Riboskic v Stanojevic
[2019] VCC 1764
•13 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| FAMILY PROPERTY LIST |
Case No. CI-18-03391
| IN THE MATTER of Section 99 and Part IV of the Administration and Probate Act 1958 | |
| and | |
| IN THE MATTER of the Estate of SLOBODAN STANOJEVIC, deceased | |
| MILICA RIBOSKIC | Plaintiff |
| v | |
| MILOVAN STANOJEVIC (who is sued as the executor of the Will and Estate of Slobodan Stanojevic, deceased) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 12 September 2019 | |
DATE OF JUDGMENT: | 13 November 2019 | |
CASE MAY BE CITED AS: | Riboskic v Stanojevic | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1764 | |
REASONS FOR JUDGMENT
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Subject: SUCCESSION LAW
Catchwords: Deceased made no provision for the plaintiff - plaintiff alleges that she was the domestic partner of the deceased - defendant the executor and trustee of the deceased estate – deceased’s whole estate left to the defendant - defendant denied the plaintiff and the deceased were in a domestic partnership - difficulties arising by reason of the manner in which the plaintiff gave her evidence - openly obtuse, combative and non-responsive during cross-examination - resort to other evidence which corroborated the plaintiff's evidence of a domestic partnership - whether that evidence adequate to give foundation to the plaintiff's case - finding that the plaintiff and the deceased were in a domestic partnership - whether the deceased owed the plaintiff a moral duty - whether the deceased was in breach of that moral duty - quantification of adequate provision - defendant's competing claim
Legislation Cited: Administration and Probate Act 1958 (Vic); Relationships Act 2008
Cases Cited: Brimelow v Alampi (2016) 50 VR 219
Judgment: Orders made making provision for the plaintiff out of the Estate of the deceased.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Reynolds | McKean Park |
| For the Defendant | Mr W F Gillies | Zaicos Stantchev & Co |
HIS HONOUR:
Introduction
1 Milica Riboskic (“Milica”) filed an Originating Motion on 13 July 2018 applying for adequate provision to be made for her proper maintenance and support, pursuant to s91 of the Administration and Probate Act 1958, out of the estate of the deceased, Slobodan Stanojevic (referred to as Stan during the trial).
2 The defendant is the executor and trustee of Stan’s estate. He is Stan’s brother.
Milica
3 Milica was born on 17 October 1954. She is sixty-five years of age. She was previously married in 1972. She has a child from that former marriage, Natali, who was born in January 1974. Milica separated from her husband in 1977.
4 Milica became acquainted with Stan in about 1977. In her first affidavit sworn 4 September 2018 (“Milica’s first affidavit”), she describes that she and Stan commenced living together after they met, and I infer that was probably in 1977.
5 The defendant seized upon an apparent contradiction in Milica’s account of the date of commencement of the domestic relationship. In paragraph 2 of her first affidavit, she described it as a domestic partnership between about 1997 and November 2016. In paragraph 7 and following, she referred to the date of its commencement as 1977. She repeated the commencement date as 1977 in paragraph 13 of her second affidavit sworn 26 March 2019 (“Milica’s second affidavit”). I will return to this issue later in these reasons.
Stan
6 Stan was born on 12 January 1952. He died on 23 February 2018. He was also previously married. He has a child born of that former marriage, Radovan. Radovan lives in Serbia. There is little in any of the evidence of Radovan’s background or his circumstances. In the defendant’s first affidavit sworn 5 September 2018 (“the defendant’s first affidavit”), he described Radovan as being unwell and unemployed. He added that he has been supporting Radovan since Stan died.
Milovan
7 Milica says that a child was born during the domestic partnership, namely, Milovan (referred to as Michael during the trial). Michael was born on 21 August 1980. He died on 23 February 2018.
8 The defendant denies that Milica and Stan were in a domestic partnership. He initially said that he believes that Michael is not the son of Milica and Stan, but born of the relationship between Stan and his first wife. I will return to this issue later in these reasons.
