Scherini v Conwell
[2018] WASC 172
•13 JUNE 2018
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 dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives. [58]
Before leaving the definition found in the Interpretation Act at least two points can be made. The first is the section appears to place great emphasis on the parties residing together. In sub‑section (1) there is reference to two persons 'who live together'. In sub‑section (2)(b) there is a reference to two persons who have 'resided' together. In sub‑section (2)(c) there is reference to 'the nature and extent' of the common residence. All of that suggests careful attention needs to be paid to the living arrangements of the parties. Second, there is no reference to anything like natural love and affection. The closest the section comes is sub‑section (2)(i). Perhaps the legislature thought these matters were best left to the poet rather than the parliamentary draftsman.
The plaintiff's case was founded on his affidavit sworn 16 September 2016. It is a lengthy document running to 53 pages and 557 paragraphs. In fact the picture that emerges is relatively straightforward, even simple. The plaintiff met Peter in 1996. At the time the plaintiff was 28 years old. The plaintiff now knows that Peter was in his 50's at the time but he would never divulge his age. If asked he would volunteer that he was 'between 40 and death'.
Although the plaintiff says it was not a case of love at first sight within two months the relationship had developed into a caring and committed relationship. Peter had a unit in Cleaver Street, West Perth. This unit figured prominently in the relationship between the plaintiff and Peter. Soon after the relationship commenced the plaintiff was spending virtually every weekend at the unit. The plaintiff's evidence, which I accept, is to the effect that he and Peter quickly developed a close and affectionate relationship which persisted until the death of the deceased.
During the week the plaintiff lived mainly with his mother. He went to the unit on the weekends and for the occasional night or nights during the week. Whenever he went there Peter was present. The plaintiff never had his own set of keys. He did leave his clothes, shoes or belongings such as toiletries and the like at the unit. The plaintiff never did any shopping nor did he clean the unit. Other than the plaintiff and a friend of Peter's, Antoinette O'Kane (whose evidence I will deal with below) very few people visited the unit. The plaintiff says he and Peter would meet up with friends and family outside the unit. That was in keeping with Peter's very 'private' personality.
The plaintiff and Peter had an active sex life which persisted up until the date of death of the deceased.
The plaintiff and Peter never intermingled their finances. Peter never asked the plaintiff to pay for anything and when they went out together Peter always paid. This also appears to have been the case when Peter and the plaintiff went out in a group - Peter always paid for everyone. They never had a joint bank account and they never owned any property together. Peter had purchased the unit before he met the plaintiff. The only exception to this complete financial independence appears to have been a limited contribution Peter made to the plaintiff buying a motor vehicle. The extent of this contribution is not clear from the evidence but it did not amount to anything of real significance.
At one point the plaintiff did suggest to Peter that the two of them buy a house together. This suggestion was made by the plaintiff to Peter when Peter received an inheritance from his mother's estate. Peter's response was that he was happy with the way things were and was not interested in buying a new house. This determination on Peter's part to maintain an independence from the plaintiff is a significant factor in determining this application.
It is clear from the plaintiff's evidence, and I accept, that he and Peter had a close, warm and loving relationship. They talked daily, they regularly went out together and they shared their experiences of life as any loving couple would do. The detail in the plaintiff's affidavit makes it clear he had intimate knowledge of Peter's life experience, his likes and dislikes and his motivations. It can clearly be said there were public aspects to the relationship and neither made any attempt to disguise from anyone their feelings for one another. In fact, Peter developed a warm and loving relationship with the plaintiff's mother.
There was never any question of the couple raising children together. Neither was interested. Nor did they have any pets together.
The plaintiff was cross‑examined on his affidavit and it became apparent there were some inaccuracies in that affidavit. At par 382 ‑ 402, the plaintiff details the circumstances in which he said he discovered Peter's death. Essentially he says he worked a night shift from 9.00 pm on Friday 11 April 2014 to 7.30 am Saturday 12 April 2014. He says on finishing his shift he collected some clothes from his mother's house and went to the unit. Peter did not answer the door and after contacting a number of hospitals, the plaintiff went back to his mother's place. He says soon after he returned home, Ms O'Kane knocked on his door and told him Peter had passed away. He says that same day Ms O'Kane, his mother and the plaintiff went to the unit to go through Peter's effects. At the unit he met the defendant who is the niece of the deceased. The plaintiff also says on that same day he and the defendant consulted lawyers.
It is obvious on the face of the affidavit that this account of events cannot be right. The timeframe makes no sense. Apart from anything else, it suggests the plaintiff and the defendant consulted solicitors on Saturday or perhaps Sunday. That is inherently unlikely.
In fact when it was put to the plaintiff in cross‑examination, the evidence in his affidavit was incorrect, he readily agreed. In fact after finishing work he had gone home, slept for a period, gone to the apartment and when he was unable to raise Peter, he went home. He went back to the apartment later that day and when he was still unable to raise Peter, he once again went home. It was not until the next day Ms O'Kane informed him of Peter's death. It was some days later when he met the defendant at the unit. They subsequently consulted solicitors.
