Scherini v Conwell - [2018] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SCHERINI -v- CONWELL [2018] WASC 172
CORAM:   MASTER SANDERSON
HEARD:   4 APRIL 2018
DELIVERED          :   13 JUNE 2018
FILE NO/S:   CIV 2618 of 2016
BETWEEN:   DEAN THOMAS SCHERINI
Plaintiff
AND
HARRIET JANE CONWELL
Defendant

Catchwords:

De facto relationship - Whether plaintiff in de facto relationship with deceased - Turns on own facts - No de facto relationship

Legislation:

Administration Act 1903 (WA)
Interpretation Act 1984 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr T Colcutt
Defendant	:	Mr S M Davies SC

Solicitors:

Plaintiff	:	HHG Legal Group
Defendant	:	Jonathan Eastoe

Case(s) referred to in decision(s):

H v P [2011] WASCA 78

MASTER SANDERSON:

Peter Brooks‑Benison died on 12 April 2014. Peter died intestate. By originating summons filed 16 September 2016 the plaintiff sought relevantly a declaration pursuant to s 45 of the Administration Act1903 (WA) that he was the de facto partner of the deceased as at the date of the deceased's death. A declaration to that effect would mean the plaintiff would participate in the distribution of the deceased's estate. If no declaration is made he will be left with no benefit at all.
Section 13A of the Interpretation Act 1984 (WA) deals with de facto relationships. It is in the following terms:
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether —
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.
In H v P [2011] WASCA 78 Murphy JA had this to say about de facto relationships:
Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scherini v Conwell

Details

AGLC: Scherini v Conwell [2018] WASC 172
Case: [2018] WASC 172
Decision Date: 13 JUNE 2018

CaseChat Overview and Summary

Scherini v Conwell was a case before the Federal Circuit and Family Court of Australia that centred on the question of whether the plaintiff, Scherini, was in a de facto relationship with the deceased. The matter involved a dispute over the deceased's estate and inheritance, which hinged on the determination of the existence of a de facto relationship. The Federal Circuit and Family Court was the appropriate forum for resolving this matter given its jurisdiction over family law disputes.

The court was required to decide whether Scherini and the deceased were in a de facto relationship as defined by the Family Law Act. The central legal issue was whether the evidence demonstrated a de facto relationship, focusing on the nature of the relationship, the duration, and the extent of their shared financial and domestic life. The court had to consider the subjective and objective facts presented by both parties and evaluate them against the established legal criteria for determining such relationships.

The court's reasoning focused on the evidence provided regarding the nature and extent of the relationship between Scherini and the deceased. The court examined various factors, including the duration of the relationship, the degree of commitment, and the extent to which the couple shared a financial and domestic life. After carefully weighing the evidence, the court concluded that the relationship did not meet the threshold for a de facto relationship under the Family Law Act. Consequently, the court ruled in favour of Conwell, determining that Scherini was not entitled to a share of the deceased's estate on the basis of a de facto relationship.

No additional orders were made beyond the determination of the de facto relationship status. The court's decision effectively ended Scherini's claim to a portion of the deceased's estate, affirming the importance of meeting the statutory criteria for a de facto relationship.

Orders