Re Bertine

Case •

[2019] VSC 228

•

11 April 2019
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2018 02943

IN THE MATTER of the Estate of CHARLES DILLON BERTINE, deceased

MOLLIE-ROSE SCAPETIS Plaintiff
v
SHAWN DOMINIQUE KING Defendant

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JUDGE:

Derham AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

4 February 2019

DATE OF JUDGMENT:

11 April 2019

CASE MAY BE CITED AS:

Re Bertine

MEDIUM NEUTRAL CITATION:

[2019] VSC 228

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PRACTICE AND PROCEDURE – Plaintiff seeks summary dismissal of caveat – Whether defendant has no real prospect of success – Whether discretion should be exercised to allow matter to proceed to trial – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Re Demediuk [2016] VSC 587 – Civil Procedure Act 2010 (Vic) ss 62, 63(1), 64.

PROBATE – Caveator objecting to grant of letters of administration to registered domestic partner – Defendant filed grounds of objection with particulars – Grounds alleging that no registrable domestic relationship existed and registration obtained for an improper purpose – Whether defendant has a real prospect of success in resisting grant of administration to registered domestic partner – Summary judgment refused – Caveator’s claim raises a debatable point of law – Where there are questions to be tried and matters to be investigated by the Court before it can determine to whom a grant of representation should be made, it is inappropriate to summarily determine the caveator’s claims – Not in the interests of justice to summarily dispose of the caveat – Disputes raised by the caveat are of such a nature that only a full hearing on the merits is appropriate.

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APPEARANCES:

 Counsel Solicitors
For the Plaintiff Mr PH Barton Joan Scapetis
For the Defendant Mr M McKenzie Prior Law

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Procedural history.............................................................................................................................. 2

Affidavits............................................................................................................................................. 3

Dominique’s Caveat.......................................................................................................................... 4

Summary Judgment test.................................................................................................................... 6

Administration and Probate Act...................................................................................................... 8

Relationships Act............................................................................................................................. 10

The issues.......................................................................................................................................... 12

Analysis.............................................................................................................................................. 16

Conclusion......................................................................................................................................... 22

Schedule............................................................................................................................................. 23

Grounds of Objection................................................................................................................. 23

HIS HONOUR:

Introduction

  1. The plaintiff (known as Mollie) applies for summary judgment pursuant to r 23.01(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) and s 61 of the Civil Procedure Act 2010 (Vic) (CPA).[1]  

    [1]Summons filed 3 October 2018.

  1. Mollie is the applicant for letters of administration of the intestate estate of her deceased registered domestic partner, Charles Dillon Bertine (known as Dillon).  The defendant (known as Dominique), is Dillon’s mother and has filed a caveat against the grant of administration to Mollie.

  1. Mollie claims a grant of administration on the basis that she was Dillon’s registered domestic partner at the time of his death on 13 October 2017, intestate.[2]  The registration of Mollie and Dillon as domestic partners was made pursuant to the Relationships Act 2008 (Vic) (Relationships Act) on 22 July 2014.  Dillon was never married and had no children.  He was 27 years old at the time of his death having been born in the State of Florida, in the United States of America (USA), on 28 June 1990. 

    [2]He died by his own hand.

  1. Dominique’s caveat claims that Mollie was not in fact the genuine domestic partner of Dillon at the date of his death; that the application to be registered as domestic partners was not made for the purpose of registering a domestic relationship but to enable Dillon to apply for a partner’s visa under the Migration Act 1958 (Cth) (Migration Act).[3]

    [3]The full text of the grounds of the caveat is set out in the Schedule to these reasons.

  1. The issue between the parties is who has the better right to a grant of representation.  That turns primarily on who has the superior right under the intestacy provision of the Administration and Probate Act 1958 (Vic) (A&P Act) to the estate of the deceased.  The evidence given in support of Mollie’s application for a grant shows that Dillon’s estate largely comprises the proceeds of a life insurance policy forming a part of his Superannuation Fund amounting to some $416,000.00.  Dillon had not made a binding nomination in relation to the benefits of his Fund, and the Trustee of the Superannuation Fund has advised that it will not make any decision on whether the monies are to be paid into the estate until after letters of administration are granted.[4]

    [4]Inventory of Assets and Liabilities, being exhibit B to Mollie’s ‘affidavit of administrator’ made 21 February 2018.

  1. Dillon died before the commencement on 1 November 2017 of the Administration and Probate and Other Acts Amendment (Succession and Related Matters) 2017 (Vic).  That Act introduced substantial changes to the intestacy provisions in the A&P Act. The new intestacy provisions do not apply to this matter. The result is that pursuant to s 51(1) of the A&P Act, the ‘partner of an intestate who does not leave any child (or other issue) is entitled to the intestate's residuary estate.’  Dillon had no children, or other issue, so far as is known.

  1. The burden of the submissions made by Counsel for Mollie was simple — could there be any doubt that Mollie was, at the date of Dillon’s death, his ‘partner’ by virtue of being his registered domestic partner under the Relationships Act?In fact, the issues arising from the grounds of the caveat, and the submissions which follow from the grounds, went much further than that, as I will explain. 

  1. The question whether Mollie was either Dillon’s registered domestic partner or unregistered domestic partner at the time of his death is the most important factor in determining who should be granted letters of administration of the deceased estate and is, in this case, a proxy for who will inherit under the intestacy.

