and a half years should prevent the court from taking into account the circumstance that this was a lengthy relationship of that order. Even if I am wrong, I consider 10 and a half years to be a relationship of a lengthy duration."

57 In the light of those matters, I think clearly there is a strong weight of authority which supports the view expressed by Mahoney JA in the Court of Appeal in Hibberson v George. Of particular note is his view that (at 740):-

"... where one party determines not “to live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely to enable the one party or the other to decide whether it should continue."

58 The qualification that perhaps emerges from what his Honour Young J was referring to in Thomson v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may, in fact, lead one, on a factual basis, to suggest that perhaps an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour. That is perhaps what Beazley JA was alluding to in her comments in Gazzard v Winders. But, in any event, there she was also more concerned with the more difficult circumstance as to whether the court can take into account earlier periods of interruption to a relationship.

59 In Howland v Ellis [2001] NSWCA 456, the Court of Appeal held (at [27] – [30]) that while, as Young J stated in Jenkin v Ellis (1990) DFC 95-086 at 76,154, a de facto relationship would normally come to an end if the fact of cohabitation ceased, with the obvious exceptions of holidays, illnesses and business trips etc, it can be argued that imprisonment is an involuntary separation and may not be accompanied by the necessary intention to end a relationship. In that case, it was clear from the evidence that both parties intended to continue the relationship and that cohabitation would resume upon the release from prison.

60 The plaintiff’s second alternative claim is that he is an eligible person under s 6(1)(d) of the Family Provision Act 1982 as he was at a time wholly or partly dependant upon the deceased and at that or any other time a member of the household of which the deceased was a member. For this claim he has to establish factors warranting the making of the application and I will, if necessary, consider this aspect latter.

61 It is convenient to first consider the principal claim that the plaintiff was the de facto partner at the date of death of the deceased. I will first consider this by reference to the criteria in the definition.

The duration of the relationship

62 The plaintiff claims that he and the deceased were in a de facto relationship from September 1999, the time at which he allegedly moved into the Edward Street flat, until the deceased’s death on 21 April 2003.

63 The defendants concede that if a de facto relationship existed then the imprisonment of the plaintiff on 4 December 2002 would not have terminated the relationship.

64 There is no doubt that the deceased and the plaintiff had a relationship over the relevant period. The question is the nature and extent of that relationship. The evidence does not disclose a break in the relationship but does disclose some changes in its nature.

The nature and extent of common residence

65 The plaintiff states in his evidence that from September 1999 until 4 December 2002 there was a common residence in the one-bedroom flat at Edward Street. He made it plain in his initial affidavit that his case was that they remained living there as a couple on a continuous basis until December 2002.

66 In an affidavit later in the proceedings the plaintiff made mention of the fact that he had a lease on a flat at 3/7 Lindsay Street, Neutral Bay. He then disclosed that he still retained the flat in his name but says that they only used it as a storage facility. He also said that sometimes he went and stayed there on weekends after he and the deceased brought items back from Blackheath.

67 The plaintiff apparently lived at Lindsay Street for a month or two before the move which he said he made to live on a full-time basis with the deceased at Bondi. Before that he lived in a flat at 9 Premier Street Neutral Bay. On his own evidence, before the mid of 1997, he also lived at 13 Campbell Parade, Paddington.

68 It is plain that the plaintiff maintained the residence at Lindsay Street for the whole of the relationship and there is in evidence of a residential tenancy agreement when he leased it for six months from 1 September 2000. After he went to gaol and the deceased was very sick the deceased herself paid two months’ rent for that flat on 30 January 2003. The payment was not an insignificant amount being $999 per month. The plaintiff was a person who, for his own purposes, used a variety of different addresses. The evidence is replete with them, including the giving of former residential addresses of the plaintiff, no doubt, so that his then present location was not easily ascertainable.

