S, CM v M, Ss

Case [2019] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

S, CM v M, SS & ORS

[2019] SASCFC 20

Judgment of The Full Court

(The Honourable Justice Stanley, The Honourable Justice Bampton and The Honourable Justice Parker)

4 March 2019

SUCCESSION - FAMILY PROVISION - ELIGIBLE APPLICANTS - SPOUSE OR PARTNER

Appellant appeals a Master’s dismissal of her application seeking a declaration as to domestic partnership pursuant to s 11B(2) of the Family Relationships Act 1975 (SA) (“the FRA”) — where appellant not entitled to make a claim under the Inheritance (Family Provision) Act 1972 (SA) for maintenance out of the testator’s estate unless she was the domestic partner of the testator as at the time of his death — where Master did not accept evidence of appellant or her father —whether Master erred in finding appellant was not in a close personal relationship with testator for the purposes of s 11B(2)(b)(i) of the FRA.

Held, per Bampton J (Stanley and Parker JJ agreeing):

1. The Master’s rejection of the appellant’s evidence and her father’s evidence was clearly open to her.

2. There was no evidence upon which the Master could make the findings sought and be satisfied that the appellant and the testator were in a close personal relationship for the purposes of s 11B(2)(i) of the FRA.

3. Appeal dismissed.

Inheritance (Family Provision) Act 1972 (SA) s 4, s 6(ba); Family Relationships Act 1975 (SA) s 11A, s 11B; Domestic Partners Property Act 1996 (SA); Firearms Act 2015 (SA); Firearms Regulations 2017 (SA); Motor Vehicles Act 1959 (SA) s 136, referred to.
Piras v Egan [2008] NSWCA 59; Singer v Berghouse (1994) 181 CLR 201; Taddeo v Taddeo (2010) 269 LSJS 309; Hayes v Marquis [2008] NSWCA 10; Bezjak v Wyatt [2018] NSWSC 199; Burgess v Moss (2010) 43 Fam LR 260; Re Pamplin; Irwin v Pamplin [2017] NSWSC 1477; Vaughan v Hoskovich [2010] NSWSC 706; House v The King (1935) 55 CLR 499; Golosky v Golosky [1993] NSWCA 111; Vigolo v Bostin (2005) 221 CLR 191; Fox v Percy (2003) 214 CLR 118, applied.
KQ v HAE [2007] 2 Qd R 32; Sadiq v NSW Trustee and Guardian [2015] NSWSC 716; Amprimo v Wynn [2015] NSWCA 286; Daniel v Van Zwol (2015) 294 LSJS 305; Norbis v Norbis (1986) 161 CLR 513, considered.

S, CM v M, SS & ORS
[2019] SASCFC 20

Full Court:   Stanley, Bampton and Parker JJ

  1. STANLEY J:         I would dismiss the appeal.  I agree with the reasons of Bampton J.

  2. BAMPTON J:      C and G went on their first date on 8 January 2014.  They spent the following 18 months in each other’s company until G’s death on 23 July 2015.  They attended marriage preparation counselling and had planned to marry at their parish church.  G, who suffered oesophageal cancer, died aged 63 and did not make any provision for C in his will dated 30 January…

Continue reading S, CM v M, Ss

Sign in free to access the full text

Details
AGLC
S, CM v M, Ss [2019] SASCFC 20
Case
[2019] SASCFC 20
Decision Date

CaseChat Overview and Summary

The appellant, C, appealed a Master's decision that dismissed her application for a declaration of domestic partnership under section 11B(2) of the *Family Relationships Act 1975* (SA). This declaration was necessary for C to make a claim for maintenance from the estate of the testator, G, under the *Inheritance (Family Provision) Act 1972* (SA). The central issue was whether C was the domestic partner of G at the time of his death.

The legal issue before the Full Court was whether the Master erred in finding that C was not in a close personal relationship with G for the purposes of section 11B(2)(b)(i) of the *Family Relationships Act 1975* (SA). The Court was required to consider whether the Master's factual findings, particularly regarding the reliability of C's evidence, were demonstrably wrong, glaringly improbable, or contrary to compelling inferences, given the limited independent corroboration of C's claims.

The Court applied the principles governing appellate review of factual findings, which permit interference only in limited circumstances. The Master had rejected C's evidence as unreliable unless independently corroborated. While the Master correctly noted that corroboration was not a legal requirement, the Court found that the independent evidence supporting C's assertion of living in a close personal relationship with G was limited. Evidence from a third party suggested G considered C a "nice lady" and that their relationship was progressing "slowly," which the Court considered inconsistent with C's claim of commencing cohabitation soon after their first date. The Court concluded that the evidence supported findings that C and G were in a romantic relationship and that C stayed at G's home at times, but it did not support a finding that they were living in a close personal relationship as required by the Act.