Procedural history

  1. Before the commencement of the proceeding, two caveats against the making of a grant of representation were lodged in relation to Dillon’s estate. The first by Mollie on 10 November 2017 and the second by Dominique on 4 December 2017. An originating motion for a grant of letters of administration was subsequently filed by Mollie on 23 February 2018. On 26 March 2018, Dominique lodged her grounds of objection and, on 29 March 2018, issued a summons for directions as required by r 8.07(1) of the Supreme Court (Administration and Probate) Rules 2014 (Vic) (Probate Rules).

  1. Dominique’s summons came before the Court on 17 May 2018 and orders were made by Zammit J for the further conduct of the proceeding.  Her Honour ordered (among other directions)[5] that the Court

shall try and determine as a preliminary issue whether the plaintiff was the validly registered domestic partner of the deceased at the date of his death.

[5]Dominique was also joined as the defendant to Mollie’s application.

  1. A further directions hearing was adjourned to 14 September 2018 before McMillan J who ordered a further adjournment to 21 September to accommodate the parties having booked a private mediation for 17 September 2018.  The mediation was unsuccessful and on 21 September 2018, Mollie foreshadowed her desire to apply for summary judgment.  Zammit J allowed the application to be made and, after the summons was filed, orders were made on the papers for the filing of submissions.  The summary judgment application came before me on 4 February 2019.

Affidavits

  1. Mollie’s affidavit in support of the summons, made on 24 September 2018 (Mollie’s fourth affidavit), relies on her evidence contained in her affidavit made on 27 August 2018 (Mollie’s third affidavit), which was made for the purpose of the determination of the preliminary issue ordered to be tried. In addition, Mollie filed affidavits in support of her application for a grant,[6] and nine further affidavits supporting the validity of the registered domestic relationship. These were made by Rodney Andrew Knight,[7] Donna Lee Atchison,[8] Celeste Hopcraft,[9] Michelle Kiteley,[10] Lambes Scapetis,[11] Chloe-Mae Scapetis,[12] Daniel Simon Pitham,[13] Megan Kiteley[14] and Helen Bertine.[15] 

    [6]Made on 21 February 2018 (Mollie’s first affidavit) and 26 February 2018 (Mollie’s second affidavit).

    [7]Made on 21 August 2018 (Rodney’s affidavit).

    [8]Made on 27 August 2018 (Donna’s affidavit).

    [9]Made on 25 August 2018 (Celeste’s affidavit).

    [10]Made on 24 August 2018 (Michelle’s affidavit).

    [11]Made on 23 August 2018 (Lambes’ affidavit).

    [12]Made on 23 August 2018 (Chloe’s affidavit).

    [13]Made on 30 August 2018 (Daniel’s affidavit).

    [14]Made on 11 September 2018 (Megan’s affidavit).

    [15]Made on 9 April 2018 (Helen’s affidavit).

  1. In her fourth affidavit in support of her application for summary judgement, Mollie states that the facts on which her claim is based are contained in her third affidavit and the exhibits to it, which she verifies again. She then states that, in her belief, the defence to her claim has no real prospect of success.[16]

    [16]Mollie’s fourth affidavit.

  1. Dominique relies on affidavits made for the purposes of the trial of the preliminary issue made by her,[17] Brian Ronald Willis[18] and Cassandra Monet Torino.[19]

    [17]Shawn Dominique King made on 22 June 2018 (Shawn’s first affidavit) and 13 September 2018 (Shawn’s second affidavit).

    [18]Made on 26 July 2018 (Willis affidavit).

    [19]Made on 31 July 2018 (Cassandra’s first affidavit) and undated affidavit filed on 8 October 2018 (Cassandra’s second affidavit).

Dominique’s Caveat

  1. The lodging of a caveat is authorised by s 58 of the A&P Act. That section provides that a person may lodge a caveat in accordance with the rules of the Supreme Court against the making of a grant.  The relevant rules are found in ord 8 of the Probate Rules.  For present purposes, the relevant rule is r 8.06, which sets out the grounds ‘which may be stated’ in the caveat where a grant is sought as upon an intestacy, including relevantly:[20]

(a)that the applicant for the grant does not have the capacity or stand in the relationship in which the applicant seeks administration;

(b)that the caveator or some other person seeking administration has a better right, stating the nature of the right.

[20]Probate Rules rr 8.06(2)(b), (c). The rule does not prevent other appropriate grounds being stated: r 8.06(3).

  1. A caveat expires 30 days after the Registrar gives notice to the caveator that an application for a grant of probate has been filed unless, within that period, the caveator serves on the plaintiff and files with the Registrar a statement of the grounds of objection to the making of the grant.[21] 

    [21]Probate Rules r 8.03(3)(a).

  1. A caveator must file particulars to establish not only that they have standing to lodge the caveat, but also a prima facie case before the application can proceed.  Standing is usually established by the caveator having a beneficial interest under the intestacy provisions.[22]  In this case there is no dispute as to standing as Dominique will be entitled under the intestacy provisions if, as she contends, the registration of Mollie as a registered domestic partner is revoked (as invalid from the outset) or declared invalid and set aside for the purposes of this proceeding.  It is not disputed that Dominique is not an eligible person under pt IV of the A&P Act and has no right to commence a family provision claim.

    [22]Re Przychodski [2016] VSC 781, [17].

  1. The caveator’s particulars must set out a sufficient factual basis for the grounds of objection.  The grounds and particulars define the questions for trial in a way similar to the function of pleadings and enable the applicant for a grant of administration to understand the case put against the making of a grant with precision and particularity and avoid surprise at the trial.[23]  It is I think worth repeating the summary given by McMillan J in Re Przychodski[24] of some of the principles regarding the provision of proper and adequate grounds for caveats:[25]

The Court in its probate jurisdiction has an inquisitorial role that requires a greater supervision and control of proceedings than adversarial common law proceedings.[26]  The primary function of the Court in exercising its probate jurisdiction is to make grants of representation.  Caveats act as a mechanism for notice from the Court to a party interested in an estate that an application for a grant of representation has been made in respect of a deceased estate.