69 The evidence discloses that the plaintiff provided what the recipient would expect to be his residential address as follows:

20 October 1999 - 13 Campbell Parade, Paddington [Ex. 7]

27 October 1999 - 13 Campbell Parade, Paddington [Ex. 5]

29 October 1999 - 13 Campbell Parade, Paddington [Ex. 6]

2 March 2000 - Date of a Residential Tenancy

Agreement for Lindsay Street, Neutral Bay [Ex. 12]

23 February 2000 - 13 Campbell Parade, Paddington [Ex. 4]

29 July 2001 - 13 Campbell Parade, Paddington

3 October 2001 - 9 Premier Street, Neutral Bay [Ex. 1]

28 October 2001 - 9 Premier Street, Neutral Bay [Ex. 2]

27 December 2001 - 9 Premier Street, Neutral Bay [Ex. 8]

19 December 2002 - 13 Campbell Parade, Paddington

70 The last was provided to Mr Tsolakis who was a solicitor engaged by the plaintiff to appear in a bail application immediately after he was arrested in December 2002. The documents from the Department of Immigration show that the plaintiff informed them that his residence was 13 Campbell Parade, Paddington (in documents dated, 20 October 1999, 27 October 1999, 29 October 1999 and 23 February 2000). Another who received a false address was the Roads and Traffic Authority. Plainly on his own case he deliberately gave these false addresses and his explanation was that he was worried because of the fact that he was only on a bridging visa and might at any stage be deported if the bridging visa was terminated. To use his own words:

“Q. Why did you give that address to the RTA in
September/October 2001?
A. Again, I was always a bit afraid of my bridging visa
finishing and being located. I always put an address,
over the years, where I did not live.”

71 This exemplifies his attitude towards authority and thus I have to exercise particular care to scrutinise his story now placed before another authority.

72 The plaintiff did at times use the address of the deceased’s unit. For example his car was registered to that address in 2002. The Corrective Services case management file gives his address as the deceased’s unit and this no doubt occurred because that was where he was arrested and the police file shows that address. The plaintiff attached a number of documents to his later affidavit which were accounts and the like addressed to him at the deceased’s flat. Some of these were in joint names. Another was a statement of liquidated claim in which the plaintiff was the plaintiff in those proceedings.

73 A clue as to what might have been going on appears in relation to some evidence given about the events immediately after the plaintiff was released on bail on the day of the deceased’s funeral. It will be recalled that the defendants changed the locks on the deceased’s flat. When questioned about changing the locks the second defendant said:

“Q. Did you change the locks in order to keep Mr Piras
out?
A. Yes.

Q. Because you expected him to return there, didnt you?

A. I was led to believe by Mr Smithson that Mr Piras
would be returning - would be using Roberta’s flat as his
residence because he didn’t want to use his Neutral Bay
residence because he didn’t want the police to know that
he had such a residence.

Q. Mr Smithson didn’t tell you that?
A. Mr Smithson did tell me that.”

74 Mr Smithson was a friend of the deceased and the plaintiff. He played a particularly important role in the deceased’s life after the plaintiff went to gaol. He visited the plaintiff in gaol and assisted the deceased in the months prior to her death. Because of his close friendship with the plaintiff Mr Smithson is likely to have a basis for such a statement.

75 The existence of this separate residence which was retained by the plaintiff over the whole period of the relationship casts serious doubt upon whether he lived on a full-time basis at the deceased’s flat. It is necessary to look at other evidence to see whether there is any support for his claim or whether I should merely infer that, although the plaintiff and the deceased spend time together, the plaintiff maintained his own residence and presumably resided there during the period he claims he was residing at the deceased flat.

76 There was evidence from a number of friends, including Mr Smithson, of their observation of both the deceased and the plaintiff being at the deceased’s flat. This is not in doubt and indeed evidence from Mr Smithson, who I would normally accept, seems to suggest that at times when he visited the plaintiff was plainly staying at the flat and had some of his belongings in the flat. Some of the witnesses assumed that the plaintiff and the deceased were living together for reasons such as the fact that the plaintiff always drove the deceased everywhere. Bearing in mind that the deceased did not drive and whenever she went somewhere it was normally the plaintiff who drove her, this can be a misleading conclusion.