Stan’s estate
9 Stan’s mother and father, Latinka and Radomir Stanojevic, purchased adjoining properties at 49 and 51 King Edward Avenue, Albion. It would appear that Radomir predeceased Latinka. Latinka died on 5 January 2016. She appointed Stan as the executor and trustee of her will dated 13 May 2015. Stan obtained probate on 13 April 2017. She left the whole of her estate to Stan and the defendant.
10 The defendant was appointed the executor and trustee under Stan’s last will (the date is obscured). The defendant obtained probate on 5 June 2018. Apart from a bequest of $5,000 to Michael, the balance of Stan’s estate was left to the defendant. No provision was made for Milica.
11 The defendant filed an affidavit of executor (the date is obscured) in support of his application for probate. He disclosed that Stan’s estate comprised 51 King Edward Avenue, Sunshine (although it was referred to as Albion elsewhere). The value placed on that property was $700,000. In addition, there was personal property not described in any detail, with a value of $2,364.32.
Milica’s behaviour
12 I must start by making a number of observations about Milica’s evidence. I noted that the jurat clause to her affidavits demonstrates that she swore that her affidavits were true and correct through the assistance of an interpreter. On both occasions, the interpreter was Natali. No interpreter was used by Milica when she was called to give evidence. I was satisfied that she understood the oath that was administered, and satisfied that she understood that she was being asked to consider her two affidavits and their contents, and whether the contents of them were true and correct.
13 Milica’s evidence then took a turn for the worst when she was cross-examined. I was not in much doubt that she was being deliberately obtuse and non-responsive in the answers she gave. When she wanted to, she gave evidence reinforcing her claim that she was in a domestic partnership with Stan. At the lowest point in her evidence, she raised her voice, made a series of sometimes unintelligible accusations riddled with profanity against the cross-examiner and the defendant. When I endeavoured to create calm, she refused to respond to my direction that she stop her tirade and listen to the question and make every attempt to give a responsive and truthful answer. I broke the proceeding and instructed her counsel to inform her not to behave that way.
14 At the resumption of Milica’s cross-examination, at least the tirade on which she was engaged improved, but she persistently gave obtuse and non-responsive answers during cross-examination. Her behaviour has undermined my confidence that she was endeavouring to tell the truth, although I suspect there is some truth in some of the things she said about her relationship with Stan. The difficulty she has created for me is that I must now try to divine where the truth lies. I have resolved the manner in which I should deal with Milica’s evidence by only accepting her evidence where it is otherwise corroborated by other creditworthy and reliable evidence.
A domestic partnership?
15 It is convenient at this point to examine some relevant definitions in s6 (1) of the Administration and Probate Act 1958:
“domestic partner of a person who dies means a registered domestic partner or an unregistered domestic partner of that person.”
“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—
(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
(b)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.”
16 The reference to an unregistered domestic partner is clarified in ss(3):
“For the purposes of the definition of unregistered domestic partner in subsection (1), in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.”
17 Section 35 (2) of the Relationships Act 2008 is in the following terms:
“(2)In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case—
(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.”
18 Section 90 of the Administration and Probate Act 1958 also contains a relevant definition:
“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;
… .”
19 These definitions need to be borne in mind as I summarise the competing facts and consider whether Milica has made out a case.
The factual conflict
20 Milica was married in 1972. Natali was born in January 1974. Milica separated from her husband in 1977. In that year, she met Stan in Sydney. They commenced living together. She worked as a seamstress during the day and in a restaurant in the late afternoon and evenings. Stan was a painter.
21 Milica received $7,000 as a property settlement from her first marriage. The money was used by Stan to purchase a car. She was a passenger in that car driven by Stan when it was involved in a major transport accident. She suffered injury to a kidney, which resulted in her losing the kidney. She was awarded $50,000 compensation for her injuries. That money was used by Milica and Stan to purchase a milk bar. The business failed. Milica alleges that Stan was taking money from the shop’s takings to meet a gambling problem.
22 Michael was born on 21 August 1980 while Milica, Stan and Natali were living in Sydney. They moved as a family to Melbourne in 1980 and commenced living at 51 King Edward Avenue. They lived with Stan’s mother and father. Subsequently, they purchased a property at Ridley Street. Part of the funds used to purchase that property came from a compensation payout Stan received.