The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of representation is made can be investigated and dealt with by the Court.  This ensures that any grant gives effect to the final valid testamentary wishes of the deceased or the intestacy provisions and title to any real or personal property owned by the deceased at the date of their death passes in accordance with these wishes or provisions.  All participants in a proceeding must be mindful that the purpose of the probate jurisdiction is ensuring that the testamentary intentions of a deceased person are carried out and the beneficiaries receive what is due to them.[27]  

[23]Ibid [19].

[24][2016] VSC 781.

[25]Ibid [14]–[15].

[26]See, eg, Re Fuld [1965] P 405, 409F–411B; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786, [264] (Lindsay J) (‘Re Kouvakas’).

[27]In the Goods of William Loveday [1900] P 154, 155–6, applied in In the Goods of Galbraith [1951] P 422. See also, Bull v Fulton (1942) 66 CLR 295, 337; Re Estate Wight; Wight v Robinson [2013] NSWSC 1229, [17]–[20]; Re Kouvakas [2014] NSWSC 786, [211]; Re Cockell; Cole v Paisley [2016] NSWSC 349, [52].

  1. The caveat procedure has the effect of initiating proof of the deceased's will in solemn form.  That traditionally involved all of the evidence being given orally, but it is now usual for that evidence to be the subject of affidavits, in addition to the standard affidavit filed in support of the application made in common form.  The grounds of objection set out in the caveat and their particulars are the rough equivalent of a pleading in a writ proceeding.  Where, as here, there is a challenge to an application for a grant of probate by a caveator, the plaintiffs are effectively in the position of defendants in responding to the grounds of objection filed by the defendants.

  1. The grounds and particulars filed in this case are set out in the Schedule to these reasons.

Summary Judgment test

  1. There is no doubt, and it was not contended to the contrary, that the CPA and the Rules relating to applications for summary judgment apply to probate proceedings.[28]

    [28]See ord 22, pt 2, of the Rules and r 1.05 of the Probate Rules; see also Van Wyk v Albon [2011] VSC 120; Re Demediuk [2016] VSC 587; Gardiner v Hughes (2017) 54 VR 394; Munro v Munro [2018] VSC 747, [16].

  1. Part 4.4 of the CPA sets out the test for summary judgment — a court may give summary judgment if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, has no real prospect of success.[29]

    [29]CPA s 63.

  1. This liberalises the rules governing summary judgments in Victoria, so that it is easier to dispose of unmeritorious claims or defences summarily.  The Court of Appeal has stated that the test

should be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[30]

[30]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29] (Warren CJ and Nettle JA, Neave JA agreeing).

  1. The test must be applied according to its own terms and not according to considerations of whether the proceeding is ‘hopeless’ or ‘bound to fail’. To adopt ‘an unduly constrained, historical approach to the construction of s 63’ would ‘subvert the purpose of the provision’.[31]

    [31]Ibid [25] (Warren CJ and Nettle JA, Neave JA agreeing).

  1. However, courts must continue to exercise the power to terminate proceedings summarily with caution.  Courts should therefore only exercise the power if it is clear that there is no real question to be tried.  This is so, irrespective of whether an application for summary judgment is made on the basis that:  the pleadings do not disclose a reasonable cause of action, and no amendment could cure this error;  or the action is frivolous, vexatious or an abuse of process; or the application for summary judgment is supported by evidence.[32]

    [32]Ibid [35] (Warren CJ and Nettle JA, Neave JA agreeing).

  1. The power to give summary judgment must be exercised in accordance with the overarching purpose of the Act and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[33]

    [33]Ibid [42] (Neave JA).

  1. These principles were confirmed by the Court of Appeal in Mandie v Memart Nominees Pty Ltd[34] where Kyrou, Ferguson and McLeish JJA observed:

According to Lysaght: a prospect which is not ‘real’ is ‘fanciful’; although the ‘no real prospect of success’ test in s 63(1) of the CP Act is more liberal than the common law test of ‘hopeless’ or ‘bound to fail’, there may not be much difference between them in practice; and, properly understood, a real question to be tried is one which realistically might result in the respondent to an application for summary judgment succeeding in the proceeding.

[34][2016] VSCA 4, [45] (footnote omitted).

  1. If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:

(a)it is not in the interests of justice to summarily dispose of the proceeding;[35] or

(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.[36]

[35]CPA s 64(a).

[36]Ibid s 64(b).

  1. Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[37]

    [37]Barber v State of Victoria [2012] VSC 554, [15].

  1. In Re Demediuk,[38] McMillan J applied pt 4.4 of the CPA to caveat proceedings that challenged an application for a grant of probate of a will.  Although the challenge to the grant of probate was not dismissed summarily, the decision confirms the applicability of the relevant provisions of the CPA to proceedings in the probate jurisdiction of the Court.

    [38][2016] VSC 587, [12]–[18].

Administration and Probate Act

  1. Under the A&P Act in force at the date of Dillon’s death, the first person entitled to his residuary estate is his ‘partner’, where he does not leave any child (or other issue), which is the case here.[39]  The provisions relevant to determine who is a ‘partner’ provide:

    [39]A&P Act s 51(1).

