Sun v Chapman

[2022] NSWCA 132

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sun v Chapman [2022] NSWCA 132

Hearing dates:

11 March 2022; written submissions 1, 8 and 14 April 2022

Decision date:

26 July 2022

Before:

Leeming JA at [1];
White JA at [14];
Brereton JA at [187]

Decision:

(1) Grant leave to the appellant to rely upon further evidence as set out in the affidavit of Mitchell Broom dated 19 January 2022.

(2) Grant leave to the respondent to rely upon further evidence as set out in the affidavit of Linley Li dated 22 February 2022.

(3) Grant leave to the appellant to rely upon the affidavits of Mitchell Broom sworn 9 March 2022 and 10 March 2022.

(4) The costs of the notices of motion and the application to adduce the evidence of Mitchell Broom of 9 and 10 March 2022 be costs in the appeal.

(5) Appeal allowed.

(6) Cross-appeal dismissed.

(7) Set aside the orders of the primary judge of 4 August and 3 September 2021.

(8) In lieu thereof:

(a) declare that at the time of the death of the late Robin Richard Chapman (“the deceased”), who died on 2 February 2019, the appellant was living with the deceased in a de facto relationship;

(b) order that provision be made out of the deceased’s estate in favour of the appellant in the sum of $555,000.

(9) Order that the burden of the order for provision referred to in order (8)(b) be borne by the beneficiaries of the deceased’s estate set out in the annexure to the reasons of the primary judge according to the proportions in which they are entitled to share in the proceeds of sale of the Seaforth property formerly owned by the deceased.

(10) Order that the respondent pay the appellant’s costs of the proceedings below and of the appeal and cross-appeal on the ordinary basis and be indemnified out of the deceased’s estate in respect of that liability.

(11) Order that the appellant promptly notify the Department of Veterans’ Affairs of the orders and reasons of this court and apply for the reinstatement of the war widow pension and gold card formerly provided to her.

(12) Order that the respondent be restrained from distributing the estate unless and until the respondent is advised by the Department of Veterans’ Affairs, or the appellant, or the appellant’s solicitor, that the appellant’s pension and gold card have been reinstated, provided that this order does not prevent the respondent from:

(a) paying the appellant the legacy the subject of the order for provision in order (8)(b) or costs payable to the appellant pursuant to order (10), or administration expenses incurred by the respondent including his costs and disbursements of these proceedings;

(b) distributing the estate to the beneficiaries provided at least $400,000 is retained; or

(c) otherwise distributing the estate with the written consent of the appellant or her solicitor.

(13)   Liberty to either party to apply to a single Judge of Appeal on reasonable notice in relation to order (12).

Catchwords:

SUCCESSION – family provision – claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – whether eligible person – whether in a de facto relationship at time of death – whether there were factors warranting the making of the application for family provision

CIVIL PROCEDURE – appeals – standard of appellate review regarding a decision as to whether a criterion for a claimant to be an eligible person for the purposes of s 57(1) of the Succession Act 2006 (NSW) has been met

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law, s 20

Births, Deaths and Marriages Registration Act 1995 (NSW)

Family Provision Act 1982 (NSW)

Interpretation Act 1987 (NSW), s 21C

Relationships Register Act 2010 (NSW)

Succession Act 2006 (NSW), ss 3, 57, 59, 60

Trade Practices Act 1974 (Cth), s 51AA

Uniform Civil Procedure Rules, r 51.53

Cases Cited:

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93

Antonovic v Volker (1986) 7 NSWLR 151

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18

Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256

Clarence & Crisp [2016] FamCAFC 157

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14

DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63

Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613

Falk & Falk (1977) FLC 90-247

Re Fulop Deceased(1987) 8 NSWLR 679

H v P [2011] WASC 78

Hibberson v George (1989) 12 Fam LR 725

House v The King (1936) 55 CLR 499; [1936] HCA 40

Joyce v Anderson [2020] WASCA 48

Lodin v Lodin [2017] NSWCA 327

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67; [2011] FCAFC 130

Page v Hull-Moody [2020] NSWSC 411

Page v Page [2017] NSWCA 141

Pavey & Pavey (1976) FLC 90-051

Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 90 ALJR 679

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Steinmetz v Shannon [2019] NSWCA 114