23 They moved as a family to Serbia in 1984. They remained there until 1987. Milica, Stan and Michael returned to Melbourne and lived at 51 King Edward Avenue. Milica then obtained employment in a cafeteria at the Royal Melbourne Hospital. Natali stayed in Serbia to complete two further years of schooling. She returned to Melbourne in 1989 and resumed living with the family.
24 In the late 1980s, Milica and Stan sold Ridley Street to pay debts which had been incurred due to Stan’s gambling. They lived in a flat for some time before purchasing Boreham Street, Sunshine. A bank, which presumably financed the purchase, foreclosed and sold the house. They then returned to 51 King Edward Avenue. They continued living there until late 2016, when their relationship became very volatile, resulting in both of them taking out intervention orders against each other.
25 Milica says that while they remained living together at 51 King Edward Avenue, she paid the following associated with them living there: rates, utilities, groceries, renovations to two bathrooms, re-blocking, plastering, roofing, the construction of an additional bedroom, kitchen renovation and construction of a sitting room and sunroom. Presumably, Milica must have had a source of income in order to have the wherewithal to pay for all of these things; however, apart from some modest references to work in Sydney and Melbourne, she has not said much at all regarding the sources of her income and for example the works undertaken at 51 King Edward Avenue. Nor is there much reference to any income earned by Stan and how it was used.
26 Milica says that Stan drank heavily and gambled heavily throughout their relationship. She says that he was also violent, and had taken out his violent tendency on both her and Michael. During a trip to Serbia in 2013, he assaulted both she and Michael, resulting in her being hospitalised.
27 Milica says that in late 2016, Stan threatened to kill her. She applied for an intervention order, as did Stan. The effect of the intervention order taken out by Stan was that she was prohibited from entering 51 King Edward Avenue. She has lived elsewhere since the intervention taken out by Stan was made a final order.
28 During cross-examination, Milica gave evidence which cast some doubt on whether there was a subsisting domestic partnership. The defendant made a demand of Milica that she produce documents in the possession of Centrelink because of his belief that those documents would show that Milica did not live for any significant period of time, or at all, at 51 King Edward Avenue. Milica answered the demand by producing a letter dated 9 September 2019 from Centrelink. Attached to the letter is what is described as a Centrelink Customer Record. The defendant was content to accept the attachment to the letter as satisfying the demand.
29 The defendant cross-examined Milica on the basis that the attachment demonstrated that she rarely lived at 51 King Edward Avenue. I have extracted only the particular parts of the attachment on which the defendant concentrated his cross-examination of Milica.
Address Start Date 4A Harmon Avenue, St Albans 22 December 2017 4 Harmon Avenue, St Albans 22 December 2017 51 King Edward Avenue, Sunshine 26 September 2016 Unit 5 23 Power Street, Hawthorn 3 December 2015 51 King Edward Avenue, Sunshine 2 December 2015 5/23 Power Street, Hawthorn 7 April 2005 65/127 Gordan Street, Footscray 10 October 2002 165/127 Gordan Street, Footscray 10 October 2002 10 Churchill Avenue, Maidstone 10 October 2002 127/130 Gordon Street, Footscray 9 January 2001 51 King Edward Avenue, Sunshine 13 April 2000 3/128 Blackshaws Road, Spotswood 12 July 1999
30 The defendant treated the attachment as if it was an accurate record of where the Milica lived at the various dates recorded next to various addresses. He was particularly keen to propose that Milica lived at 5/23 Power Street, Hawthorn from 7 April 2005 to 2 December 2015. I am not persuaded that I can make anything much of the attachment and what it discloses. One of the hieroglyphics in the attachment is “HOM”. That hieroglyphic appears before each entry noted on the attachment. I do not know whether that means an abbreviation for the word “home” or it represents something else. It may be that what is disclosed in the attachment comprises mailing addresses and not residential addresses where Milica was living. I simply do not know, and, therefore, I am not prepared to give the content of the attachment the weight contended for by the defendant.