(a)        the partner of a person who dies means the person’s spouse or domestic partner;[40]

[40]Ibid s 3 (definition of ‘partner’).

(b)        the domestic partner of a person who dies means a registered domestic partner or an unregistered domestic partner of that person;[41]

[41]Ibid (definition of ‘domestic partner’).

(c)        registered domestic partner of a person who dies means a person who, at the time of the person’s death, was in a registered domestic relationship with the person within the meaning of the Relationships Act;[42]

[42]Ibid (definition of ‘registered domestic partner’).

(d)       unregistered domestic partner of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person:[43]

[43]Ibid (definition of ‘unregistered domestic partner’).

(i)     was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and

(ii)  either had lived with the person in that manner continuously for a period of at least two years immediately before the person's death or is the parent of a child of the person, being a child who was under 18 years of age at the time of the person's death.

  1. In Victoria, as a general rule, the Court will grant administration of the estate to the person with the greatest interest in the distribution of the estate.[44]  But it is important to observe that this is a rule of practice and:

    [44]Re Pierce (1886) 12 VLR 733, 735–6; In the Will of Parsons (1887) 13 VLR 169, 171; In the Goods of Pryse [1904] P 301; Re Will of Orloff (deceased) (No 2); Terracall v Churkovich (2010) 24 VR 603, [21]–[22].

(a)        there are several other practice rules that might be applicable depending on the circumstances;[45]

(b)        the Court has a discretion as to whom it will grant administration[46] and that discretion is a part of the inherent power of the Court to look to the due and proper administration of the estate of the deceased and the interests of those beneficially entitled to it;[47]

(c)        everything turns on the facts and circumstances of the case at hand.

[45]See, eg, LexisNexis Butterworths, Wills Probate and Administration Service Victoria, vol 1 (at Service 67) [23,100]; Ross A Sandberg, Griffith’s Probate Law and Practice in Victoria (LawBook, 3rd ed, 1983) 192.

[46]Re Pierce (1886) 12 VLR 733, 736.

[47]In the Goods of William Loveday [1900] P 154, 155–6.

Relationships Act

  1. Mollie and Dillon were registered as domestic partners under the Relationships Act on 22 July 2014.  At that date, Version 6 of the Relationships Act was in force.  At the date of the application for the registration (21 May 2014) Version 5 was in force.  The parties agreed that the differences between the two versions are immaterial. 

  1. Under the Relationships Act, a registered domestic relationship means a relationship between two persons that is registered under s 10(3)(a).[48]  Persons who are in a ‘registrable domestic relationship’ may apply to the Registrar of Births, Deaths and Marriages (the Registrar) in an approved form, for registration of that relationship if one of the persons in the relationship lives in the State and each of the persons is not married or in a registered relationship and not in another relationship that could be registered under pt 2.2 of the Act (being the Part of the Act enabling registration of a registrable domestic relationship).[49]

    [48]Relationships Act s 3.

    [49]Ibid s 6.

  1. A registrable domestic relationship means:[50]

a relationship (other than a registered relationship) between two adult persons who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person –

(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).

[50]Ibid s 5.

  1. The requirements for an application to register a relationship are that the application must be accompanied by a statutory declaration from each of the applicants verifying that each applicant consents to the registration, is not married or in a registered relationship and is not in another relationship that could be registered.  In addition, the declaration must include evidence of the identity and age of each applicant.[51]  The Registrar may require further information[52] and one or both applicants may withdraw the application within 28 days after the date of lodgement.[53]

    [51]Ibid s 7.

    [52]Ibid s 8.

    [53]Ibid s 9.

  1. Subject to the application not being withdrawn and the expiry of 28 days after lodgement or the time for the provision of the further information requested, the Registrar must register a ‘registrable domestic relationship’ application within a reasonable time.[54]

    [54]Ibid s 10.

  1. The registration of a registered relationship is revoked by the death of either person in the relationship or the marriage of either person in the relationship (whether to each other or another person).[55]  The registration may also be revoked by the Registrar, on application by either person.[56]  The Court is also given power to revoke the registration in the following terms:[57]

A court may order the revocation of the registration of a registered relationship—

(a)       on application made by an interested person; or

(b)       on its own motion.

[55]Ibid s 11(1).

[56]Ibid s 11(2).

[57]Ibid s 16.

  1. The Registrar must maintain a register of registered relationships to be known as the Relationships Register.[58]  The register may be searched and upon payment of a prescribed fee the Registrar may issue a certificate certifying particulars contained in an entry.[59]  This certificate is then admissible in legal proceedings as evidence of the entry to which the certificate relates and the facts recorded in the entry.[60]  Section 29 of the Act prescribes 20 Penalty units for false representations made in an application or document.

    [58]Ibid s 17(1).

    [59]Ibid ss 21, 22.

    [60]Ibid s 22(2).

  1. Part 3 of the Relationships Act deals with relationship agreements, property and maintenance. It establishes a regime for the entry into relationship agreements dealing with financial matters (as defined) and other matters, and their variation or setting aside. In the definitions applicable to pt 3, the term ‘domestic relationship’ is defined in s 35(1) to mean:[61] 

(a)       a registered domestic relationship;

(b)a relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender); or

(c)the relationship between two adult persons who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person for fee or reward or on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

[61]Ibid s 35(1) (definition of ‘domestic relationship’).

  1. The section then gives guidance in determining whether a domestic relationship, other than a registered domestic relationship, exists or has existed, by reference to all the circumstances of the relationship and sets out eight factors ‘as may be relevant in a particular case’ including the degree of mutual commitment to a shared life, the duration of the relationship, the care and support of children and so on.  Importantly, none of these matters apply where the relationship is a registered domestic relationship.

