Re Ho; Liang v Broadfoot
[2020] VSC 168
•9 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2018 02702
| IN THE MATTER of Part IV of the Administration and Probate Act 1958 | |
| - and - | |
| IN THE MATTER of the Will and Estate of KING LAM HO deceased | |
| BETWEEN: | |
| HAOMING LIANG | Plaintiff |
| v | |
| CONNIE SHUK BROADFOOT (who is sued as the executrix of the Will of King Lam Ho, deceased) | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18, 19, 20 November 2019 |
DATE OF JUDGMENT: | 9 April 2020 |
CASE MAY BE CITED AS: | Re Ho; Liang v Broadfoot |
MEDIUM NEUTRAL CITATION: | [2020] VSC 168 |
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FAMILY PROVISION – Where plaintiff seeks provision from the estate of the deceased – Preliminary question as to eligibility of the plaintiff to bring claim for provision from the estate – Where plaintiff claims to be the domestic partner of the deceased, alternatively, the former domestic partner of the deceased at time of his death – Administration and Probate Act 1958 (Vic), s 90A; Relationships Act 2008 (Vic), s 35(2) – Dow v Hoskins [2003] VSC 206; White v Hume [2013] VSC 95; Re Estate of Sigg (dec’d) [2009] VSC 47; Forsyth v Sinclair [2010] VSCA 147; Marrando v Rizzo [2012] NSWSC 739; Chan v Mazurkiewicz [2015] WASC 432.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Chen | James Au & Associates |
| For the Defendant | Mr F Lim Francis Lim Barristers and Solicitors |
HER HONOUR:
King Lam Ho (‘the deceased’) died on 9 June 2018, aged 58 years. In the decade before his death the deceased worked as a chef at a number of restaurants in Melbourne. At the time of his death, the deceased’s estate was estimated to have a value of $1,268,956.
Connie Broadfoot (‘the defendant’) is the deceased’s older sister. She is the executor and sole beneficiary of the deceased’s last will, probate of which was granted on 22 August 2018. The defendant has a son (‘Billy’) and niece (‘Tiffany’) who lived with her at relevant times in the years before the deceased’s death.
Haoming Liang (‘the plaintiff’) is 57 years old. She has a daughter (‘Leanne’) from a previous relationship. The plaintiff seeks provision from the deceased’s estate pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’).
A preliminary question arises as to the plaintiff’s eligibility to bring her claim for provision. She asserts that she is an eligible person for the purposes of s 90A of the Act on the basis that she was the domestic partner, alternatively, the former domestic partner, of the deceased at the time of his death. The defendant disputes this, contending that the plaintiff and deceased were co-tenants, or that if there was a domestic partnership between the two, it ended in 2014.
The Court has determined that on the preliminary issue the plaintiff’s case should succeed.
Applicable principles
An applicant under Part IV of the Act must establish that she or he is an ‘eligible person’. In accordance with the definition provided in s 90 of the Act, ‘eligible person’ means:
(a)a person who was the spouse or domestic partner of the deceased at the time of the deceased's death;
...
(e) a former spouse or former domestic partner of the deceased if the person, at the time of the deceased's death—
(i)would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and
(ii)has either—
(A) not taken those proceedings; or
(B) commenced but not finalised those proceedings; and
(iii)is now prevented from taking or finalising those proceedings because of the death of the deceased;
...
A ‘domestic partner’ of a deceased person means a ‘registered domestic partner’ or an ‘unregistered domestic partner’ of that person. The meaning of ‘unregistered domestic partner’ is stated in s 3(1) as a person who, although not married to the deceased person:
(a)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 either—
(i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or
(ii) 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.
In determining whether persons were unregistered domestic partners, all of the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in s 35(2) of the Relationships Act 2008:
(a)the degree of mutual commitment to a shared life;
(b)the duration of the relationship;
(c)the nature and extent of common residence;
(d)whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f)the ownership, use and acquisition of property;
(g)the care and support of children;
(h)the reputation and public aspects of the relationship.
Although all of the matters listed in s 35(2) should be considered, no one factor is determinative. A domestic relationship may exist ‘when the couple have separate residences and are not financially dependent on each other’.[1] The Court is to ‘stand back and look at the relationship as a whole’.[2] Identifying whether the applicant was ‘living with the deceased’ should not be construed ‘on narrow, formal, pedantic or merely geographical criteria but should be considered taking into account the human reality of the personal, emotional and cultural complex’.[3] In Re Estate of Sigg deceased, Pagone J stated:
[I]t would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities.[4]
[1]Forsyth v Sinclair [2010] VSCA 147, [88] (Neave JA, Redlich and Habersberger JJA agreeing).
[2]White v Hume [2013] VSC 95, [50] (Daly AsJ).
[3]Dow v Hoskins [2003] VSC 206, [32] (Cummins J).
[4]Re Estate of Sigg (dec’d) [2009] VSC 47, [7].
Such an approach reflects the reality that, as with married couples, people who are domestic partners live in a diversity of arrangements.[5] Each ‘element of a relationship draws its colour and significance from the other elements’.[6]
[5]Ibid [7]; see also Chan v Mazurkiewicz [2015] WASC 432, [10] (La Miere J).
[6]Marrando v Rizzo [2012] NSWSC 739, [49] (Hallen AsJ), quoting Lynum v Director General of Social Security (1983) 52 ALR 128, 131 (Fitzgerald J).
Section 35(3) specifies that a person is not a domestic partner of another person only because they are co-tenants.
As set out in s 90 of the Act, a former domestic partner may apply for further provision if she or he satisfies three requirements: first, that she or he would have been able to take proceedings under the Family Law Act 1975 (‘FLA’); secondly, that those proceedings have not been taken or have been commenced but not finalised; and finally, that she or he is prevented from taking or finalising the proceedings because of the death of the deceased.[7]
[7]See Russell v Rindfleish [2002] NSWSC 910, [23] (Macready AJ); Riboskic v Stanojevic [2019] VCC 1764, [59] (Judge Misso).
Section 90SM of the FLA provides for the alteration of property interests after the breakdown of a de facto relationship. Jurisdiction to make such an order is established if: the period or total period of the de facto relationship is at least two years; or there is a child of the de facto relationship; or the applicant made substantial contributions to the property or welfare of the family, and a failure to make the order would result in injustice; or the relationship was registered;[8] the Court is satisfied that the parties were ordinarily resident in a participating jurisdiction;[9] and, unless leave is granted, an application under s 90SM was made within two years of the end of the de facto relationship or with the consent of both parties.[10]
[8]FLA s 90SB.
[9]FLA s 90SK(1).
[10]FLA s 44(5).
The FLA defines de facto relationship as a relationship where persons are not legally married, they are not related by family, and having regard to all of the circumstances of their relationship, they have a relationship ‘as a couple living together on a genuine domestic basis’.[11] A list of relevant circumstances is provided in s 4AA(2), which, save for consideration of registration of the relationship under State or Territory laws, is identical to that in s 32(2) of the Relationships Act 2008.
[11]FLA s 4AA.