31 Milica admitted that she had lived at 5/23 Power Street, Hawthorn on and off. It is a housing commission residence which Milica leased. Because of the way in which Milica gave her evidence, I found it difficult to determine when she took out the lease, why she took it out, how often she resided at that address, and how she managed to meet the rent and outgoings associated with that residence.
32 In summary, and during cross-examination, Milica said a number of things which potentially undermined her case that she was in a domestic partnership with Stan at all or for as long as she asserted.
· She conceded that her domestic partnership with Stan was on and off.
· She said that she lived at 5/23 Power Street, Hawthorn on and off.
· She said that she and Stan had not engaged in a sexual relationship for about sixteen years before they separated.
· She conceded that she was in receipt of a single person’s disability pension during the time that she said she was in a domestic partnership with Stan.
· She denied the accuracy of a statement prepared by a police officer in relation to her application for intervention order which represented that she had been separated from Stan for 16 years.
· She said that her relationship with Stan subsisted because Stan was sick, and I assume that was a reason why she cohabited with him. She also said that when they cohabited, that she slept in the same bed with him.
The corroborative evidence
Natali
33 Natali adopted the contents of her affidavit sworn 5 March 2019 as being true and correct. She said that Milica and Stan lived in a domestic partnership in Sydney. They moved, as a family, to Melbourne in 1980 and lived at 51 King Edward Avenue. In 1984, the family moved to Serbia. By that time Michael had been born. Milica, Stan and Michael returned to Melbourne from Serbia in 1987. Natali remained in Serbia to complete a level of her schooling. She returned to Melbourne in 1989 and lived with Milica, Stan and Michael at 51 King Edward Avenue until 1993. She understood that Milica, Stan and Michael continued to live at that address. She returned to live at 51 King Edward Avenue in 1994. They all continued residing there until 2015, when Stan went overseas. He returned from overseas in about September 2016, and lived at 49 King Edward Avenue. In the meantime, Natali, Milica and Michael continued living at 51 King Edward Avenue until October 2017. It was after that that Natali and Milica went to live at 4a Harmon Avenue, St Albans.
Metodija
34 Metodija Stoimenvoski (“Metodija”) adopted the contents of his affidavit sworn 22 March 2019 as being true and correct. He regarded himself as a close friend of Milica and Stan for about twenty years. During that period, he said Milica and Stan lived together at 51 King Edward Avenue until late 2015 to early 2016. He is a carpenter by occupation. He described doing the following work there:
· He re-blocked the house in 2010
· He did some plastering on the house at around that time
· He did work on the roof about eight or nine years ago (2010-2011)
· He helped build a pergola about five years ago (2014).
35 In addition to performing work at 51 King Edward Avenue, he observed Milica and Stan to behave as a couple. He heard Stan refer to Milica as his wife, and to Natali as his daughter. He saw them at pokie venues together, where they would have drinks, dinner and play the pokies. He observed the plaintiff to undertake cooking, housekeeping, laundry, collecting mail, doing the shopping, and caring for Latinka. On the occasions when he performed work there, he was provided food and drink by Milica. He was paid for the work he performed by Michael.
36 During cross-examination, Metodija said that he knew that Milica left 51 King Edward Avenue at various times. He said that he believed that she did so because Stan was violent. He added that the police visited the premises a number of times. He described 5/23 Power Street, Hawthorn as being like an emergency residence for Milica. When he was paid by Michael it was in cash. He has no documents proving that he undertook the work he described.
Vidoslava
37 Vidoslava Grujin (“Vidoslava”) adopted the contents of her affidavit sworn 21 March 2019 as being true and correct. She said that she has known Milica and Stan for about thirty-three years. She and her husband met them in 1986 when they ran an hotel. They became friends. Vidoslava and her husband purchased a home at Sunshine in about 1991 which was nearby to 51 King Edward Avenue. It was thereafter that she was a regular visitor to their home at 51 King Edward Avenue. On the occasions when she visited, Milica answered the door. She observed Milica to undertake laundry, cleaning, mopping, washing, cooking, collecting mail and gardening.