77 It is useful to see what the deceased has said to various people about the matter. Mr Tsolakis who met the deceased when he did the bail application reports a conversation in which he says the deceased had said that she and the plaintiff were living together in her flat. He has no file note of this conversation although says it is quite clear in his recollection.

78 There are a number of forms filled out by the deceased when she attended St Vincent’s Hospital for therapy and other treatment during 2002 in which she stated that she lived at home alone and on one of these forms she said that she had a carer who was available. These forms go from May through to August 2002. In November 2002 the records of the Office of the Protective Commissioner showed that the deceased had been making inquiries about the availability of a two-bedroom unit in case she needed to have an overnight carer. The person to whom she spoke made the following comments about the conversation:

“…at times she has a friend come and stay with her to help her out with different things like going to the hospital etc. and stays the night and the friend has to sleep on the couch as her unit is a one bedroom unit. She asked whether we could arrange with DOH to get a 2 bed roomed unit… She said it will be good if she have [ sic ] a bigger place as she will need to have a carer in the future because of her illness.”

79 It would be strange for her to be making this request if, as the plaintiff says, he was living full-time at the deceased’s flat and caring for her. Handwritten notes by the deceased which were found in the flat after she died also reflected this desire to have a two-bedroom flat so that she could have the carer there on a full-time basis.

80 There are a number of references in the Hospice and Hospital progress notes to the deceased living alone and that the deceased was cautious about discussing her background. In the admissions forms the deceased on a number of occasions listed her marital status as single and once she put a dash in the answer space.

81 The relationship between the deceased and her immediate family, namely, her mother and her siblings was not as close as that of her friends. As her sister revealed in a quite straightforward way in her evidence, the deceased had not always told her the whole story. As is apparent from the chronology the deceased took part in family events such as Christmas, weddings and from time to time would bring the plaintiff although this did not always happen. Bearing in mind the difficulties that the deceased had with her upbringing and family through the years of her addiction it is not surprising that she was somewhat distant from them and did not fully confide in them.

82 Having regard to the evidence I am not satisfied that the plaintiff lived on a full-time basis with the deceased in the period up until December 2002 when he went to jail. I have no doubt that from time to time he stayed at the deceased’s flat but the frequency with which that happened, apart from his assertions, really does not appear in the evidence. The illness of the deceased certainly required someone to give her assistance during 2002 and plaintiff did this from time to time.

Whether or not a sexual relationship existed

83 The plaintiff states that the relationship was a sexual one until the deceased became very unwell in 2002.

84 Paul Fitzgerald, the deceased’s pharmacist, gave evidence that the deceased had said to him some months before her death “I haven’t had sex since Adrian died” and “I want a sexual relationship before I die”. She also said to him on one occasion:

“I am a recluse. I don’t have many friends”

85 This was probably true. On another occasion she said to him:

“I only live with my cat.”

86 Although she seems to have shared some things with her pharmacist it is a little difficult to know the circumstances in which the deceased made the statements about her sex life to him. Other aspects of his evidence were unsatisfactory when he clearly misidentified the plaintiff for the purposes of giving evidence. In the circumstances I have some doubt about the accuracy of his evidence.

87 Renate Egan in affidavit and oral evidence stated that the deceased had told her that she did not have a physical relationship with the plaintiff rather that the plaintiff was the deceased’s friend. Having regard to the reservations I have expressed about how much of her life the deceased shared with her close family I would not put great weight on this statement.

88 Victoria Egan deposed that the deceased told her that the plaintiff was a friend “who helps me sometimes”. Geoffrey Lytton, the deceased’s uncle, gave evidence that the deceased had told him that she and the plaintiff were “just friends”. The statements do not, of course, deal with whether there was a sexual relationship but will be important later when considering the nature of the relationship. It seems that the deceased’s uncle, Geoffrey Lytton, was someone who the deceased regarded as an important person at that stage in her life. For example she told him about her diagnosis of cancer prior to telling her other immediate family. He was the brother of her mother and was thus close to her as her mother had died when she was four years old.