The issues

  1. Mollie claims that at the time of Dillon’s death she was in a registered domestic relationship with him within the meaning of the Relationships Act.  This is based on a certified copy of a Relationship Certificate dated 22 July 2014 (the Certificate),[62] which was unrevoked at the deceased’s death.  Counsel for Dominique did not object to the admissibility of the Certificate for the purposes of the application for summary judgment.  There is thus no dispute for present purposes that Mollie and Dillon were in a registered domestic relationship at the time of his death.

    [62]Exhibit A to Mollie’s second affidavit and Exhibit MS-12 to Mollie’s third affidavit. The Registrar of Births, Deaths and Marriages was also subpoenaed by Mollie to produce ‘all documents relating to the application for registration and registration’ of the domestic relationship between Mollie and Dillon: Subpoena filed 2 October 2018.  The Registrar produced an extract from the Register recording the registration and a copy of the application, which was tendered as an exhibit and marked ‘P1‘.

  1. Mollie also contends that, in the alternative, she would come within the definition of an unregistered domestic partner at the date of the deceased’s death, but her Counsel submitted that question is outside this application for summary judgment.  It is outside the application for summary judgment because Mollie does not address any of the facts relevant to that question. Her affidavits only address the issue of whether she was validly registered as the deceased’s domestic partner.  In her third affidavit, Mollie says:

As the date of registration of Dillon and me as domestic partners was 22 July 2014, and his visa application which the defendant (Dominique) deposes is related to the registration was in August 2014, I do not in this affidavit deal with matters roughly after that time.  Insofar as the deponents of affidavits filed on behalf of the defendant have done so I do not answer them in this affidavit. If I fail on the preliminary issue I will continue this proceeding as, if I was not Dillon’s registered domestic partner, I was at his death his unregistered domestic partner, and I will then file further material dealing with the time up to the date of Dillon’s death in 2017 establishing this.

  1. It is thus clear that Mollie addresses only the issue of whether she is a validly registered domestic partner of Dillon at the date of his death.  She does not deal with matters occurring after about August 2014, when the application for a partner visa was made and granted.  The other affidavits filed in support of Mollie’s position proceed on the same footing and do not deal with events after about August 2014.

  1. Mollie contends that because s 51 of the A&P Act provides that, in the circumstances, she takes the whole of Dillon’s estate, she has the better entitlement to a grant of representation. 

  1. The grounds advanced on Dominique’s behalf, and Counsel’s submissions in support of them, show that in summary she contends that:

(a)        when the registration of their relationship was obtained, Mollie and Dillon were not in a ‘registrable domestic relationship’;

(b)        the registration of their relationship was procured by false statements made to the Registrar;

(c)        that the Court in this proceeding can find that the registration of the relationship was improper, non-compliant with the Relationships Act and subject to being revoked by the Court;

(d)       the Court can also find the registration was obtained for an improper purpose and that the registration is invalid ab initio and should be revoked;

(e)        the Court is entitled to consider the circumstances surrounding the obtaining of the Certificate and rule as to whether it is prepared to permit a falsely obtained certificate to be used to oust the defendant’s entitlement, as next of kin, to a grant of representation; 

(f)         the Certificate of registration is, at best, only prima facie evidence of the existence of the relationship.  The Court is not bound by any rule of law to accept the Certificate as final and binding.  It is no more than evidence of the registration of the relationship and does not preclude the Court from considering whether the relationship in fact existed: Chao v Minister for Immigration and Border Protection;[63] Attorney-General (Cth) v ’Kevin and Jennifer’;[64]

(g)        at the date of Dillon’s death, Mollie and Dillon were not ‘unregistered domestic partners’ within the meaning of the A&P Act. Dominique contends that they were not living as a couple on a genuine domestic basis and had not lived together in that manner continuously for a period of at least two years immediately before Dillon’s death.[65]  Dominique gives evidence in support of this contention;

(h)        because Mollie was not the domestic partner of the deceased at the time of his death, Dominique and the father of the deceased, Donald Davis Bertine Jr, as next of kin are the appropriate persons to apply for letters of administration in the estate of the deceased.

[63][2017] FCCA 2449, [18] (Chao).

[64](2003) 172 FLR 300, [354] (Kevin and Jennifer).

[65]This refers to the definition of ‘unregistered domestic partner’ in the A&P Act.  There being no children of Mollie and Dillon, the second element of the second part of that definition is not relevant.

  1. Mollie responds that:

(a)        all that the A&P Act requires is that Mollie be a ‘partner’, as defined.  This is satisfied by the registration of the relationship at the date of Dillon’s death;

(b)        the submissions made on behalf of Dominique seek that the Court go behind the Certificate of registration and enquire into whether there was at the time a registrable domestic relationship; that course is not appropriate because all that Mollie needs to prove is that she was in a registered domestic relationship at the date of death. The Certificate of registration establishes that as a fact.  The authorities relied on by Dominque are distinguishable;

(c)         even if it is appropriate to go behind the Certificate of registration, the requirements of a ‘registrable domestic relationship’ under the Relationships Act are different from the requirements for an unregistered domestic partnership under the A&P Act.  It is the latter which requires that they were living together as a couple on a genuine domestic basis and had been doing so continuously for a period of at least two years immediately before the person’s death. By contrast, under the Relationships Act there is no requirement that the couple be living under the same roof and no requirement that the couple be living together on a genuine domestic basis in order to be in a ‘registrable domestic relationship’;