Consequently, the Court held that the Master's finding that C and G were not living in a close personal relationship at the time of G's death was open to her on the evidence. The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On appeal complaint is made about factual findings the Master made or did not make in determining the first stage. This Court may not interfere with the Master’s findings of fact unless those findings are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.[22][22] Fox v Percy (2003) 214 CLR 118.The evidence In 1982 at the age of 16, C was involved in a motor vehicle accident which killed her mother. Her stepfather and brother were also in the vehicle. C and her brother sustained injuries which have left them with residual disabilities such that they each receive the disability support pension. In submissions, the Master was informed that C has partial frontal lobe brain damage, affecting her short-term memory and motor skills, such that she cannot manage a mobile telephone or a bank card. C is able to drive a car and is a recreational shooter holding a firearms licence. Clearly, she must suffer a permanent medical condition which meets the criteria for the disability support pension. No medical evidence was adduced detailing the disabilities C suffers. C and her brother were adopted by their stepfather, F, following the death of their mother. C has a close relationship with F and refers to him as her father. C and F are named the registered proprietors as the administrators of C’s mother’s estate on the Certificate of Title for the property located at Beaumont (“the Beaumont residence”). C, F and C’s brother were living in the Beaumont residence at time of C’s first date with G in January 2014. C gave evidence that she and G commenced “living together in a close personal relationship” very soon after their first date in January 2014 when she moved into G’s home at Glynde (“the Glynde residence”). C moved some of her clothes, “not all of my clothes”, some art, and “over time furniture, nothing major” to the Glynde residence. C said that she left her set of keys to the Beaumont residence with her father and brother in January 2014. In cross-examination, she said she gave back the keys, “because they were no longer required and because my father and brother also live in the premises. They have a share in the property”. C said that she “had access to keys” to the Glynde residence, but did not have a set of her own. C would return to the Beaumont residence to see her father and brother:I’d either change clothes, pick up different items of clothing. I’d check that they hadn’t killed each other and the house was still standing. I’d pick up my bank book, do my banking, take my bank book back home. I understand C’s reference to home in this context to be the Beaumont residence. C and G spent their time together going to the movies, church, gardening, and shopping. C said that they shared a bed at the Glynde residence. She described how G, who suffered paroxysmal dystonic choreoathetosis, told her that when he was having a fit during the night, she was to ensure that his head was on a pillow, to take the covers off, to hold his hand and talk to him.

Decision

Reasons for decision

The Master rejected C and F’s evidence as unreliable unless independently corroborated. The Master clearly directed herself that corroboration was no longer a legal requirement. There was simply no support for C’s evidence other than the matters Fr H referred to that enabled the Master to make findings in C’s favour. I stated earlier in these reasons that it can be inferred that G did not notify Centrelink that he was living with C. There is no evidence that he told anyone that C was living with him. The most that can be inferred from Fr H’s evidence is that in 2015 G “was clearly living” in the Glynde residence and that G and C “made obvious that they were sleeping in the same bed”. Mr R gave evidence that G had said in early 2014 that C was a “nice lady” and “things were going very slowly” and then in early 2015 that they were “good friends” and things were moving “slowly”. I suggest this is not the language of person who commenced living with his partner very soon after their first date, as C asserted, or the language of a person living with his partner. Conclusion Having analysed the whole of the evidence, it was well open to the Master to find C and F’s evidence not reliable or credible. The independent evidence that did support C’s evidence was limited and allowed the Master to make the findings she did. There was no evidence upon which the Master could make the findings sought by C and be satisfied that she and G were in a close personal relationship such that s 11B(2)(i) was met. The evidence supports a finding that C did not move into the Glynde residence as she described. It also supports a finding that she and G were in a romantic relationship and intended to marry and that she stayed at G’s home at Glynde at times over the course of the 18-month relationship, but does not support a finding that she was living in a close personal relationship with him. The ground of appeal regarding s 11B(2)(b)(i) is not made out. Having determined that the finding that C and G were not living in a close personal relationship as at the date of G’s death was open to the Master, it is not necessary to consider the ground of appeal regarding s 11B(2)(b)(ii). I would dismiss the appeal. PARKER J: I agree that the appeal should be dismissed for the reasons stated by Bampton J.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.