38 Vidoslava opened a coffee shop in Footscray. She employed Milica on a casual basis at the café. She later purchased a restaurant in Lygon Street. She employed Milica to work in the kitchen of the restaurant. Stan visited the restaurant while Milica was there, after he finished work. On those occasions, Vidoslava, Milica and Stan were together. She observed Stan showing affection to Milica, for example hugging and kissing her.
39 Vidoslava met Latinka. She said that Latinka told her that Milica looked after her by cooking for her. She said that Latinka told her that she wanted Milica to have everything because she had a poor view of her sons.
40 Vidoslava sold the café after about three years, and purchased another hotel in Sunbury. She said that Milica, Stan and Michael helped her. As an example she referred to them helping her unload deliveries to the hotel for which she gave them about $50. Milica helped out at the hotel by doing some cooking. Stan would go to the hotel in the evenings. Milica would cook for him. Vidoslava considered that what she observed about Milica and Stan’s interaction was consistent with a normal relationship between domestic partners.
41 Vidoslava used the shower in the ensuite bathroom at 51 King Edward Avenue at a time when her home was being renovated. On the occasions when she did, she says she observed Milica and Stan’s clothing in a wardrobe and in and around their bedroom. She also observed toiletries in the bathroom which she believed were Milica and Stan’s. On other occasions when she visited, Michael answered the door. She observed Milica and Stan in bed together. It would appear that it was on these occasions that she would share breakfast with Milica and Stan.
42 Vidoslava observed that work was undertaken at 51 King Edward Avenue when Milica and Stan were living there. She said that her brother, Tom, put a new roof on the house in 2010 or 2011. Michael paid for the cost of the roofing. She saw Milica, Michael and Natali paying tradesmen who must have also been involved in putting on the new roof, and she also saw them paying other tradesmen for other renovations. She said that she saw that they had installed a new kitchen, had painting undertaken, the installation of a new shower in their ensuite bathroom and polishing of floorboards. She said that Stan and Michael did most of the painting. She assisted Milica by driving her to the post office to pay rates, gas and electricity bills because Milica did not drive. She was aware that there was trouble between Milica and Stan and that intervention orders had been taken out.
43 During cross-examination, Vidoslava said that she knew that Milica rented 5/23 Power Street, Hawthorn. She had been there twice, presumably when Milica was there. She did not say when she went there. She agreed that Milica’s relationship with Stan was on and off. She repeated that she saw monies being paid for work undertaken at 51 King Edward Avenue.
Emile
44 Emile Olar (“Emile”) adopted the contents of his affidavit sworn 21 March 2019 as being true and correct. He said he has known Milica and Stan for about thirty years. He said they lived at 51 King Edward Avenue for the majority of the time that he knew them until late 2015 to early 2016, when he understood that Stan had travelled overseas. He regularly visited them at that address until sometime around Easter in 2013 or 2014. He considered that they acted like a couple. He observed Milica undertaking cooking on occasions when he visited them. He heard Stan referring to Milica as his wife, and talked about Natali and Michael as their children. He also observed items of clothing on an ironing table and shoes at the front door which he believed belonged to Milica and Stan.
45 On the occasions that Emile visited Milica and Stan at 51 King Edward Avenue, he observed Milica to cook. She offered him food and drink, and he observed her to clean up after meals. Emile and his wife went out to restaurants with Milica and Stan. He saw them at birthday parties and weddings together. Emile and his wife bumped into Milica and Stan when they were out shopping, and his appreciation of their relationship was that they behaved as if they were husband and wife. He said that he observed these things until 2016, when he understood that Milica and Stan had separated.
46 Emile helped Milica and Stan renovate 51 King Edward Avenue in 2010, 2011 and 2012. He referred to helping them undertake framing work and plastering in their kitchen, installing a kitchen and installing windows.