The plaintiff bears the onus to establish that she was either a ‘domestic partner’ or ‘former domestic partner’ of the deceased at the time of his death.[12] Where it is asserted that the plaintiff and deceased separated, authority from New South Wales suggests that it is the plaintiff who must establish the ongoing existence of the relationship, rather than the defendant proving the separation.[13]
[12]See Jasarevic v Nesovanovic [2017] VSC 267, [10], [16] (Zammit J).
[13]See Marrando v Rizzo (n 6) [129].
Evidence
A total of seventeen affidavits were filed in the proceeding, and nine witnesses were cross-examined. As will become apparent from the following summary, a significant proportion of the evidence is in dispute.
Commencement of the relationship
The plaintiff and the deceased began dating in 2006, having met when working at the same restaurant. At that time the deceased was living with the defendant in a property that the defendant owned at 119 Winfield Road, Balwyn North (‘Balwyn North’). The plaintiff was living with Leanne in a property that she owned at Unit 8/40-48 Tram Road, Doncaster (‘Tram Road’). According to Leanne, she met the deceased that year when he was introduced to her as the plaintiff’s ‘boyfriend’, and the plaintiff told her to call him ‘uncle’.
The plaintiff asserts that in 2006 she became pregnant with the deceased’s baby and, after coming to a mutual agreement with the deceased, on 29 June 2006 she underwent an abortion. A medical report is exhibited to the plaintiff’s affidavit in this regard. She states further that after the abortion, she and the deceased lived very happily. She referred to him as her husband and he referred to her as his wife in front of friends and colleagues.
The defendant disputes that the deceased would have agreed to the abortion, and asserts that in 2006 the deceased slept at Balwyn North almost every day. She further states that although the plaintiff came to Balwyn North to play mahjong, she never heard the deceased refer to the plaintiff as his wife.
According to the plaintiff, during the period between 2007 and 2013, the deceased would stay at Tram Road for three to four nights each week. He also left a set of usual clothing at her home and they had a sexual relationship. The plaintiff would cook dinner for the deceased after he finished work. Additionally, two to three nights each week the plaintiff would stay at the deceased’s residence. She would help with the ironing, wash the deceased’s clothes and the two would garden together. When cross-examined, the plaintiff disagreed with the assertion that the deceased slept at Balwyn North most of the time during this period.
Leanne states that in 2007 the deceased sometimes slept over at Tram Road and at times he would drive her to school in the morning.
The plaintiff asserts that in 2009 the deceased was away in Hong Kong for ten days and during that period she cared for the deceased’s dog, cleaned his house and maintained the garden. The following year the plaintiff assisted the deceased to renovate the kitchen at Balwyn North. The defendant denies that the plaintiff helped look after Balwyn North in 2009 and that any renovations were done.
Chun Fai (‘Ray’) Wong was a long-term friend of the deceased, the two having met in 1998. In 2008 or 2009 he worked together with the plaintiff. At that time, the plaintiff told him that she and the deceased were ‘together’. Since then, the three would often have dinner, drinks and supper together. If the plaintiff did not attend, and collected the deceased after he had been drinking, the deceased would address her as his wife in Cantonese. Ray Wong describes the deceased’s attitude and personality as ‘very stern’ and, when it came to work, he was said to be ‘a perfectionist’. Additionally, the deceased did not ‘often mention much about his personal life’.
Ho Kong (‘David’) Wong was also a long-term friend of the deceased, the two having met in 2000. He similarly recalls occasions between 2009 and 2017 when he, the deceased and Ray Wong would go out for food and drinks, which the plaintiff attended at times. If the plaintiff did not attend and later picked the deceased up, the deceased would call her ‘my wife’ in front of his friends. He further deposes that he heard the deceased refer to Leanne as his ‘stepdaughter’.
On 15 November 2010, the deceased nominated the defendant and Billy as the beneficiaries of his superannuation fund.
Leanne states that in 2011, as she had commenced university, the plaintiff stayed with the deceased ‘more frequently’ at Balwyn North, specifically two to four nights each week. The same year, the deceased offered to help Leanne practise her driving.
The defendant states that she lived in Hong Kong between early 2010 and June 2011. During that time, the deceased lived at Balwyn North. When the defendant returned in 2011, she and the deceased lived together and the deceased always slept at Balwyn North. According to her, the plaintiff and defendant only began dating in March or April 2013.
The defendant purchased a property at Lynwood Parade, Templestowe Lower (‘Templestowe Lower’) in 2012. In or around September 2013, the defendant sold Balwyn North.
Purchase of Mont Close
In 2013, the deceased was caught drink driving which required him to attend court and have an alcohol interlock installed on his car.
The plaintiff asserts that while the deceased’s licence was suspended she would drive him to and from work. Leanne states that at the request of the deceased she assisted him with scheduling a related drink-driving course and that when she attended the associated meetings with the deceased he introduced her as his daughter.
The defendant asserts that she found a solicitor for the deceased to assist with the drink driving and later interlock matters, and that she paid the deceased’s legal fees. The plaintiff denies that lawyers were involved.
According to the plaintiff, after initially looking for a rental property, the deceased suggested that he and the plaintiff purchase a property together and live together. Leanne deposes that around September 2013, together with the plaintiff and deceased, she looked for properties and attended open days.
In October 2013, the deceased and the plaintiff applied for a bank loan. In the associated Westpac loan application form (‘loan application’), the ‘marital status’ section appears blank for both the plaintiff and the deceased, and the deceased’s address is listed as Tram Road. Templestowe Lower is identified as an asset that was rented. In a typed summary of the application, the deceased’s marital status is identified as ‘married’, while the plaintiff’s is identified as ‘single’. In the subsequent loan offer from Westpac Bank dated 13 November 2013, the predominant purpose of the loan is identified as ‘rental/resale’. The plaintiff admits that she and the deceased applied for the loan as an investment property, as it was believed that that would increase their borrowing capacity.
The defendant states that, between about June and December 2013, she would sometimes have to collect the deceased from a bus stop and drive him to Templestowe Lower after he had finished work in the city.
Yan Hong Chen deposes that he was a close friend of the deceased, whom he treated as an older brother. The two had known each other for 13 years and both worked as chefs. He states that quite often he would drink and chat with the deceased at Templestowe Lower. On rare occasions the plaintiff was also there playing mahjong, but he never heard the deceased and the plaintiff refer to each other as husband and wife.
Minli Zhu states that from mid-2013 she visited Templestowe Lower to play mahjong with the defendant about four nights each month. She recalls that she had dinner at the defendant’s house with the deceased on a fairly regular basis, which the plaintiff did not attend. On occasions the defendant had to stop playing mahjong while she went to pick up the deceased after work. During cross-examination she could not recall the specific time periods that this occurred.
On 19 October 2013, the plaintiff and the deceased purchased a property at 10 Mont Close, Doncaster (‘Mont Close’) for $840,000. The parties agree that the plaintiff made payments totalling $254,000 toward the deposit and settlement of the purchase. A joint home loan of $640,000 from Westpac provided the balance of funds at settlement. Leanne, who states that she was responsible for communicating with the bank and conveyancer, recalls that the plaintiff and deceased told her that the plaintiff had contributed $59,000 on 30 October 2013 and $141,000 on 26 November 2013.