(d) If, in an application of this kind, the Court could go behind the registration and enquire into whether there was a registrable domestic relationship, this would have far-reaching consequences. It would, for example, impact on the compellability of a ‘partner’ to give evidence in criminal proceedings. Under s 18 of the Evidence Act 2008 (Vic) (Evidence Act) a de facto partner of an accused may object to giving evidence for the prosecution. Clause 11(6) of pt 2 of the Dictionary to the Evidence Act provides that a person is in a de facto relationship with another person if those two persons are in a registered domestic relationship within the meaning of the Relationships Act.  Otherwise, there needs to be a determination regarding whether the two persons have a relationship as a couple and, in determining that, all the circumstances of the relationship are to be taken into account, including a range of matters comprising the duration of the relationship, the nature and extent of the common residence, the degree of financial interdependence, and so on.  This shows that the certificate of a registered domestic relationship is designed and intended to avoid enquiries into whether there is such a relationship.

Analysis

  1. Dillon was born in the USA on 28 June 1990.  Dillon relocated from the USA to Australia and began living with his mother at 52 Abbott Street, Sandringham, Victoria (Abbott Street), in September 2011.  Initially, Dillon resided in Australia pursuant to a work and holiday visa. Later, Dillon obtained a student visa. 

  1. Mollie was born in Australia on 16 December 1992.  They met in May 2013 in Melbourne.  Mollie was then 20 and Dillon was 22 years of age.  Mollie was then living with her mother at 19A Albert Street, Mordialloc.  They became sexually intimate within a short time. The affidavits filed by and on behalf of Mollie give an extensive factual account of the history of the relationship between her and Dillon up to August 2014, including their financial interdependence.  Dominique’s affidavits dispute the account given by Mollie at many levels.  It is only necessary to give a couple of examples of the factual disputes.

  1. One matter raised by Dominique is that Mollie provided misleading information to the Registrar on the application to register their domestic relationship (dated 21 May 2014) by stating that they both lived at Dominique’s address at Abbott Street.  In relation to this, Mollie states:

We originally wanted to put the Albert Street address down on the application as this was where we spent more time (especially during the day) but in conversations in my presence at Dominique’s house, Dominique, who was greatly in favour of us registering our relationship, asked us to put Abbott Street as our usual place of residence. Dillon subsequently told me that she repeated this request when I was not there and he said that she said that it was because she was going through legal proceedings with Luke and because she was attempting to claim maintenance from him and did not want any paperwork saying that Dillon was not living at Abbott Street.[66]

[66]Mollie’s third affidavit, [27].

  1. It is no doubt correct, as was submitted on behalf of Mollie, that by the definition of ‘registrable domestic relationship’ it was not required that the couple live under the same roof, so that the relevance of the address in the application for registration is of minimal impact.  However, the evidence given by Dominique goes much further than merely challenging the efficacy of the application.  It goes to the underlying relationship and whether or not it properly qualified as a ‘registrable domestic relationship’.  There is a significant dispute of fact in this regard.

  1. Another matter raised by Dominique is that the application to register the relationship was entered into for the purpose of enabling Dillon to apply for a partner visa. Dominique seeks to apply to the Court to revoke the registration of the relationship between Mollie and Dillon.  She says:

I know that the relationship was registered to assist with the VISA application because following the deceased’s death, I was part of a conversation with the Plaintiff, my current partner Guy Angwin and the funeral celebrant, Jon Von Goes.  The conversation took place on or around 17th or 18th December 2017. The celebrant asked the Plaintiff how they met and about their relationship. My recollection is that the Plaintiff told the celebrant that her and the deceased ‘had to make a decision because of Dillon’s visa’ and so they registered their relationship.[67]

[67]Dominique’s first affidavit, [16].

  1. The power of this Court to revoke the registration while it subsists is not in dispute. Section 16 of the Relationships Act gives the Court power to revoke the registration either on the application of an ‘interested person’ or on the Court’s own motion. Whether the power is able to be employed after the registration has been revoked by the death of one of the partners (as provided by s 11 of the Relationships Act) is uncertain. Mollie submitted that after Dillon’s death, there is nothing to revoke, and thus s 16 has no work to do. On the face of it, this is a logical argument, but it may not be the end of the matter.

  1. It is implicit in the power that there must be a subsisting registered relationship for the power to be exercised.  That, of course, follows from the words conferring the power: ‘A court may order the revocation of the registration of a registered relationship …’.  It would be a surprising thing, however, if the power of the Court was so limited.  Take as an example the registration of a relationship brought about by a fraudulent or forged application in circumstances where, as here, the consequence is that the surviving registered partner is, by virtue alone of the registration subsisting at the time of the death of the deceased, entitled to the whole of the deceased estate. 

  1. Whether the power under s 16 of the Relationships Act extends to revoking the registration nunc pro tunc (now for then) was not fully argued before me.  The answer might be that ‘fraud unravels everything’[68] and that a separate action, or a claim within an existing proceeding, as here, might have to be brought to declare the registration to be void ab initio.  Nor was there argument before me as to:

(a) the power of the Court arising outside s 16 of the Relationships Act to set aside registration under that Act at law or in equity;

(b)        whether Dominique is ‘an interested person’ within the meaning of that section.  It would be a surprising thing in the context of this case if Dillon’s mother, who would be his next of kin if the registration of the relationship were revoked, was not such an interested person.

[68]See, eg, HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] 1 All ER (Comm) 349, [15] (Lord Bingham); Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2012] VSCA 316, [78].