Petre
47 Petre Nicoloski (“Petre”) was called to give evidence by Milica. He struggled to take the oath in English. He struggled to understand that he was being asked to look at his affidavit sworn 22 March 2019. I was left with the strong impression that he could not communicate well enough in English to understand what he was being asked, or he was in a confused state. I was not satisfied that he adopted the contents of his affidavit as being true and correct. He gave some oral evidence that he had spoken to Stan by telephone. He had been to see him. Milica had made him coffee on the occasions that he visited Stan, and he recalled Stan referring to Milica as his wife. His failure to take the oath effectively and his manner have not left me with much confidence that I can accept any of his evidence.
The defendant
48 The defendant adopted the contents of his affidavits sworn 5 September 2018 and 10 April 2019 as being true and correct. His evidence was in stark contrast to the evidence of Milica and the witnesses she called. He was adamant that Milica and Stan were not in a domestic partnership, and that they did not live at 51 King Edward Avenue. Almost the entire substance of his evidence was a denial of the whole of the evidence of Milica and her witnesses. He did, however, eventually concede that Michael was the son of Milica and Stan despite unequivocally denying that was the case in his affidavits.
The issues
49 The evidence appears to me to raise the following issues:
· Was there a genuine domestic partnership at any time from 1977?
· Whether there was a domestic partnership subsisting from 1977 throughout the period ending at November 2016.
· If there was domestic partnership, whether it ceased much earlier than 2016, and what relationship subsisted was one of convenience.
Conclusions
50 I was singularly unimpressed by the manner in which Milica gave her evidence for reasons I have already explained; however, my impression of her does not mean that I reject all of her evidence. I think there is a thread of truth in what she has said about how she met Stan, and that after meeting him they entered into a genuine domestic partnership. I am fortified in reaching that conclusion because of the evidence of Natali, but in particular, the evidence of Metodija, Vidoslava and Emile.
51 There is no significant challenge to Milica’s evidence that she met Stan in Sydney, and that they had some semblance of a relationship, and certainly of sufficient quality for them to have had a child (Michael).
52 There is no significant challenge to the evidence of Metodija, Vidoslava and Emile that they knew Milica and Stan for significant periods of time prior to September 2016. The challenge, to the extent that there was a challenge to their knowledge of Milica and Stan, was a very broad one. It was put to each of them that they were not telling the truth. Each denied that proposition.
53 I accept their evidence that they had a reasonably intimate knowledge of the lives of Milica and Stan. What is common in their evidence is that they visited Milica and Stan at 51 King Edward Avenue. They observed them to live as if in a domestic partnership. I prefer the evidence of Natali, Metodija, Vidoslava and Emile that Milica and Stan were in some measure of a relationship from 1977, and probably a genuine domestic partnership, through to September 2016.
54 I must add that in reaching the conclusions referred to in the next paragraph, I have not ignored the difficulties in dealing with Milica’s evidence, and in particular, some aspects of it which troubled me in determining whether in fact she and Stan were in a genuine domestic partnership. The fact that, among other things, Milica described her relationship with Stan as being on and off; that she leased the flat at 5/23 Power Street, Hawthorn and resided there from time to time; that there was no sexual relationship for a significant period of time; that she was in receipt of a single person’s disability pension and that they were probably in an acrimonious relationship due to personality conflicts, would suggest a relationship of emotional distance and convenience rather than one consistent with a genuine domestic partnership.
55 I think it is difficult to provide explicit reasoning why a relationship should be considered to be a genuine domestic relationship as opposed to one that is not. Obviously, the less features consistent with a broad community understanding of what constitutes a genuine domestic partnership and by having regard to the matters referred to in s35(2) of the Relationships Act 2008 are very relevant factors in reaching a conclusion whether there is evidence consistent with the existence of genuine domestic partnership. I think care needs to be exercised to avoid being seduced into thinking that a model relationship is the comparator in determining whether genuine domestic partnership exists or not. Individuals vary, what they value in a relationship varies, and just because it is apparent that individuals in a relationship have quirks and idiosyncrasies, and even degrees of volatility in their relationship, does not necessarily point to there being an absence of overall features consistent with genuine domestic partnership.
56 I think the evidence of Natali, Metodija, Vidoslava and Emile comfortably corroborate Milica’s evidence that she and Stan were in a genuine domestic partnership from 1977 to September 2016. The whole of that body of evidence goes to satisfying me of each of the matters referred to s35(2) of the Relationships Act 2008.