At settlement, on 4 December 2013, the plaintiff and deceased were registered as joint tenants of Mont Close. The deceased, the plaintiff and Leanne then moved into the property.[14]
[14]The plaintiff deposes that shortly prior to this she assisted the deceased pack his belongings at Balwyn North. This is denied by the defendant as the sale of Balwyn North settled on 20 December 2013, and the deceased had already moved his belongings to Templestowe Lower.
The plaintiff asserts that shortly thereafter the deceased bought her and Leanne a diamond ring each, which he said represented his commitment to their family. An undated ring certificate is exhibited to the plaintiff’s affidavit in this regard.
According to the plaintiff, the deceased did not provide her with financial assistance during his lifetime. Their finances were separate prior to the purchase of Mont Close, and afterwards. They paid off the mortgage together.
The plaintiff states that when she and the deceased had days off work, they would visit Bunnings together, get haircuts together and eat Pho for lunch.
Leanne states that the deceased was a ‘very traditional man’, and that she and the plaintiff would do the laundry, ironing, vacuuming and cleaning at Mont Close, and usually purchased the groceries. She describes the deceased as ‘not a very social individual’, as he spent his days off mostly at home and he loved working in the garden. Leanne deposes that both the deceased and plaintiff had busy work schedules.
Mr Chen states that the deceased told him that he had purchased a house, but not where the house was located. Mr Chen also says that he never visited Mont Close. This is denied by the plaintiff, who asserts that Mr Chen came to Mont Close on two occasions to sell cigarettes. Mr Chen agreed that he sold the deceased cigarettes, but denied that he visited Mont Close.
Mr Chen also deposes that his family would have dinner with the deceased, the defendant and Billy on many occasions, which the plaintiff did not attend. He states that he ‘always met [the deceased] at [the defendant’s] house’. He further states that he always thought that the deceased and plaintiff were ‘just good friends’. When it was put to Mr Chen during cross-examination that he had yum cha with the deceased, the plaintiff and the defendant in February 2017 he stated that he ‘did not remember’. He then conceded that he had met the plaintiff and the deceased together on social occasions, but not in dinner settings, and that he became aware that they were ‘more than good friends’ after they purchased Mont Close.
Hassen Evans first met the deceased in 2014 as neighbours. He lives in a property opposite Mont Close. He describes the deceased as a friendly man and states that in conversations he had with the plaintiff and the deceased they referred to each other as husband and wife.
Siu Wai Fiona Ip is a conveyancer who works with Clifford Lawyers. She first met the deceased and his siblings in approximately 2005. Ms Ip states that she attended the defendant’s house on many occasions to have dinner, and that the deceased was always there. She first met the plaintiff at a dinner in August or September 2014. At that stage she became aware that the plaintiff and the deceased were living together. She did not hear the plaintiff or the deceased refer to each other as husband and wife. Ms Ip further deposes that she only knew that the plaintiff and the deceased were good friends. When pressed on that point during cross-examination, Ms Ip replied ‘boyfriend and girlfriends’, before being taken to her affidavit and clarifying that she meant ‘good friends’.
According to the defendant, in October 2014 the deceased brought back some of his clothing and personal belongings to Templestowe Lower. He also started to sleep at Templestowe Lower, and would return once in a while to Mont Close to take care of the garden and plants and collect letters. The defendant also deposes that she visited Mont Close in October 2014 to give the deceased a crystal rock, which he placed in his room on the ground floor. At that time she saw that the deceased’s clothes were kept in the room and there was a single sofa bed with a bed sheet and a pillow.
In October 2014, the plaintiff and Leanne travelled to China.
On 25 October 2014, the deceased completed a binding death benefit nomination for his superannuation fund, nominating his estate as the beneficiary.
According to the defendant, in November 2014 the deceased told her that he had ‘split up with’ the plaintiff, and asked her to go with him to lawyers to make his will. She also states that, when the deceased worked in or around Box Hill between November 2014 and July 2016, several times a week she would have to collect him from work when he had consumed too much alcohol and take him to Templestowe Lower.
Execution of the will and change to Mont Close ownership
The plaintiff deposes that her relationship with the deceased was very good in November 2014. They had just finished renovating Mont Close and hosted a house-warming party. Photographs of the party, later described by the plaintiff as a ‘matrimonial housewarming party’, are exhibited to the plaintiff’s affidavit.
The defendant asserts that, on 6 November 2014, she attended Clifford Lawyers with the deceased. While waiting to see a solicitor the deceased is said to have stated to Ms Ip that he had ‘split up’ with the plaintiff and wanted to make a will. Ms Ip gave similar evidence.
A will drafting file was opened for the deceased at Clifford Lawyers on 7 November 2014.
On or about 1 December 2014, Ms Ip prepared a transfer of land for the deceased and the plaintiff to change their manner of holding Mont Close. It identifies the address of the deceased, as transferee, as Mont Close.
Ray Wong recalls a house-warming party in December 2014 that he attended at Mont Close. It was held after ‘renovations’ had been completed and at the time the deceased showed Ray around Mont Close. According to Ray, the gathering was also to celebrate a mutual friend’s birthday, and for the deceased to formally announce the plaintiff as ’his missus’. Photos of the party are exhibited displaying the date 7 July 2016. The date is said to reflect when the photos were sent to Ray’s friend’s mobile phone rather than the date of the gathering.
The same photos were shown to Mr Chen during cross-examination. He confirmed that the plaintiff and deceased were in the photographs, and that they were taken in December 2014.
In early 2015, the deceased is said to have phoned Ms Ip and told her that the plaintiff was not happy signing the transfer documents prepared by Clifford Lawyers, and instead would sign documents prepared by her own lawyer or conveyancer. He repeated this to Ms Ip when he attended the office of Clifford Lawyers in early March 2015.
The deceased executed his last will on 30 March 2015. Ms Ip deposes that after signing his will, the deceased told her that he was relieved that he could give his half share in Mont Close to the defendant.
The plaintiff deposes that she and the deceased had a significant argument in April 2015 regarding the purchase of a car. After the argument the deceased left for three days and upon returning said that he had stayed at the defendant’s house. The plaintiff also asserts that the deceased told her that the defendant had taken him to a lawyer, and he had signed a ‘tenants in common’ agreement. He suggested that she should also sign to ensure that she or Leanne would have no less than a 50 per cent interest in Mont Close.
The defendant asserts that the deceased and the plaintiff had already ‘split-up’ by April 2015 and were no longer living in the same house. As such, she denies that the deceased came to stay with her for only three days.
On 1 May 2015, the deceased and the plaintiff were registered as tenants-in-common in equal shares in Mont Close. The associated transfer identifies the consideration as ‘natural love and affection’.
In order to remove the interlock from the deceased’s car, it was necessary to obtain an Interlock Compliance Court Report. That report, which was prepared in August 2015, provides that the deceased was residing with ‘his wife and children in their family home in Doncaster’. It also identifies the address of the deceased as Mont Close. Leanne assisted the deceased with the process of obtaining the report.