Nothing really turns on these inaccuracies in the plaintiff's evidence. Watching him during cross‑examination, I was satisfied the plaintiff was an entirely honest witness who was utterly without guile. In the end, this was not a case where anything turned on credibility. It was simply a matter of determining on the objective evidence whether or not the plaintiff was Peter's de facto partner.
Having said that, there was one matter of omission which requires comment. Between May of 2005 and August of 2009, the plaintiff lived in Hopetoun. He moved to Hopetoun to assist a friend Harry Bowditch to run a restaurant. During that time, he appears to have spoken to Peter regularly and to have come up to Perth to stay with Peter at the unit every other weekend. While this separation was significant and should have been included in the affidavit, I am not satisfied its omission was sinister. In any event, during cross‑examination, the plaintiff readily admitted he spent five years down south and was physically separated from Peter. But he maintained, and I accept, that there was no diminution in feeling between the couple.
It is also of significance to note that there is nothing in the evidence to suggest that either the plaintiff or Peter had an intimate or sexual relationship with any other person during the entire period of their relationship. It is true that from time to time the plaintiff went to Bali with friends and without Peter. Peter told the plaintiff that during his early years he had done enough travelling and he was no longer interested in going anywhere. But there is no suggestion that during these holidays or at any other time Peter and the plaintiff were anything other than faithful to one another.
In support of this application, the plaintiff relied on a number of affidavits perhaps most importantly an affidavit of Ms O'Kane sworn 14 December 2016. Ms O'Kane says she met Peter in Sydney in May of 1985. At the time Peter was involved in running a business known as the 'Paddington Deli' in Oxford Street, Paddington, New South Wales. The two gradually became friends and Ms O'Kane says and I accept that Peter told her all about his life and intimate relationships. In 1989 Peter moved to Perth with a partner. In September of 1989, Ms O'Kane moved from Sydney to Perth. She appears to have done so solely for the purpose of being near Peter. Clearly they had a truly remarkable friendship.
There is no doubt that Ms O'Kane knew the plaintiff and Peter better than anyone else. She appears to have been privy to Peter's innermost thoughts. When cross‑examined she struck me as a highly intelligent, intuitive woman in tune with the world and certainly not easily fooled. Her evidence so far as it consists of observations can be readily accepted. But her views as to whether or not the plaintiff and Peter were in a de facto relationship is not relevant to the determination of this application. That is a matter for the court.
The same can be said of two of the other witnesses who filed evidence in support of the plaintiff's application. I have already mentioned Mr Bowditch. As to his evidence I need say nothing more than it is consistent with the plaintiff's evidence. He observed Peter and the plaintiff to be a close loving couple and he confirmed the domestic arrangements. The evidence of the plaintiff's mother Judith Anne Scherini was to a similar effect. Clearly, Peter had a very close relationship with her and she had a great deal of affection for him. Peter was included in many of the family activities arranged by Mrs Scherini. Mrs Scherini was aware of the intimate nature of the relationship between the plaintiff and Peter and she clearly gained much satisfaction from seeing her son in a stable long‑term relationship.
Turning then to the non‑exclusive criteria set out in s 13A(2) of the Interpretation Act, this was clearly a long‑term relationship. They were together and faithful to one another for 18 years. They had a sexual relationship which was ongoing, they clearly demonstrated affection for one another in public and friends and family regarded Peter and the plaintiff as a couple. I find as a fact that there was between the two a real mutual love and affection.
Against all of that, they never resided together in the true sense. The plaintiff had regular weekend sleep overs at Peter's unit. When the opportunity did arise for the two to purchase a house together Peter specifically declined to take that step. The unit was not big enough to accommodate Peter and the plaintiff as a couple and the thought of living together on a day to day basis was never entertained. Consequently, they maintained separate if intertwined lives.
They were both completely financially independent and there was no significant shared financial arrangements. They own no property together and of course they did not have any children.
There does appear to have been a commitment to a shared life. As I have indicated they were faithful to one another over many years. Neither looked elsewhere for support. Certainly they had their own circle of friends with the plaintiff perhaps having a wider circle than Peter. They had many shared friends. None of those closely involved with the couple suggest there was any tension in the relationship or that they were not happy together. There is nothing to suggest they would not have gone on living as they had done for 18 years well into the future.
In resolving this issue, it is a question of degree and weighing in the balance those factors in favour of finding there was a de facto relationship and the counter‑veiling factors. In my view there are two matters which in this case tip the balance against there being a de facto relationship. First, the plaintiff and Peter did not actually reside together. In fact Peter appears to have made it plain on any number of occasions to anyone who would listen, he was content living by himself and did not want to enter into a relationship which could be defined as 'marriage like'. Given the emphasis s 13A places on residing together, this is a significant factor. Ultimately, I am not satisfied the nature and extent of the common residence was consistent with a de facto relationship.
Second, there is the financial independence of Peter and the plaintiff. There are of course many relationships where the parties decide to keep their financial affairs separate. But here there was no inter‑connection. They did not shop together or take care of one another's needs. There is no aspect of the financial arrangements between the plaintiff and Peter that suggests the coming together of their respective positions consistent with a marriage like relationship.
For these reasons I am satisfied that the plaintiff was not the de facto partner of Peter. I will make orders accordingly.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
ASSOCIATE TO MASTER SANDERSON14 JUNE 2018
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