· The whole of their evidence satisfies me that there was a degree of mutual commitment to a shared life.
· The domestic relationship was a long one, extending from 1977, and potentially to September 2016.
· They lived together in Sydney, at two other houses which they had purchased together, and then at 51 King Edward Avenue.
· There must have been a sexual relationship at some point, because Michael’s birth is the evidence of that; however, Milica’s evidence is that there had not been a sexual relationship for some time.
· I infer that their level of financial independence was gained through the modest wages which Milica probably earned and the wages earned by Stan through his occupation as a painter.
· They purchased two houses together during the time their domestic partnership subsisted which Milica alleges were lost due to Stan’s gambling.
· They cared for and supported Natali and Michael as the children of their household.
· They gave Metodija, Vidoslava and Emile the impression as having a reputation as a man and wife, or a couple, and their ventures in public socially demonstrate aspects consistent with that reputation.
An eligible person
57 Milica cannot sustain this claim unless she falls within the definition of “eligible person” referred to in s90(1) of the Administration and Probate Act 1958. I accept that she falls within that definition.
58 The definition provides, by paragraph (e), that a former domestic partner is eligible if the former domestic partner would have been able to take proceedings under the Family Law Act 1975, and has not taken those proceedings, and is now prevented from taking those proceedings because of the death of the deceased.
59 I have concluded that Milica and Stan’s domestic partnership came to an end by September 2016. Therefore, she is a former domestic partner of Stan. It is clear that she had not taken proceedings under the Family Law Act 1975. It is clear that she now cannot do so because of the death of Stan. I am in no doubt that the provisions of the Family Law Act 1975 give jurisdiction to the Family Court to determine property issues of the parties to a domestic partnership.
60 The definition of eligible person contemplates whether Milica would have been able to take proceedings, not whether those proceedings would have been successful. What I mean by successful is whether she could have identified property within the domestic partnership from which she was entitled to some alteration of property interests or to an order for maintenance.
61 The qualifying word “genuine” is used in the definition of “unregistered domestic partner” in s3(1) of the Administration and Probate Act 1958. Subsection (3) commences with the words “For the purposes of the definition of unregistered partner”, and it then provides that all the circumstances of the relationship must be taken into account, including each of the matters referred to in s35(2) of the Relationships Act 2008.
62 I am satisfied that Milica’s relationship with Stan was a genuine domestic partnership for the reasons which I have set out above.
Quantum
63 In Brimelow v Alampi,[1] McMillan J observed that the following must be satisfied before a family provision order can be made under s91 of the Administration and Probate Act 1958:
[1](2016) 50 VR 219 (“Brimelow”)
· an applicant is an eligible person;
· at the date of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
· the distribution of the deceased’s estate fails to make adequate provision for the maintenance and support of the eligible person.
64 Furthermore, her Honour observed that there are factors which must be taken into account in making a family provision order referred to in s91A(1) and (2). In relation to the factors referred to in s91A(1), the court must have regard to:
· the deceased’s will;
· any evidence of the deceased’s reasons for making the dispositions in the will; and
· any other evidence of the deceased’s intentions in relation to providing for an eligible person.
65 The content of the deceased’s will is known. There is no evidence of the deceased’s reasons for making the dispositions in his will nor any other evidence of his intention, except for the evidence of the defendant that Milica and Stan were never domestic partners.
66 I will now turn to each of the factors referred to in s91A(2):
(a) Milica and Stan were in a domestic partnership which commenced in 1977 and subsisted until September 2016, probably deteriorating before their domestic partnership finally came to an end in 2016.
(b) Stan had an undoubted obligation and responsibility in a general sense to Milica.
(c) The size of the estate is $700,000.
(d) The plaintiff is a sixty-five-year-old pensioner with little or no capacity to return to any gainful employment. It is clear that her financial needs are to have a roof over her head and have provision for future contingencies.
(e) The plaintiff has a number of medical conditions. There is very little evidence demonstrating what those medical conditions are and the extent to which they impair the plaintiff’s general functioning.