Leanne states that, on 3 September 2015, at the defendant’s invitation, she, the plaintiff and the deceased had dinner at Templestowe Lower with the defendant.
Mr Evans noticed that from October 2015 to July 2017 the deceased stopped driving a Toyota Camry, and instead drove a Nissan van.[15]
[15]The defendant states that she purchased a Nissan 7-seater in October 2015.
According to Mr Chen, on 29 October 2015, which was the deceased’s birthday, he visited the deceased at the defendant’s house. The deceased is said to have appeared very unhappy, disclosing that he had made a will, that he was very unhappy with the plaintiff and that they had ‘split up’. Mr Chen also states that the deceased said that since early 2015 ‘he usually slept at [the defendant’s] house and hardly went back to his house’.
Leanne recalls that, on 4 February 2016, on her return from overseas a celebratory dinner was held at Templestowe Lower and the deceased cooked her favourite meal.
In a WeChat message to the deceased dated 26 March 2016 Leanne stated:
Hey uncle, [the defendant] came today and left some congee for you to have for supper. She also left a key, it’s your car key. I left the car key in your study room. Just letting you know.
When cross-examined with reference to this message, the defendant replied:
Yeah, he almost – some time ... It depends on – sometime, he might spend a night at my place every 10 days or –maybe for 10 days. And then he would return home for a day or two.
Leanne also stated that as a chef the deceased would frequently injure himself, and that the plaintiff would massage him to relieve his pain. If he ran out of Voltaren cream he would then ask Leanne to get more from the pharmacist.
The plaintiff asserts that during a period in which the deceased was unemployed she paid for the entire mortgage, insurance and bills. She states that on 14 April 2016 she attended a branch of her bank at Box Hill and withdrew $50,000 from her personal account and deposited those funds into the joint home loan account.
A WeChat message from Leanne to the deceased dated 30 May 2016 refers to the defendant leaving medication for the deceased at Mont Close.
David Wong deposes that he visited the plaintiff and the deceased at Mont Close with his wife in May 2016, before having dinner at the defendant’s house. He deposes that the plaintiff and the deceased looked to ‘be a very loving couple’, and both prepared snacks and tea.
In August 2016, the defendant visited Hong Kong for two weeks. The plaintiff states that during this period she and the deceased moved into Templestowe Lower to look after Billy and Tiffany. A receipt for takeaway pizza is exhibited. This is denied by the defendant.
According to the defendant, from July 2016 to December 2017, she paid $1,000 per month to maintain the deceased’s life insurance policy as he was unable to pay.
The deceased commenced work at Elate Kitchen in August 2016. The defendant states that if he drove her van to work and consumed too much alcohol, he would sometimes sleep in the van in the car park. At other times if he did not have the van he would call the defendant to collect him.
The plaintiff and Leanne attended an end of year celebration dinner at Elate Kitchen on 29 December 2016. Although they left prior to the deceased, according to Leanne the plaintiff returned to Elate Kitchen later to pick up the deceased and drive him back to Mont Close.
Ray Wong states that he had dinner with the deceased in December 2016 and October 2017, and at those times when the plaintiff picked the deceased up he referred to her as his wife. He also recalls that after the dinner in December 2016 the deceased showed him his new salary from Elate Kitchen, and that after the deceased had counted the money he handed it all over to the plaintiff.
In February 2017, the defendant’s family, the deceased, the plaintiff and Leanne holidayed for three days together. The defendant states that the deceased hardly spent any time with the plaintiff during the three days, however the plaintiff asserts that she was sleeping with the deceased in the Nissan van during the trip. Leanne recalls the same sleeping arrangement as identified by the plaintiff. The plaintiff relies on a number of photos of her and the deceased taken during the trip. One of those photos shows the plaintiff kissing the deceased.
The plaintiff states that she and the deceased had a second significant argument on 9 July 2017, associated with the deceased drink driving and having a car accident. Photographs of a damaged car are exhibited to the plaintiff’s affidavit. The defendant denies the plaintiff’s version of events, asserting that she was driving rather than the deceased. The defendant’s sister, Suk King Ho, similarly recalls that the defendant was driving, although she was not present at the time of the accident.
Leanne states that, a few days before 22 September 2017, one night after returning from work the deceased gave her $2,000 ahead of an overseas trip that she was taking. In a WeChat conversation the day that Leanne departed she stated: ‘Uncle, I am about to board. Yes, I have arrived safely at the airport. When working, take care of yourself’. The deceased replied: ‘ok, ok. Got you daughter. You be careful, if there is anything give me a call. Tell mummy. Have a safe trip’. The defendant asserts that the deceased was not good at remembering names, and usually called a male person ‘son’ in Chinese and a female person ‘daughter’. In this regard she exhibits to her affidavit, among other things, WeChat messages with a female staff member and a female customer who the deceased addressed as ‘daughter’.
Ray Wong recalls having supper with the deceased in or around October 2017, and includes that occasion as a time when the deceased referred to the plaintiff as his wife. David Wong gives similar evidence.
According to the plaintiff, the last sexual activity between her and the deceased was in late October 2017.
The plaintiff deposes that the deceased worked at Elate Kitchen until October 2017. However, she later refers to the deceased continuing to work there in November and December of that year.
On 31 October 2017, the defendant organised a birthday celebration for the deceased. The plaintiff asserts that she assisted with the groceries and birthday cake. Photographs that Leanne took of the celebration are exhibited to the plaintiff’s affidavit. Leanne similarly recalls the occasion, and that the plaintiff baked one cake for the deceased and purchased another. The defendant states that the plaintiff only attended because she was the defendant’s friend.
According to the plaintiff, the deceased gave her a ring in 2017 that he said was his mother’s ring. This is denied by the defendant, who asserts that she never saw her mother wear the exhibited ring.
Cancer diagnosis and period of illness
In November or December 2017 the deceased was diagnosed with cancer. The plaintiff says that after receiving his diagnoses the deceased did not contribute any payments to the joint loan or bills.
On 20 November 2017, the defendant purchased Elate Kitchen, this was said to be so that she could work with the deceased, and to enable him to repay his home loan.
Much contention between the parties surrounds the care and support provided to the deceased, and his living arrangements, from December 2017. According to the plaintiff, she visited the deceased in hospital in December 2017 and he stayed at Mont Close on 15 December 2017 after surgery. She also gave evidence that:
(a) she took the deceased to hospital in January 2018, and visited during his inpatient admission. Off street parking receipts are exhibited to her affidavit in this regard;
(b) in January 2018 the deceased wrote a loan note acknowledging her lump sum contribution of $250,000 to Mont Close, and $15,000 that Leanne had lent him. A photo of a small, handwritten note is exhibited to the plaintiff’s affidavit. The funds from Leanne were deposited into the joint loan account;
(c) for reasons of convenience the deceased would sometimes stay at Templestowe Lower. Every Tuesday from 17 April 2018, the plaintiff and the deceased would have supper at the defendant’s house after they both finished work, and would stay the night;
(d) for about 80 per cent of the nights between 11 January 2018 and 17 April 2018, and for most nights between 24 April 2018 and the date of his death, the deceased did not sleep at Mont Close. Regarding the latter period, the plaintiff asserts that she would stay at Templestowe Lower for an average of three nights each week. At these times, she would sleep in the same room as the deceased but in separate beds.