89 Mr Smithson states that the deceased had called herself a “sexually damaged agoraphobic”.

90 The deceased lived with Adrian Chenhall in a de facto relationship for a number of years. I accept the evidence of Mr Smithson and that the deceased and the plaintiff did share a bed there at the deceased’s flat from time to time and having regard to that fact I accept the plaintiff’s assertions that there was a sexual relationship although it may have ceased during the deceased’s illness.

The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties

91 The deceased and the plaintiff did not share bank accounts and there is no evidence of them in this way intermingling their financial affairs. The plaintiff said that he purchased groceries. There is little evidence of the observation of any independent person about how they managed chores such as shopping.

92 The deceased, as I have mentioned, paid two months of the plaintiff’s rent once the plaintiff was in gaol. There was also evidence that the deceased offered to put her house up for bail in order to assist the plaintiff. There was also a reference to the claim that the deceased had paid $100,000 in cash so that the plaintiff could eventually obtain bail in March 2003. There is no evidence to suggest where the deceased obtained these funds. She had not worked for many years and her monies from Chelmsford were still intact. In the circumstances, absent any explanation as to where the monies came from, I would conclude that the monies which the deceased may well have given a solicitor, were not her own monies.

The ownership, use and acquisition of property

93 There is no real or personal property which the evidence discloses that the plaintiff and the deceased bought jointly. They each had their own lease of their flat.

The degree of mutual commitment to a shared life

94 The plaintiff points to a number of incidents surrounding their relationship which indicate a shared commitment. These included, socialising with friends, his encouragement of her painting exhibitions and art work and every month or so their visits to Blackheath.

95 There is no doubt that the plaintiff did take the deceased to medical appointments in the year that she was ill and other witnesses talk of him always driving the deceased about the area. Once the plaintiff had gone to gaol in December 2002 it is clear that the deceased played an active role in obtaining legal representation for him and, as I have mentioned, she was prepared to offer her house at Blackheath as security for bail. During that time when the deceased was quite ill she also visited the plaintiff in gaol on at least five occasions. On one of those occasions she was in pain and because she could not obtain her pain killing medication.

96 It seems from the plaintiff’s evidence is that while he was in gaol he tried to contact the deceased and made efforts to visit her before she died. However, although the deceased had initially told nursing staff she would like a visit from the plaintiff, the deceased ultimately refused the visit that had been arranged with prison authorities shortly before she died.

97 The evidence discloses that a few days before she died, the deceased instructed a solicitor to make a will in which she proposed to leave part of her estate to the plaintiff. The will was never executed.

The care and support of children

98 This is not relevant in this case.

The performance of household duties

99 The plaintiff says he did most of the cooking while he and the deceased did the shopping cleaning of the house. The plaintiff claimed that he paid for the groceries. There is no other evidence which touches on these matters in the early period of the relationship. By July 2002 the hospital notes record the deceased was informing the hospital that she had assistance from meals on wheels and on discharge that she might require assistance with housework. This probably reflects the true situation.

100 In a letter dated 9 December 2002 Dr Grygiel stated that the plaintiff was the sole carer of the deceased and that there was no alternative carer available. Progress notes dated 22 January 2003 stated that the deceased’s previous carer was in prison.

101 I have no doubt that the plaintiff did some housework but the extent of it is unknown.

The reputation and public aspects of the relationship

102 There were three or four witnesses who gave evidence in the case who said they regarded the plaintiff and the deceased as a couple. They had seen them together on a number of occasions and had formed that view.

103 The plaintiff attended with the deceased at family functions on a number of occasions. The details would appear to be as follows:

Christmas Eve celebration 1999.

Michael Egan’s wedding reception the wedding invitation for which was addressed: “Roberta & Augusto”

A picnic at Blackheath with Renate Egan & children.

Albert Egan’s birthday when he and the deceased dropped into to visit to the Egans at Beecroft with box of mangoes.

Participated in the sending of flowers to Michael Egan on birth of his son.

A family dinner at Banjo Patterson’s restaurant at Gladesville.

Picked up Albert Egan with Roberta and went to Renate Egan’s place at Annandale.

Had lunch with the Lyttons at the Bondi flat and also at the Lyttons place.

