R (Plaintiff) v Bong - [2013] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
R (PLAINTIFF) v BONG & ORS
[2013] SASC 39
Reasons for Decision of Judge Burley a Master of the Supreme Court
19 March 2013
SUCCESSION - FAMILY PROVISION - ELIGIBLE APPLICANTS - SPOUSE OR PARTNER
Application for domestic partner declaration - plaintiff and deceased knew each other for approximately 38 years - from time to time lived together in a "close personal relationship" - plaintiff married on three occasions each, apart from the last, of relatively short duration - whether plaintiff and deceased were domestic partners one of the other as at date of death or at an earlier time for a period of three years or an aggregate period of three out of four years - alternatively, whether it is in the interests of justice that a declaration be made.
Family Relationships Act 1975 Part 3; Domestic Partners Property Act 1996 ss 3 and 4; Inheritance (Family Provision) Act 1972 ss 4, 6 and 7; Statutes Amendment (Domestic Partners) Act 2006 s 7, referred to.

R (PLAINTIFF) v BONG & ORS
[2013] SASC 39
JUDGE BURLEY:

By a Summons dated 19 July 2012 the plaintiff seeks a declaration pursuant to the Family Relationships Act 1975 (“FRA”) that the plaintiff and another person (now deceased) were, on a given date, domestic partners and, if such a declaration is granted, an order for provision out of the estate of the deceased (who I shall refer to as “K”), pursuant to ss 6 and 7 of the Inheritance (Family Provision) Act 1972 (“IFPA”). Sub-section 6(ba) IFPA provides that a domestic partner of a deceased person is entitled to claim the benefit of the Act. In s 4 IFPA, a “domestic partner” is defined as follows:
… in relation to a deceased person, means a person declared under the Family Relationships Act 1975 to have been the domestic partner of the deceased as at the date of his or her death, or at some earlier date;
Two pieces of legislation deal with domestic partners: the FRA and the Domestic Partners Property Act 1996 (“DPPA”). They contain similar provisions. The definition of “domestic partner” and “close personal relationship” are defined in the same way. However, there are some differences. Section 11A FRA refers to a period of three years, whereas there is no mention of the three year period in the DPPA. Section 11B FRA incorporates that three year period.[1] I mention the DPPA only for the sake of completeness. Its provisions have no application in this matter.
[1] Section 11B(2)(a).
Section 11B FRA provides for court declarations as to domestic partners. If the applicant comes within s 11A, a declaration must be granted pursuant to s 11B(2)(a). There is an additional basis upon which the declaration as to domestic partners might be granted which is provided for in s 11B(2)(b)(i) and (ii). That part of s 11B provides that in cases other than domestic partners who come within s…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R (Plaintiff) v Bong

Details

AGLC: R (Plaintiff) v Bong [2013] SASC 39
Case: [2013] SASC 39
Decision Date

CaseChat Overview and Summary

In the case of R v Bong, the plaintiff sought a declaration that the deceased was their domestic partner as defined by the Family Law Act. The matter was heard and determined by the Federal Circuit and Family Court of Australia. The central issue was whether the relationship between the plaintiff and the deceased met the criteria for being considered a domestic partnership under the Act.

The court was required to decide if the relationship between the plaintiff and the deceased met the threshold of a domestic partnership as defined by the Family Law Act. Specifically, the court examined whether the relationship met the statutory criteria for being a domestic partnership on the date of the deceased's death, as well as whether there were any earlier periods where the relationship met the criteria. The criteria included the duration of the relationship, the nature and extent of common residence, the degree of financial dependence and interdependence, the ownership, use and acquisition of property, the degree of mutual commitment to a shared life, the performance of household duties, and the reputation and public aspects of the relationship.

The court found that the relationship did not meet the statutory criteria for being a domestic partnership at the date of the deceased's death. The court noted that the plaintiff was married to another person for three years prior to the deceased's death and that there was no evidence of common residence, financial interdependence, or property ownership between the plaintiff and the deceased. The court further found that the marriage to the other person precluded a finding of mutual commitment to a shared life. The court also concluded that the relationship did not meet the criteria for being a domestic partnership at any earlier date.

The court dismissed the plaintiff's application for a declaration that the deceased was their domestic partner.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The next section to be referred to is s 11B. That enables a person to claim declaratory relief. The relevant parts of the section are as follows:11B—Declaration as to domestic partners(1) A person whose rights or obligations depend on whether—(a) he or she and another person; or(b) 2 other persons,were, on a certain date, domestic partners 1 of the other many apply to the Court for a declaration under this section. I have already set out sub-s (2) which refers to domestic partners within the meaning of s 11A or, in the alternative, to the case where it is in the interests of justice that a declaration be made. Sub-section 11B(3) sets out the matters to be considered by the Court on such an application pursuant to the section. These are:(a) the duration of the relationship;(b) the nature and extent of common residence;(c)the degree of financial dependence and interdependence, or arrangements for financial support;(d) the ownership, use and acquisition of property;(e) the degree of mutual commitment to a shared life;(f) [immaterial](fa) [immaterial](g) [immaterial](h) the performance of household duties;(i) the reputation and public aspects of the relationship.There is very little evidence regarding factors (c) and (d). The first question to be addressed is whether or not the relationship existed as at the date of death of K. For the three years prior to his death in June 2011, the plaintiff was married to his present wife. He and his wife lived together in Adelaide. Until late 2010, K resided in Victoria, although there was frequent contact both by way of telephone and visits between K and the plaintiff. There was no common residence occupied by them. There was no evidence of any financial dependence or inter-dependence between them. There was no evidence that they held property in common. As to the degree of mutual commitment to a shared life, I consider that the marriage of the plaintiff to C precludes a finding that there was a sufficient mutual commitment to a shared life. When these factors are taken into account, it could not be said of the plaintiff and K that, at the date of death, there was a close personal relationship between two persons who lived “together as a couple on a genuine domestic basis”. I accept that the plaintiff may have performed the preponderance of household duties whilst K was ill and living at Elizabeth East. That by itself or in combination with any other facts would not be sufficient to justify a finding that the relevant relationship existed as at the date of death. For the above reasons I have concluded that the plaintiff is not entitled to a declaration that the plaintiff and the deceased were domestic partners one of the other as at the date of K’s death. The next matter to be considered is whether or not there existed at an earlier date the relevant relationship between the plaintiff and K. This involves an examination of the relationship between them from December 1972 to the date of death, looking for continuous periods of three years, or an aggregate of three years out of four, by reference to which it could be said that, on a consideration of the factors referred to in s 11B(3) FRA, they were domestic partners one of the other. They lived together at Ashburton between February 1973 and April 1974. The plaintiff then moved to Adelaide where he remained until August 1985. Within that period he married the woman called J and they lived together between December 1983 and mid-1985. The nature of that relationship, even though it was only relatively short-lived, preclude a finding that the plaintiff and K were domestic partners one of the other between 1984 and 1985.