(e) she agreed with the deceased and defendant that, because her English was poor and in order for the deceased to stop worrying about the work at Elate Kitchen, the defendant would take the deceased to his chemotherapy appointments and she would provide assistance at Elate Kitchen;[16]
(f) in mid-January the deceased told her that he wanted to apply for a Centrelink pension, and that the defendant was assisting him in this regard. In February, the plaintiff and Leanne assisted the deceased fill in a different Centrelink form directed toward his assets. That form shows his interest in Mont Close as 40 per cent rather than 50 per cent, purportedly so that he could qualify for the relevant pension; and
(g) she visited the deceased in hospital the night before he died.
[16]The plaintiff also asserts that she was not paid wages.
The defendant denies that the plaintiff slept at Templestowe Lower after the deceased’s chemotherapy sessions or at any other time. She also:
(a) deposes that the plaintiff did not visit the deceased once after his chemotherapy sessions. However, during cross-examination she conceded that the plaintiff did visit Templestowe Lower for dinner because she and the plaintiff were ‘good friends’, and that maybe she had ‘made a mistake’;
(b) initially denied that the deceased stayed at Mont Close during this period. However, when shown WeChat messages from April 2018 suggesting that the deceased was ‘shivering’ one night when staying at Mont Close, conceded that the deceased was not sleeping at Templestowe Lower every night. Rather, she stated that after October 2014 he was sleeping at her house ‘the majority of his time’. She also conceded that the plaintiff visited Templestowe Lower in May 2018;
(c) identifies that the deceased has his own Medicare Card, and that his tax returns for the years 2013 to 2017 do not disclose that he was in a de facto relationship;
(d) identifies a copy of the deceased’s application for a Centrelink disability pension, dated 30 January 2018. The form shows, among other things, the deceased’s address as Templestowe Lower and that the deceased was separated. Further, that the reason the deceased did not live in the home that he owned was because he was separated. When asked why the application was missing a cover page, the defendant answered ‘can’t remember’. Significantly, sections of the form relevant to the deceased having a partner appear to have been altered,[17] that is, tick boxes and the outline of boxes for insertion of information are incomplete; and
(e) identifies medical records from January and June 2018 that describe the deceased’s marital status as ‘divorced’ and ‘separated’.
[17]The defendant agreed with this proposition.
When it was put to the defendant that the deceased’s original Centrelink form was altered because his relationship status affected his potential Centrelink benefit, she stated that the relationship status between the deceased and the plaintiff was ‘always clear’, and that she was not aware of any change because she did not fill in the form. Further, when it was suggested to the defendant that the relationship information provided to the hospitals was intended to be consistent with the altered Centrelink form, the defendant responded that she ‘did not know’. When she was asked why earlier medical records were not before the Court, those that predated the Centrelink form, the defendant stated that ‘it was an oversight’ and that she did not remember whether such records were included in her affidavits.
Leanne gave evidence that, after the defendant purchased Elate kitchen, the deceased stayed at the defendant’s house more. He told her that this was because the defendant would drive him to work and chemotherapy. Further, there were nights when the plaintiff would tell her that she was staying at Templestowe Lower with the deceased and, after April 2018, the plaintiff stayed with the deceased at Templestowe Lower more often, around two or three nights per week. Leanne also confirms that she transferred the deceased $15,000 although she was unaware of the reason that he needed the funds.
The deceased’s sister, Suk King Ho deposes that she visited Melbourne on occasions between 2007 and 2018. She met the plaintiff several times at the defendant’s house but did not hear the plaintiff refer to the deceased as her husband. Further, she recalls that one day in early 2018 she visited Mont Close with the deceased. He took clothes from the ground floor bedroom to change into. She also observed men’s socks and shoes in the bedroom.
Ray Wong deposes that early in 2018 the deceased asked him and David Wong to come to Elate Kitchen to help with the business. They recommended that the defendant sell Elate Kitchen.
According to Mr Evans, on a regular basis until March 2018 he would hear the deceased return from work late at night, usually around midnight. He would observe the deceased’s car from the upstairs bedroom of his property. He further states that Leanne told him that ‘my Dad is very, very ill’. On one occasion in April 2018 he saw the deceased outside Mont Close in his pyjamas looking ill. When it was put to the defendant that the deceased was seen coming back to Mont Close most nights until early 2018 she said that it was not true.
Multiple WeChat messages from the plaintiff, appearing to have been sent to the deceased during March and May 2018, address the deceased as ‘husband’. It appears that the deceased replied by way of sending articles as general posts. The plaintiff states that the deceased mainly used WeChat to read articles and send them to family and friends. She states that she does not have records prior to this period as she changed phones in March 2018. On 14 May 2018, the plaintiff sent a message that stated:
Hey, husband. Nothing much, I won’t be coming over tonight because my spine is really hurting … Yeh, I have Wednesday night off I’ll come over then. Ok, you take care.
The defendant identifies that the deceased did not respond to any of the plaintiff’s communications after 13 December 2017. Moreover, phone records show that calls from the plaintiff to the deceased between December 2017 and June 2018 were limited in number, and either went unanswered or were short.
WeChat messages were also sent between the plaintiff and the defendant in the months of April, May and June 2018 referring to the plaintiff assisting at ‘the restaurant’ at times when the defendant had to take the deceased to medical appointments. The plaintiff also sent messages enquiring as to the deceased’s medical treatment.
The deceased died on 9 June 2018. The plaintiff states that, on that day, the defendant told her to help at Elate kitchen rather than attend the hospital. WeChat messages indicate that the defendant was initially planning not to open the restaurant, but then the plaintiff organised some assistance and offered to cover. The messages indicate that, at 9.12am, the defendant replied to the plaintiff saying that she would see ‘how it goes’, and that ‘he was lacking awareness’. The plaintiff then asked for the hospital address. At around 2.00pm the defendant sent a message asking the plaintiff to help at the restaurant. She telephoned the plaintiff at 8.00pm to inform her of the deceased’s death. Ray Wong called the plaintiff at around 11.00pm, and the plaintiff arrived at the hospital not long after.
Ray Wong deposes that the defendant phoned him at around 1.30pm to tell him that the deceased was dying. He then visited the deceased at 2.30pm. When he got to the hospital he asked the defendant why the plaintiff was not there and the defendant said that she was at Elate Kitchen. He stated that he was ‘shocked’. Ray Wong phoned the plaintiff at around 10.30pm. When questioned as to why he did not call the plaintiff earlier, having regard to the seriousness of the deceased’s condition, he stated: ‘they were … brothers and sisters and … husbands and wife … and this is, you know, a family matter to decide among themselves’.