Attended Albert Egan’s cremation service and his wake.

104 However, there were a number of functions when the deceased visited her family without the plaintiff although he was invited. These were the following:

Oliver’s christening although on this occasion Roberta also did not attend.

Oliver’s 1st and 2nd birthday.

Martin Egan’s wedding.

Lauren’s christening.

105 There was evidence from Mr Tsolakis that the deceased had had discussions with him at court had she had told him that the plaintiff was a partner and that they were living at the Bondi flat. In a number of cases the hospital notes provide details of people who were the next of kin or contact persons. An early reference was on 31 August 2000 when the contact persons name and number was recorded as the plaintiff’s name and the telephone number of the Bondi flat. However there was also recorded on many dates the fact that she lived alone in Bondi and was a widow. There were a number of places in the notes with reference to her husband having died some time ago without reference to her current status. These comments seem to indicate that the deceased did not believe that she was in a full-time relationship with a partner.

106 Although there was the wedding invitation addressed to the deceased and the plaintiff there is no other evidence in documents suggesting that the plaintiff and the deceased were living together as a couple and that the public knew that this was the case. Quite often in these cases there are numerous documents available which would suggest such matters. It must be remembered however that the deceased was a somewhat reclusive person with only a few friends and that to a certain degree she felt distanced from her immediate family.

Discussion on the existence of a de facto relationship

107 In the last part of the relationship when both parties were suffering from their own quite separate difficulties their commitment to each other tends to appear in the evidence. The plaintiff was plainly concerned about her once he was in gaol. For her part the deceased had sympathy for the plaintiff’s plight and although she was quite sick at the time she made an effort to assist in his defence and make provision for him.

108 The plaintiff’s case was that he was living with the deceased on a full-time basis and that throughout the period he was in a de facto relationship. I have earlier found that he was not living with the deceased on a full-time basis and accordingly the evidence does not address factual circumstances surrounding the precise extent of the time they spent together.

109 There is very little evidence of the plaintiff and the deceased holding themselves out to the public as living together as man and wife. There is no doubt that the plaintiff spent time with the deceased and stayed overnight from time to time. It was, after all, a sexual relationship which apparently continued without any break, so far as the evidence is concerned, over a period of a little over three years. In the circumstances, I am not satisfied that the plaintiff was living with the deceased at the date of death as her de facto partner.

Family Provision Act claim

110 The plaintiff makes two alternative claims in the event that his claim to be a de facto partner at the date of death is not accepted by the Court. The first claim is that he was living in a close personal relationship with the deceased at the date of her death. The other claim is that he is a person who was a member of the same household of the deceased and at some time partly dependent upon her.

111 In respect of the first alternative claim I have already set out above the provisions of the legislation which are relevant to this claim. In particular the two people have to be living together and one person provides the other with domestic support and personal care.

112 In this matter there does not seem to be any doubt that the plaintiff provided a measure of domestic support for the deceased. There is evidence that the plaintiff drove the deceased to some of her chemotherapy appointments but there is no other evidence of personal care in the sense which I have discussed above when dealing with the statutory provisions. In addition I have already found that the plaintiff and the deceased were not living together on a full-time basis. That finding has to be seen in the context of the claim to be a de facto partner which has been put forward by the plaintiff in this case. In such cases the Court is concerned to see whether in fact the parties are living together on a full-time basis or only on a part-time basis as one of the indicators of the existence of a particular relationship.

113 In respect of a close personal relationship such considerations may be relevant and although I have not had any argument on this aspect, different considerations might apply to someone who was living with a party over the weekend and provided personal care during the weekend while someone else did at on other occasions. Such considerations are not however necessary for the determination in this case as the plaintiff only put forward one case to the Court, namely, that he was living on a full-time basis with the deceased. In the circumstance that the evidence does not lead to a finding that the parties “lived together” on some other basis there can be no claim that the plaintiff was living in a close personal relationship with the deceased.

114 The other claim put forward by the plaintiff was that he was a member of the deceased’s household and at some time was partly dependent upon her. In his affidavit evidence the plaintiff described his work history in which he had some paid employment in the year 2000. He then stated that from 2001 to 2002 the deceased supported him. Apparently in May 2003 he obtained a New Start allowance. There is thus some evidence that he was dependent upon her.