  1. The arguments for Dominique focused on whether the Certificate of registration was final and binding on the Court and whether the Court in this proceeding can go behind the certificate.  To that end reference was made by Counsel for Dominique to Chao[69] and Kevin and Jennifer.[70]

    [69][2017] FCCA 2449, [18].

    [70](2003) 172 FLR 300, [354].

  1. In Chao, the applicant (Mr Chao) sought judicial review of a decision of the Administrative Appeals Tribunal (Cth) (AAT) affirming a decision of a delegate of the Minister not to grant him a temporary partner visa.  The application was based on Mr Chao allegedly being in a de facto relationship with a Ms Chen in 2013.  Ms Chen informed the Minister’s Department in 2014 that she was no longer in a relationship with him.  The AAT considered that the issue for determination was whether at the time of Mr Chao’s application he was the de facto partner of Ms Chen for the purposes of a section in the Migration Act.  It had regard to evidence of financial relationship and other relevant matters to reach its findings.  Mr Chao relied on a Relationship Certificate, which was said to have been a necessary document to support his visa application.  The legislation under which the Relationship Certificate was issued is not revealed in the decision of the Federal Circuit Court.  The Court found that the existence of the certificate was not sufficient in itself to compel a decision as to the existence of a de facto relationship at the time of application — it needed to be weighed with other evidence.[71] 

    [71]Chao [17].

  1. Counsel for Mollie submitted that Chao is distinguishable because it did not concern whether Mr Chao was in a registered domestic relationship but whether he was in a de facto relationship for the purposes of the Migration Act.  In this respect, Counsel for Mollie refers back to the fact that under the A&P Act where a person was in a registered domestic relationship (within the meaning of the Relationships Act) with the deceased at the time of death, that person is a ‘partner’ of the deceased for the purposes of s 51 of the A&P Act.  That is, what is required for a person to qualify as a ‘partner’ is evidence of the registration of the person and the deceased in a registered domestic relationship, and nothing more.

  1. In Kevin and Jennifer,[72] a judge of the Family Court had declared that the marriage between Kevin and Jennifer solemnised at a ceremony of marriage on 21 August 1999 was a valid marriage.  At the date of the marriage Kevin was a post-operative transsexual person who was registered as a female at birth.  The question was whether Kevin was a man for the purpose of the marriage law of Australia.  Following surgery, Kevin applied to the Registrar of Births, Deaths and Marriages to have his reassigned sex from female to male noted on the Register of Births pursuant to the provisions of certain NSW legislation.  This occurred.[73]  The Court noted that the NSW legislation provided that a certificate was evidence of what it contained but did not state that it was conclusive evidence.[74]  Under the Marriage Act 1961 (Cth), a birth certificate was not conclusive evidence of its facts and so created only a rebuttable presumption as to its accuracy.[75] 

    [72](2003) 172 FLR 300.

    [73]Ibid [165]

    [74]Ibid [351].

    [75]Ibid [352]–[354].

  1. Again, Counsel for Mollie submitted that this case is distinguishable because it did not concern whether a particular relationship was registered or not, but concerned the evidentiary status of a certificate as to gender.

  1. In my view, the decisions in Chao and Kevin and Jennifer are distinguishable from the circumstances of this case for the reasons advanced by Counsel for Mollie. 

  1. It is not to the point, however, that s 22 of the Relationships Act (making the Certificate admissible in legal proceedings as evidence of the ‘entry to which the Certificate relates’  and ‘the facts recorded in the entry’) may only amount to prima facie evidence and be subject to rebuttal by evidence to the contrary.  That is for two reasons.  First, because the Registrar was subpoenaed and produced the record of the registration and the application for registration, there is no doubt about the fact of registration.  Second, because the fact of registration is the only matter relevant to the determination of whether Mollie was Dillon’s partner within the meaning of s 51 of the A&P Act at the time of his death. 

  1. It is clear that Dominique seeks to impugn the validity of the registration of the relationship between Dillon and Mollie.  That is, Dominique seeks to contend that the registration was obtained for an improper purpose or that at the time of the registration Dillon and Mollie were not in a ‘registrable domestic relationship’ within the meaning of the Relationships Act. This involves the determination of whether, under s 16 of the Relationships Act, the Court has power after Dillon has died and the registration has been revoked, to revoke the registration ab initio.  It also involves an application by Dominique to declare the registration void ab initio under s 36 of the Supreme Court Act 1986 (Vic) and perhaps under the Court’s inherent jurisdiction, and for consequential relief. The latter application has not been expressly considered by the parties, but is necessarily encompassed by the tenor of the submissions made on behalf of Dominique attacking the factual underpinning for the registration of the relationship and the validity of it.

  1. If there is a proper basis to revoke the registration of the relationship, and it is revoked ab initio, or if there is a proper basis to declare it to be void ab initio, Mollie wishes to contend, and introduce further evidence to establish, that she and Dillon were in an ‘unregistered domestic relationship’ at the time of his death.  As I have said, Mollie has not addressed the facts relevant to this question at this stage.

  1. The Court will not make an order summarily dismissing a claim where the claim raises a debatable point of law,[76] or where it appears to the Court that there is a real question to be tried. In the absence of full argument, it is not appropriate to determine summarily whether the Court has power to revoke the registration under s 16 of the Relationships Act after the death of one of the persons.  Nor is it appropriate to grant summary judgment where there are disputes of fact which cannot be resolved without a trial that includes cross-examination of the witnesses.

    [76]A v Ipec Aust Ltd [1973] VR 39, 53.