Events subsequent to the deceased’s death
The defendant and her siblings made arrangements for the deceased’s funeral. A WeChat message sent on 11 June 2018 from the defendant to the plaintiff requested that the plaintiff give her some of the deceased’s ‘relatively new clothes’ as well as ‘things he liked to wear on a daily basis’ to be provided to the funeral home. When it was put to the defendant during cross-examination that, if the deceased was living with her, she would have had clothes that he liked to wear on a daily basis the defendant replied ‘well, I never I never have’, before clarifying that she wanted clothes in a new condition. She denied, however, that the deceased was living at Mont Close.
The plaintiff sent a wreath to the funeral with the words ‘loving wife’ and ‘loving daughter’ in Chinese characters on it.
On 7 July 2018, the defendant telephoned the plaintiff and informed her about the existence and contents of the deceased’s will. According to the plaintiff, this was the first time that she knew of the contents of the deceased’s will.
The defendant deposes that after the death of the deceased she went to Mont Close with her siblings on two occasions to collect the deceased’s personal items. On both occasions she sat in the lounge while her brother, Wing Lau, and sister, Suk King, went into the deceased’s room on the ground floor to pack his personal belongings. She deposes, however, that she saw men’s toiletry products and no women’s toiletry products in the bathroom attached to the deceased’s bedroom. This is consistent with Suk King Ho’s evidence, who stated during cross-examination that she collected the deceased’s personal items such as shirts, pants, pyjamas, underwear and cookbooks. The plaintiff admits that the deceased used the downstairs bathroom and would occasionally eat supper, watch television and fall asleep on the couch in the study. She maintains that there was never a pillow or pillowcase kept in the study room. She asserts that most of his clothes were upstairs, and that he showered downstairs so that he did not wake the plaintiff after work.
Contributions to Mont Close
The parties accept that the plaintiff contributed $254,000 toward the acquisition of Mont Close, comprised of a further loan against Tram Road of $200,000 and $54,000 in personal funds. The plaintiff asserts that she contributed 100 per cent of her income towards her family with the deceased and Leanne. She identifies contributions of $40,822 to living expenses and, together with Leanne, $231,344 towards the mortgage of Mont Close, including the aforementioned deposit of $50,000 in April 2016. She has two loans, totalling approximately $617,821, both said to have been incurred due to the purchase of Mont Close.
The defendant deposes that, between February 2014 and April 2017, the deceased repaid the sum of $219,256 towards the Mont Close mortgage. Beyond the $254,000 contributed to the acquisition of Mont Close, the defendant denies the plaintiff’s asserted contributions. Exhibited to the defendant’s first affidavit is a list of repayments purportedly made by the deceased. She conceded, however, that some of the cash deposits were made with the plaintiff’s Westpac Mastercard. According to the defendant, the deceased was paid in cash and sometimes the plaintiff would deposit the funds and sometimes she would. The deposit slips also show that the majority of the repayments were made in Doncaster, which is where the plaintiff was working. The defendant conceded that there is a possibility all of those deposits were made by the plaintiff. When pressed on this point the defendant stated:
My brother tell me –sometime he give me some money to tell me – he really lazy to the bank, all right? ... He only like to stay home, gardening, clean up, drinking, that’s all. He really lazy to go out.
Submissions
Plaintiff
The plaintiff submits that she was the deceased’s domestic partner for the purposes of s 90 of the Act. Chiefly relied upon as evidence that the plaintiff and the deceased had not separated are:
(a) the Interlock Compliance Court Report;
(b) photographs;
(c) the transfer by the plaintiff of $50,000 to the Mont Close loan account on 14 April 2016;
(d) the lack of equal contributions to the home loan account;
(e) the 2014 transfer of land form identifying ‘natural love and affection’ as consideration;
(f) the words on the wreath sent by the plaintiff to the deceased’s funeral.
Further, the plaintiff never pursued property settlement proceedings in the Family Court of Australia and, although she was not at the hospital when the deceased died, the risk of his imminent death was not apparent. Although the defendant suggests that the plaintiff ‘orchestrated’ the WeChat messages sent to the deceased after his diagnosis, the plaintiff submits that this assumes that the plaintiff knew of the content of the deceased’s will.
It is submitted that Mr Evans was an honest and credible witness, and that his evidence was not seriously challenged. Nor were key aspects of Leanne’s evidence, which is asserted to be of a kind which someone living with another in the same house in a step-father and step-daughter relationship would give. The evidence of David Wong was not challenged, in particular, his recollection of the plaintiff and deceased calling each other husband and wife is consistent with the WeChat evidence and the words on the wreath. Similar evidence of Ray Wong and the associated photographs are inconsistent with the plaintiff and the deceased having separated in October 2014.
According to the plaintiff, the defendant changed her evidence in relation to the plaintiff visiting Templestowe Lower, and the deceased staying at Mont Close, in response to opposing documentary evidence. Moreover, the loan application form and Centrelink application form appear to have inaccuracies and alterations respectively.
Finally, the plaintiff submits that Mr Chen was not a credible witness, and that Minli Zhu’s evidence is of little probative value. Regarding the former, it is difficult to reconcile how a very close friend of 13 years did not know where the deceased lived. As to Ms Zhu, her evidence is asserted to be vague in relation to events and dates.
The plaintiff submits that Ms Ip’s evidence should also be approached with caution given the lack of discovered file notes.
Defendant
The defendant argues that the plaintiff and the deceased were co-tenants, rather than living together on a genuine domestic basis.[18] If the two were ever in a domestic relationship, it is asserted to have ended in October 2014. It is submitted that from November 2014 the deceased moved back to Templestowe Lower and whenever he slept at Mont Close he slept in the room on the ground floor. This is said to be supported by:
[18]Relying upon Relationship Act 2008 s 35(3).
(a) the serious dispute between the plaintiff’s witnesses and defendant’s witnesses as to the reputation and public aspects of the relationship;
(b) contemporaneous documents showing that the plaintiff and the deceased were not domestic partners;[19] and
(c) the plaintiff orchestrating the WeChat messages and mobile phone calls after November 2017.
[19]Including, inter alia, the loan application, severance of the joint tenancy, the deceased’s last will, the loan note, and the Centrelink application form.
In relation to the latter, the defendant submits that the records on the deceased’s phone indicate that there were only limited group messages sent by the plaintiff between February 2016 and December 2017, to which the deceased did not respond. Moreover, it was only after December 2017 that the plaintiff called the deceased ‘husband’ in messages, and the deceased did not respond to these messages. Similarly, the plaintiff is said to have orchestrated the telephone calls to the deceased after December 2017, most of which went unanswered.
The defendant also points to the lack of joint holidays, the sleeping arrangements at Mont Close, the limited times the plaintiff visited the deceased while he was in hospital, the support that the defendant provided to the deceased when he was ill while the plaintiff instead worked, and the fact that the plaintiff was not involved in making the funeral arrangements.