115 Is necessary for the plaintiff to establish that he is part of the deceased’s household. There was an extensive discussion of the meaning of "household" in Kingsland v MacIndoe [1989] VR 273. It seems clear that the word in its ordinary sense is as set out in the Oxford dictionary:

"The ‘holding’ or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organized family, including servants or attendants, dwelling in a house; a domestic establishment".

116 His Honour Mr Justice McLelland in Munro v Lake (unreported, NSWSC, 8 February 1991) dealt with the situation where a step daughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements.

117 In Mankulin v Drew (unreported, NSWSC 12 August 1993) Young J dealt with the matter at some length. He said:

“In Benny v Jones supra, I said that the question of what is a household in this legislation was awkward. I then reviewed a series of cases in Canada and North America dealing with exceptions to insurance policies whereby damage to member; of the insured's household are not covered. As I mentioned in Benny v Jones the cases have taken the view that one cannot have a household of one, a household involves the existence of a householder and that a household consists of the members who live in the domestic establishment including servants and attendants. The word is wider than family. In Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577, 580, Rand J in the Supreme Court of Canada noted the difference between people who were in the household and those who were of a household. He said "The circle of those 'in' is larger than those 'of', a good example of which is furnished by the case of Home Insurance Co v Pettit 143 So 839 (1932). There the exception was of theft by a person 'in' the household of the insured and an uncle, temporarily a guest of the insured's father was held to be of that description." See also Calverley v Gore District Mutual Fire Insurance Co (1959) 18 DLR (2d) 598, 606, where a live in farmhand was held to be a person in the household but not of the household. In that case Schroeder JA in the Ontario Court of Appeal said that a person "'in the household' can more easily disengage himself from that relationship or association than a person who falls within the more intimate category ...". It is to be noted that in the instant statute the words are "of the household".In Kingsland v McIndoe [1989] VR 273, Gobbo J had to look at the words "member of the household" under the Victorian Crimes (Family Violence) Act. His Honour considered under that Act persons whose sole relationship was that of sharing a house did not qualify as members of a household. He did, however, thoroughly discuss the English, Australian and Canadian authorities on the meaning of the word "household".

In the Court of Appeal in Benny v Jones it would not appear that any of the authorities which I considered in my judgment or those which Gobbo J considered in Kingsland's case were referred to the Court. Priestley JA, however, did deal with the question of what is a household in (1991) 23 NSWLR at 564. From the report it would not appear that any of the decisions referred to in my judgment on the question of household were referred to the Court of Appeal or that they looked at them. Priestley JA merely said: "I do not see there is any meaning of the phrase 'a member of a household of which another person was a member', which would not encompass the way in which the plaintiff lived in the same house as his friend for three and a half years."Although Priestley JA has given the leading judgment in the majority of the cases on this Act that have gone to the Court of Appeal and anything that falls from his Honour is of tremendous value whether obiter dicta or otherwise, I think it would be inappropriate to put too much weight on this dictum if it is out of line with other judicial pronouncements on the concept of household. Needham J in Moloney v Goodwin - 1 August 1989, was clearly of the view that before one could have a household one had to have a quasi family unit. Whilst a mere boarder would not be "of the household" a boarder who supported the deceased like a brother or son might have done, did qualify. In the instant case Mr and Mrs Markulin and their daughters on any description of the word "household" constituted a family unit. There is no doubt that Mrs Markulin was a member if not a co head of that family and household. The problem is whether, on the evidence, the deceased was a member of that household, at least between 1982 and 1985.

