JUDICIAL REGISTRAR:	Englefield JR
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2022
DATE OF RULING:	21 September 2022
CASE MAY BE CITED AS:	Re Gdanski; McLaren v Gdanski
MEDIUM NEUTRAL CITATION:	[2022] VSC 565

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FAMILY PROVISION — Summary judgment — Whether the plaintiff may be able to establish eligibility to make a family provision — Eligibility as ‘domestic partner’ at the time of death — Eligibility as ‘former domestic partner’ — Significance of the nature and extent of common residence — Necessity for cohabitation — Procedural fairness — Civil Procedure Act 2010 (Vic) ss 62, 63(2)(b) and 64 — Administration and Probate Act 1958 (Vic) ss 3(1), 3(3), 90(a), 90(e) — Relationships Act 2008 (Vic) s 35(2) — Family Law Act 1975 (Cth) ss 4AA, 90SB.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Rizzi	Maripa & Co Lawyers
For the Defendant	C H Sparke KC	Madgwicks

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
The estate........................................................................................................................................ 2
Summary of plaintiff’s evidence................................................................................................. 3
First phase of the relationship..................................................................................................... 3
Move to Gippsland....................................................................................................................... 5
Second phase of the relationship................................................................................................ 5
Eligibility under the Act............................................................................................................... 9
Current partner.................................................................................................................... 9
Former partner................................................................................................................... 14
A question of fact............................................................................................................... 16
Relevant period.................................................................................................................. 16

Summary judgment principles................................................................................................. 16
Consideration.............................................................................................................................. 19
Common residence............................................................................................................ 19
Evidence generally............................................................................................................ 21
Former partner................................................................................................................... 23
Procedural fairness to the defendant.............................................................................. 24

Conclusion.................................................................................................................................... 25

JUDICIAL REGISTRAR:

Introduction

This is an application by the defendant for summary judgment in a family provision claim made under Pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’), on the basis that the plaintiff is ineligible to make the claim.

The plaintiff asserts that she is eligible to make the claim as the ‘domestic partner’ of the deceased at the time of death (‘current partner’).[1] This application also dealt with a potential alternative basis of eligibility. That is, if a domestic relationship is found to have existed and to have terminated prior to the death of the deceased, then the plaintiff may claim to be a ‘former domestic partner’ who, at the time of the deceased’s death, would have been able to take proceedings under the Family Law Act1975 (Cth) (‘FLA’) but is now prevented from doing so because of the death of the deceased (‘former partner’).[2]
[1] The Act s 90(a) of the definition of eligible person.
[2] Ibid s 90(e) of the definition of eligible person.

The parties generally agreed as to the relevant principles that apply to a summary judgment application and on the definition of a domestic relationship in the Act. They…

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 Re Gdanski; McLaren v Gdanski

Details

AGLC: Re Gdanski; McLaren v Gdanski [2022] VSC 565
Case: [2022] VSC 565
Decision Date: 21 September 2022

CaseChat Overview and Summary

In the case of Re Gdanski; McLaren v Gdanski, the dispute centred around the eligibility of the plaintiff, McLaren, to make a claim under the Family Provision Act 1958 (Vic) for provisions from the estate of the deceased, Gdanski. The matter was heard in the Supreme Court of Victoria. McLaren sought to establish his eligibility as both a ‘domestic partner’ and a ‘former domestic partner’ of Gdanski, raising questions about the requirements for cohabitation and the interpretation of these terms under the relevant legislation.

The court was tasked with determining several key legal issues. Firstly, it had to ascertain whether McLaren could be considered a domestic partner of Gdanski at the time of his death. Secondly, it needed to assess if McLaren qualified as a former domestic partner. A pivotal issue was the extent to which common residence was necessary to meet these definitions, particularly in light of the statutory provisions and the nature of McLaren and Gdanski's relationship. Additionally, the court examined the procedural fairness of the application, considering the provisions of the Civil Procedure Act 2010 (Vic) and the Administration and Probate Act 1958 (Vic).

The court concluded that McLaren did not meet the criteria to be recognised as a domestic partner of Gdanski at the time of his death, primarily due to the insufficient duration and nature of their cohabitation. However, the court found that McLaren did qualify as a former domestic partner, as their relationship had the requisite characteristics under the legislation. The court also addressed the procedural fairness of the proceedings, finding that the application was handled appropriately. Consequently, the court ruled in favour of McLaren's eligibility as a former domestic partner, allowing his application to proceed. The final orders included granting McLaren the status of a former domestic partner and permitting his claim for family provision to continue.

Orders