Re Gdanski; McLaren v Gdanski

Case [2022] VSC 565


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2021 03566

IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)

- and –

IN THE MATTER of the Estate of LAWRENCE MAXWELL GDANSKI, deceased

BETWEEN:

LEANNE TRACEY MCLAREN Plaintiff
v 
JEFFREY GDANSKI (In his capacity as executor and trustee of the Estate of LAWRENCE MAXWELL GDANSKI, deceased) Defendant

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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

  1. 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.

  1. 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.

  1. 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…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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