In Munro v Lake - 8 February 1991, unreported, McLelland J considered whether a stepdaughter who had regularly visited the deceased's home and stayed from Friday to Sunday night with her mother, the deceased's wife, was a member of the deceased's household. His Honour, after referring to my decision in Benny v Jones and Kingsland v McIndoe [1989] VR 273 said: "The concept of membership of a household ... connotes a degree of continuity and permanency of mutual living arrangements ...". He considered that apparent regularity of weekend visits would not be sufficient to make a person a member of a household.In Wagstaff v Wagstaff a decision which Windeyer J gave when a Master on 6 November 1991, his Honour had to deal with situation where the applicant, Nancy, was a former workmate of the deceased who had borne him a child. The deceased was still living with his legal wife at the relevant time. However, for some time the deceased would visit Nancy twice each day during the week for breakfast and in the evening and would also see his child. He also visited every Saturday and Sunday, but only on one occasion did Nancy, the deceased and the child go away together for a weekend. Nancy gave evidence that on his visits the deceased would change out of his suit into casual clothes, play with his daughter and then change back into his suit to go home.

Windeyer J said that there was no doubt at all that the principal household of the deceased was with his wife, but then said: "The question is whether or not he was also a member of the household of [Nancy] ... I accept that it may be possible in special circumstances to be a member of more than one household at the same time. Mr Green probably managed that; see Green v Green (1989) 17 NSWLR 343. But the ordinary meaning of being a member of a household requires the member to live in that household. A child living at home with the family is a member of both family and household but upon moving out to live elsewhere remains a member of the family but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient. ... It follows that the plaintiff is not an eligible person and her claim should be dismissed with costs."Windeyer J's statement that it is possible to be a member of two households must, in my view, be completely correct. It is not at all uncommon in this day and age that a child of a broken marriage will stay with his or her father from Friday night to Monday morning because the mother works weekends, and will live with his or her mother from Monday through to Friday because the father works weekdays. The child may very well have clothes and toys and books at both the mother's home and the father's home. The child would clearly be in two households. Likewise the Mr Green to whom Mr Justice Windeyer referred who had a legal wife and two de facto wives whom he kept in ignorance of each other's existence and managed to spend roughly two days a week with each, may well have been involved in three households in all of which he may have been the householder. Accordingly, I accept that it is possible for Mr Ackerman to have been a member of the Markulin household ever though he may also have been a member of the Legge household or he was a member of a household involving his suite at the Airport Hilton Hotel. If, however, the American cases are correct that it needs more than one person to constitute a household, there was no household involved with the deceased's suite at the Airport Hilton Hotel. It is not necessary to go into that matter further.

The only other decision that I think I need refer to is the decision of the Court of Appeal in Light v Anderson (1992) DFC 95 to 120. I have already set out its facts. The Court of Appeal never appeared to consider whether the plaintiff was a member of the household, presumably it was common ground that such a housekeeper was a member of the household. If she were not a member of the household it is hard to see how the Court could possibly have made an order. It seems to me that what is to be learnt from the cases, particularly the Court of Appeal decisions in Benny v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provisions Act provided that there is in fact a household and that the plaintiff has some intimate connection with the householder or another member of the household even though the plaintiff does not fall into the category of a quasi wife or quasi child. Thus, a fellow bird watcher who lived in the house and shared expenses with the deceased was a member of the same household as was a live in housekeeper who was paid a moderate wage, went away on trips with the deceased and had sex with him on more than a casual basis could be a member of the household even though she was in no way a de facto wife. It was important that she was not a mere housekeeper or employee either. When I use the words "intimate connection" I do not limit that to persons with whom there is a sexual relationship. The bond between them, however, must be quasi familial or that of friendship rather than that of landlord and boarder or master and servant. However, there is nothing to stop a person who enters a house as a servant ending up as an intimate friend.”

118 In the present case the plaintiff once again faces the same difficulty with presenting a particular case which the Court has not accepted. One is left without any evidence as to the extent of the regularity of these visits other than that which might be inferred from the fact they had a sexual relationship and they saw each other during that period when on occasions the plaintiff stayed overnight. It is this absence of evidence that prevents me from being satisfied that the plaintiff was a member of the household. The claim therefore must fail.

119 I dismiss the proceedings and, subject to any submissions, order the plaintiff to pay the defendants' costs. To the extent that the defendants' costs are not paid by the plaintiff they can be retained or paid out of the estate of the deceased on an indemnity basis.

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