(f) The plaintiff is sixty-five years of age.
(g) The plaintiff worked during the period of the domestic partnership. She says that she contributed monies toward the work undertaken on 51 King Edward Avenue. I accept that that she did work, but I am not convinced that it was to the extent Milica describes in her second affidavit.
(h) Milica has not obtained any previous benefits of any kind from Stan.
(i) I infer that Milica was being maintained by Stan during the period of their domestic partnership up until a time when the relationship deteriorated significantly. I infer that she was maintained partly from the income Stan earned as a painter, and partly from her own income.
(k) There is no evidence to suggest that there is anything untoward in Milica’s character, nor that she conducted herself in a manner contrary to the interests of both herself and Stan during the time they were domestic partners.
(l) The defendant’s second affidavit points to him having no assets over and above the ownership of 49 King Edward Avenue, and a present entitlement to 50 King Edward Avenue, subject to the quantification of adequate provision for the proper maintenance and support of Milica.
(m) I do not think there are any other matters which are relevant.
67 In Brimelow, her Honour very helpfully set out the basis upon which quantum is to be determined:
“17 Pursuant to s 91(4)(a) and (b) of the Act, in determining the quantum of any provision, the Court must take into account the degree to which, at the time of death, the deceased had a moral duty to provide for an applicant and the degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of an applicant.
18In relation to adult children, pursuant to s 91(4)(c) of the Act, the Court must also take into account the degree to which the eligible person is not capable, by reasonable means, of providing adequately for his or her own proper maintenance and support. This is intended to limit claims by adult children who are not suffering financial hardship, however, the financial need of the applicant as well as any other competing claims on the deceased’s bounty still needs to be considered in the context of proper maintenance and support.
19In relation to all claims, pursuant to s 91(5)(a) of the Act, the amount of provision must not provide for an amount greater than is necessary for an applicant’s proper maintenance and support.
20What constitutes proper provision for the maintenance and support of an applicant involves a consideration of the station in life of the applicant, the age, sex, health and financial resources of the applicant, the size and nature of the testator’s estate and the totality of the relationship between the applicant and the testator and the relationship between the testator and other persons who have legitimate claims upon his or her bounty.
21In determining what is adequate for the proper maintenance and support of an applicant, the Court has regard to the necessities or needs of the applicant and his or her own capacity and resources for meeting them. This also involves a consideration of the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. Thus, in determining this question, a balance must be drawn between the established claims of the named beneficiaries, the needs of the applicant, the size of the estate and the benefits provided to the applicant and others with legitimate claims upon the testator. The Court’s function is not to ensure a fair distribution of the testator’s estate or to achieve equality amongst various claimants. The Court’s role goes no further than making adequate provision for the proper maintenance and support of an applicant.”[2]
[2]paragraphs [17]-[21]. Footnotes excluded.
68 Milica is now sixty-five years of age. She is in receipt of social security benefits. She is living in a small flat with Natali. Apart from Natali’s income, she has no other source of financial support. I think it is unlikely that she can pursue gainful employment. I am not persuaded that she is a person in poor health, because the medical evidence does not permit me to reach any conclusion in that respect, but it is clear that she will face the expected interference with her health in general functioning as she grows older.
69 There is sufficient in Stan’s estate for Milica to purchase a modest dwelling and have something for contingencies.
70 Milica submits that adequate provision for her maintenance support would be achieved by the disposition of $550,000. As McMillan J observed, a claim such as this is not to provide for a fair distribution or to achieve equality between herself and the defendant. In the circumstances, I think $550,000 achieves the purpose of providing Milica with adequate provision for her maintenance and support, and meets the apparent financial needs of the defendant by leaving him with a sum, albeit a small sum, for contingencies affecting him. It must be remembered, of course, that the defendant is the owner of 49 King Edward Avenue, which is unencumbered, which is a significant asset upon which he can call.
Orders
71 I order that pursuant to s91 of the Administration and Probate Act 1958, provision be made for Milica out of the estate of the deceased by payment to her of a sum of $550,000.
72 I will hear the parties on what other orders should be made.
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