Approach to the evidence
The evidence of the plaintiff is to be approached with caution, given the inability of the Court to receive evidence from the deceased.[20] Further, it is apparent that there are some generalisations and inconsistencies concerning dates and errors in the plaintiff’s evidence. Given the period of time that has elapsed since many of the events occurred, however, this is perhaps not surprising. Moreover, the plaintiff sought to correct errors and clarify in particular her initial general assertion that the deceased did not stay at Templestowe Lower.[21] During cross-examination the plaintiff gave consistent answers, particularly when pressed in relation to the support that she provided in the period that the deceased was unwell and the WeChat records. Although, at times the plaintiff directly accused the defendant of lying. On the whole, the plaintiff appeared to be a credible witness, albeit her evidence is to be approached with the usual caution.
[20]See Re Gleeson [2019] VSC 589, [31]; Re Sigg (n 4) [14].
[21]The plaintiff’s first affidavit did not disclose that the deceased stayed at Templestowe Lower after January 2018, this is said to be because when it was deposed, the existence of the relationship was not in dispute.
On a number of occasions the defendant’s evidence traversed matters that she had no direct knowledge of,[22] or had limited relevance to the issues in dispute.[23] As with the plaintiff, the defendant also sought to correct errors or statements from earlier affidavits. When challenged during cross-examination, at times the defendant’s answers were somewhat confused and inconsistent with her affidavit evidence. For example, in response to the suggestion that the deceased listed Mont Close as his address on tax returns because he lived there, the following exchange took place:
[22]For example, where the deceased slept at Mont Close, where the plaintiff slept during the two weeks she was away in 2009, and claiming the plaintiff only visited him once in the hospital.
[23]For example, the deceased transferring back his interest in Balwyn North.
Counsel:
So after he moved out, he used [Mont Close] as his residential address for his income tax return?
Defendant:
Why not? I tell him before –I ask him, ‘Why you not change this mailing address?’ But he told me –he said, ‘I got half the house. Why I take off?’ He – he like to go back any time he like to, you know, look after the garden thing and blah blah blah. He say, ‘Why I want to change it?’ He always, like, ten days away or two weeks. Depends on how he feel. He want to go back, go back.
...
Counsel:
Yes. What I’m suggesting to you is that, in fact, he was living there. That’s why he never changed his residential address on his income tax returns?
Defendant:
Just – this is what you say, all right?
The defendant also conceded that there were possibly mistakes and oversights in her evidence. As such, the Court has concerns as to the reliability of certain aspects of the defendant’s evidence.
In light of the difficulties concerning the evidence of the plaintiff and defendant, greater emphasis is placed upon the evidence of other witnesses, and the contemporaneous documentary evidence.
While the Court has some concerns surrounding the detail that Leanne provided in recalling events many years ago, such as exact figures paid for the acquisition of Mont Close, much of her evidence appears consistent with contemporaneous photographs or WeChat messages. During cross-examination her answers were clear and consistent with her affidavit material.
Of particular importance is the evidence of Ray Wong, and Hassen Evans. The significance of Ray Wong in the life of the deceased is indicated by:
(a) his presence at the celebration in December 2014, as supported by photographs;
(b) the deceased asking for his assistance regarding the ongoing affairs of Elate Kitchen in January 2018; and
(c) the defendant telephoning him on 9 June 2018 regarding the deceased’s condition, and Ray later telephoning the plaintiff.
His evidence was consistent and when challenged credible explanations were provided. Mr Evans also gave consistent evidence and explanations when challenged. Additionally, the evidence of David Wong is consistent with that of Ray Wong.
The Court accepts the plaintiff’s submissions that a degree of caution should be exercised regarding the evidence of Mr Chen, Ms Ip and Ms Zhu, because:
(a) the evidence of Mr Chen contained inconsistencies as to whether he considered the deceased and the plaintiff to be ‘good friends’ or ‘more than good friends’, and the occasions on which he had shared meals with both the plaintiff and deceased present. The Court also has some concern, if he was a close friend of the deceased’s, how Mr Chen was unaware of the location of the deceased’s new home;
(b) Ms Ip shifted somewhat in her description of the plaintiff and the deceased as ‘good friends’ or ‘boyfriend and girlfriend’. While her evidence of conversations with the deceased at Clifford Lawyers is relevant, it is not nearly as probative as contemporaneous file notes;[24] and
(c) the evidence of Ms Zhu was in general terms only.
[24]Moreover, Ms Ip conceded that she did not review the whole file and counsel for the defendant acknowledged that a request was not made to Clifford Lawyers to provide the complete file.
Was the plaintiff the domestic partner of the deceased?
The relationship between the plaintiff and the deceased extended over twelve years. The Court accepts that from 2006 to 2017 this included a sexual relationship. Such a conclusion is supported by the plaintiff’s evidence which is corroborated, to a limited extent, by the physical closeness of the plaintiff and the deceased in the photograph from February 2017.
In 2013 the plaintiff and the deceased purchased Mont Close together and, significantly, took out the Westpac loan together. In the Court’s view, the loan application form contains errors that make the reference to the plaintiff being ‘single’ therein unreliable. Further, even if the plaintiff and deceased initially contemplated using Mont Close as an investment property, this did not eventuate. Rather, with Leanne, they both moved into the property. During this period they spent days off together, gardening and going to Bunnings. Although the plaintiff and deceased did not holiday together, aside from the trip in 2017, the inference from the evidence is that they worked quite long hours, and when not working, shared simple pursuits that they both enjoyed close to home.
In the Court’s view, evidence that the deceased did not change his Medicare Card, and that his tax returns did not disclose any de facto relationship, is of limited weight. The evidence of the plaintiff, Leanne and the defendant suggests that the deceased often relied upon assistance in dealing with administrative tasks. The defendant suggested that in some respects the deceased could be ‘lazy’. As such, if there was no imperative for the Medicare or tax records to change it is doubtful that the deceased would have independently sought to change them.
Over a number of years while the plaintiff and the deceased were jointly contributing to the Westpac loan, the plaintiff and Leanne appear to have supported the deceased with his laundry, ironing and through purchasing the groceries. The evidence of Ray Wong, that on one occasion in 2016 he saw the deceased hand his cash income to the plaintiff, is consistent with the admission of the defendant that the plaintiff may have made a number of deposits to the Westpac loan account thought to be attributable to the deceased. Again, this suggests that the plaintiff and deceased were sharing aspects of their life and were more than co-tenants or companions.
The Court does not accept the defendant’s case that the deceased and plaintiff were co-tenants or ‘split-up’ in October 2014 and remained separated until the deceased’s death. The evidence supports the conclusion that there was an ongoing shared life between the plaintiff and the deceased, and that the deceased cared for Leanne, namely:
(a) in November 2014 the plaintiff and the deceased held a house-warming party, which Ray Wong stated was in part to celebrate the status of the plaintiff and deceased as a matrimonial couple. While on one view it is perhaps odd that, if this was a reason for the celebration, there are no photographs specifically of the plaintiff and the defendant as a couple, in the photographs that have been exhibited the two appear together and happy;
(b) in September 2015, the deceased, the plaintiff and Leanne were all invited for dinner at Templestowe Lower;
(c) in February 2016, the deceased cooked a celebratory dinner for Leanne at Templestowe Lower;
(d) in May 2016, David Wong and his wife visited Mont Close and were shown around the house. He described the plaintiff and defendant as then appearing as a ‘loving couple’;
(e) at dinner with Ray Wong in December 2016, the deceased gave his pay to the plaintiff and referred to her as his wife;
(f) the holiday in February 2017;
(g) prior to Leanne heading overseas in September 2017 he gave her $2,000, called her ‘daughter’ and offered his support to both her and the plaintiff if they needed anything; and
(h) during the period that the deceased was quite ill, he stayed at Mont Close at times to be cared for by the plaintiff and wrote the loan note, acknowledging the contributions of the plaintiff and Leanne.