  1. In addition, there is another significant reason for requiring the proceeding to go to trial.  The Court in its probate jurisdiction has an inquisitorial role that requires a greater supervision and control of proceedings than adversarial common law proceedings.  Dominique contends that in all the circumstances it is inappropriate, in the exercise of the Court’s discretion, to make a grant of representation to Mollie.  The contentions by Dominique that the registration of the relationship was obtained for an improper purpose (namely for Dillon to obtain a partner visa under the Migration Act) and that Dillon and Mollie were not in a registrable domestic relationship at the time of registration, involve difficult factual issues that should not be determined summarily.  This is a case where the residual discretion in the Court as to whom it will grant administration may be enlivened.  That discretion is a part of the inherent power of the Court to look to the due and proper administration of the estate of the deceased and the interests of those beneficially entitled to it.

  1. These matters may make it appropriate for the Court to make orders that are unusual for a probate proceeding.  The issues between the parties are not clearly defined by the affidavits and submissions of the parties.  A matter the Court will raise with the parties is whether pursuant to r 4.07 of the Rules the proceeding should continue as if commenced by writ, or whether pleadings should in any event be ordered, with mutual discovery of documents to follow.

Conclusion

  1. This is a case where there are questions to be tried and matters to be investigated by the Court before it can determine to whom a grant of representation should be made.  Further, it is not in the interests of justice to summarily dispose of the caveat and the disputes are of such a nature that only a full hearing on the merits is appropriate.

  1. It is therefore appropriate to dismiss the summons filed on 3 October 2018 by which Mollie applied for summary judgment.  I will hear the parties as to the costs and further orders.

Schedule

Grounds of Objection

To the Registrar of Probates:

The following grounds of objection are raised in relation to the application for a grant of representation (No. S PRB 2018 2943) by Mollie-Rose Scapetis, herein called “the Applicant” in the matter of the Estate of Charles Dillon Bertine.

1.          The Applicant for the grant of representation does not have capacity or stand in the relationship in which the Applicant seeks administration.

2.          The Caveator and the father of the deceased, Donald Davis Bertine Jr, have a better right as the deceased’s next of kin.

3.          At the date of the registration of the relationship between the Applicant and the deceased on 21st May 2014, the Applicant and the deceased were not living together in a domestic relationship.

4.          The Applicant provided misleading information to Births, Deaths and Marriages on the Application to register a domestic relationship on 21st May 2014 and said she lived at the Caveator’s address at 52 Abbott Street, Sandringham.  The Applicant never lived with the deceased at 52 Abbott Street, Sandringham.  She stayed for a week when the Caveator was away for holidays in August 2017 at the caveator’s home at 41A Somer Street, Bentleigh.

5. The Application to register the relationship was not entered into for the purposes of registering a registrable domestic relationship under section 6 of the Relationships Act 2008. The purpose was actually to enable the deceased to apply for a partner’s VISA. The deceased’s student VISA was due to expire in November 2014.

6.          In or about February 2014, the Caveator received a letter addressed to the Applicant at 52 Abbott Street, Sandringham and asked the deceased why.  The deceased acknowledged that he had used 52 Abbott Street, Sandringham as the Applicant’s address despite the fact that she had not lived there.

7.          The Relationship Certificate was granted on 22nd July 2014.

8.          The Caveator was requested to sign a Statutory Declaration on 23rd August 2014 in support of the VISA application.  The Caveator did not sign a Statutory Declaration as provided by the Applicant which states that the Applicant lived at 52 Abbott Street, Sandringham and as to the relationship between the Applicant and the deceased.  The Caveator believes that the Statutory Declaration was changed after completion by replacing the first page with a page that the Caveator did not declare.  The Caveator did not declare and sign a Statutory Declaration that stated that the Applicant and the deceased lived together at 52 Abbott Street, Sandringham.

9.          On 2nd  September 2015 a Temporary VISA was granted to the deceased.

10. The Applicant was not living as a couple with the deceased on a genuine domestic basis nor provided personal or financial commitment and support of a domestic nature for the material benefit of the other as defined in section 5 of the Relationships Act 2008 at the time of registration of the relationship. The Application to register the relationship was not entered into for the purposes of registering a registrable domestic relationship under section 6 of the Relationships Act 2008.  The applicant was not living with the deceased at the time of death as a couple on a genuine domestic basis and had not lived with the deceased in that manner continuously for a period of at least 2 years immediately before the person’s death.  The applicant does not have the capacity or stand in the relation in which she seeks administration.

11.       During 2015 the relation between the Applicant and the deceased was intermittent at best and they never lived together as a couple in a genuine domestic relationship.

12.       The deceased travelled to the United States in February 2015 and upon returning he lived in a shared house in Mordialloc with his friend Joel Hughes.  The property at 52 Abbott Street, Sandringham was sold in April 2015.  The Applicant continued to live with her mother throughout.  The Applicant and the deceased rented an apartment in St Kilda in December 2015 but moved in around February 2016 only.

13.       The deceased and the Applicant were not living together at the date of death on 13th October 2017 nor had they been for some weeks.

14.       The Caveator did not provide the information to the funeral director which states that the Applicant was in a domestic relationship with the deceased.  The information was provided by the Caveator’s partner.

15.       The Immigration Department contacted the deceased in September 2017 requesting further information for the VISA application as the VISA was due to expire in October 2017. The Applicant and the deceased did not supply the information prior to his death on 13th October 2017.

16.       As the Applicant is not the domestic partner of the deceased, the Caveator and the father of the deceased, Donald Davis Bertine Jr, as next of kin are the appropriate persons to apply for Letters of Administration in the Estate of the deceased.


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