Although the Interlock Court Compliance Report created in 2015 also supports the view that the plaintiff and deceased continued a shared life, its reference to ‘children’ detracts from its reliability.
Even if it is accepted that the deceased stated to the defendant and Ms Ip in November 2014 that he had ‘split up’ with the plaintiff, this is inconsistent with the weight of subsequent evidence. In the Court’s view, that the deceased sought to execute a will and sever the joint tenancy is equally explicable on the basis that it was initiated in the period leading up to the house-warming party. Accepting that the party was a celebration of the plaintiff and deceased’s status as a couple, the deceased may have been motivated to organise his legal affairs. Further, it may not be considered unusual in the circumstances for the deceased to direct his assets to his biological relative.
Similarly, although Mr Chen gave evidence that the deceased: was quite sad in October 2015, was very unhappy with the plaintiff, and had ‘split up’ with the plaintiff, this is somewhat inconsistent with the plaintiff, the deceased and Leanne having dinner at Templestowe Lower a month prior. There is also inconsistency between that evidence and the celebratory dinner for Leanne three months later. There is also a temporal disconnect between the asserted comments of the deceased and the alleged separation nearly twelve months earlier.
In the Court’s view, the alterations to the Centrelink application form make it unreliable. Although the medical records from 2018 show the deceased as ‘divorced’ and ‘separated’, it is not apparent what changed from the weight of evidence in 2016 and 2017 suggesting that the plaintiff and defendant were living a shared life, other than the deceased’s diagnosis. In this respect, it is apparent that both the plaintiff and the defendant were supporting the deceased through his illness. The Court rejects the notion that the plaintiff sought to orchestrate her WeChat messages and phone calls to the deceased. The basis for this appeared to be the limited replies from the deceased, and the plaintiff’s use of ‘husband’. However, the plaintiff explained the deceased’s limited use of WeChat which, to a degree, appears consistent with his personality. At least one of the messages to the deceased also reflected a message sent to the defendant and an event that actually occurred. Further, although records of communication between purported domestic partners can assume greater relevance when individuals are physically separated,[25] a significant contextual factor here is the deceased’s late stage cancer diagnosis. Individuals and families may respond in diverse ways upon receiving such news, and it would be inapposite to draw conclusions based upon comparisons with what was either assumed, or established, to be ‘typical’ types of communication.
[25]See White v Hume (n 2) [47] (Daly AsJ).
With regard to the nature and extent of common residence, the evidence weighs in favour of the deceased spending the majority of his time outside work between 2013 and November 2017 at Mont Close. Of particular significance is the evidence of Mr Evans in observing the deceased’s car, and his enquiry of Leanne and the plaintiff in 2018 as to why he had not seen the deceased as frequently. Further, WeChat messages between Leanne and the defendant indicate that the deceased was spending time there, his usual clothes were there up until his death, and in her evidence the defendant appeared to refer to Mont Close as the defendant’s ‘home’. The defendant also conceded that he spent two weeks blocks of time there, which are longer than that required to simply feed fish and maintain the garden. There is a degree of inconsistency in the defendant’s evidence that she took a display crystal to the deceased at Mont Close in October 2014, when she also asserted that during that period he was moving his personal items to Templestowe Lower.
The Court accepts that the deceased used the downstairs study as his own space. As much was conceded by the plaintiff and is supported by WeChat messages. However, such evidence is not determinative. Similarly, in a context where the evidence suggests that the deceased frequently drank alcohol at work, and in light of the general evidence of Ms Zhu, it is perhaps unsurprising that at times the defendant may have collected the deceased from the bus stop and that he stayed at Templestowe Lower from time to time. Again, this reflects the reality that both the plaintiff and defendant supported the deceased at times. The evidence also supports the conclusion, viewed in light of the practical, human reality of the situation, that the deceased spent increasing nights at Templestowe Lower during the period from November 2017 to 8 June 2018. It is likely that the deceased’s illness, rather than a separation from the plaintiff, explains the deceased’s increasing presence at Templestowe Lower from November 2017. Of note is the plaintiff’s evidence, denied by the defendant but corroborated by Leanne, that she spent nights with the deceased at Templestowe Lower during that period, an action that is inconsistent with separation.
Finally, in relation to the reputation and public aspects of the relationship, the evidence of the plaintiff’s witnesses and defendant’s witnesses clearly differs as to whether the plaintiff and deceased referred to each other as husband and wife. Weight is given to the evidence of Mr Evans, Ray Wong and David Wong, in concluding that at times at least between 2014 and early 2018 the plaintiff and the deceased referred to each other as husband and wife. Such a finding, however, is not necessarily inconsistent with the plaintiff and defendant not openly affirming their relationship in the presence of Mr Chen and Ms Ip.
Ultimately, viewing all of the evidence as a whole, the Court concludes that the plaintiff and the deceased were living as a couple on a genuine domestic basis continuously from at least 2013 until the deceased’s death.
Was the plaintiff the former domestic partner of the deceased?
Given the preceding findings, it is no longer necessary to determine the plaintiff’s alternative case, however, the Court will consider it briefly.
Counsel for the plaintiff made few submissions on the second question, clarifying in closing that the alternative case was only raised because of the temporary ‘physical separation’ of the plaintiff and deceased in January 2018. Without conclusively determining the matter, if the finding that the deceased stayed at Templestowe Lower for increasing nights from November 2017 and had limited recorded communication with the plaintiff during that period precludes the conclusion that he was then living with the plaintiff as a couple on a genuine domestic basis, the Court would be prepared to otherwise accept that the plaintiff is eligible as a ‘former domestic partner’ of the deceased. That is, the de facto relationship lasted longer than two years and any FLA proceeding would still be within time on the assumption that the separation only occurred in November 2017, and the plaintiff cannot commence the proceeding on account of the death of the deceased. However, it should be emphasised that the parties did not address the plaintiff’s alternative case in any depth.
Conclusions and orders
The evidence establishes that the plaintiff was a domestic partner of the deceased at the time of his death as that phrase is used in s 90 of the Act. As such, she is an eligible person for the purposes of s 90A, and able to apply for family provision under Part IV of the Act.
The parties are to forward proposed minutes of order for the finalisation of the plaintiff’s claim for family provision, as well as proposed orders as to the costs of the preliminary question. In the event that the parties are unable to agree on the costs of the preliminary proceeding, short written submissions should be forwarded to the Court.
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