Sun v Chapman (No 2) [2021] NSWSC 1231

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2022] HCA 11; 96 ALJR 337

Todd & Todd (No 2) (1976) FLC 90-008

Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Yesilhat v Calokerinos [2021] NSWCA 110

Category:

Principal judgment

Parties:

Wei (Rose) Sun (Appellant/Cross Respondent)
Michael Alan Chapman (Respondent/Cross Appellant)

Representation:

Counsel:
A Sullivan QC with P Livingstone (Appellant)
M Bridger (Respondent)

Solicitors:
Wyatts Lawyers & Advisors (Appellant)
Bainbridge Legal (Respondent)

File Number(s):

2021/235929

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

[2021] NSWSC 955

Date of Decision:

4 August 2021

Before:

Emmett AJA

File Number(s):

2020/12509

HEADNOTE

[This headnote is not to be read as part of the judgment]

Ms Wei (Rose) Sun (the appellant and cross-respondent) and the late Robin Alan Richard Chapman (the deceased) commenced living together in 1998. Ms Sun deposed that she and the deceased met at a caravan park and after exchanging correspondence he invited her to come to Sydney to look after him. The Executor deposed that the deceased told him that Ms Sun responded to a newspaper advertisement seeking someone to provide domestic services in exchange for free accommodation.

Between 1998 and the deceased’s death on 2 February 2019 Ms Sun and the deceased lived together. Ms Sun cooked and cleaned for the deceased. Ms Sun deposed that they had an intimate relationship for about four or five years from about 1999, and witnesses reported seeing Ms Sun and the deceased holding hands in public. The deceased declared in a statutory declaration in 2003 that he and Ms Sun were living together in a de facto relationship. However, there was evidence of considerable antagonism between Ms Sun and the deceased during the last five years of the deceased’s life.

The deceased’s last will was made in 1996. Ms Sun receives no benefit under that will. Mr Michael Chapman (the respondent and cross-appellant) is the Executor of the deceased’s estate. Ms Sun applied for an order under s 59 of the Succession Act 2006 (NSW) that provision be made for her maintenance and advancement in life out of the estate of the deceased.

Ms Sun’s application for a family provision order was dismissed on 4 August 2021 by Emmett AJA (Sun v Chapman [2021] NSWSC 955). Ms Sun appeals the primary judge’s decision.

In a second judgment, delivered on 30 September 2021 (Sun v Chapman (No. 2) [2021] NSWSC 1231), the primary judge declined to order costs against Ms Sun. The respondent cross-appeals from that decision.

The primary issues before this court were:

In the appeal

(i) whether the de facto relationship between Ms Sun and the deceased had ended before the deceased’s death,

(ii) the nature of appellate review of the primary judge’s finding that the deceased and Ms Sun were not in a de facto relationship at the time of his death,

(iii) whether the Court ought to grant leave to the parties in relation to their applications to adduce further evidence on appeal,

(iv) whether, even if the de facto relationship ended before the deceased’s death, the primary judge ought to have held that there were factors warranting the making of the application for a family provision in favour of Ms Sun as a person with whom the deceased was living in a close personal relationship at the time of his death, and

(v) if there were factors warranting the making of the application for a family provision in favour of Ms Sun, what family provision order ought to be made,

In the cross-appeal

(vi) whether the primary judge erred in refusing to make a costs order against Ms Sun.

Held, allowing the appeal, and dismissing the cross-appeal:

(i) per White JA (Leeming JA and Brereton JA agreeing)

The evidence did not establish that the de facto relationship between Ms Sun and the deceased had ended before his death: at [1], [20], [112], [188], [192].

H v P [2011] WASC 78; Clarence & Crisp [2016] FamCAFC 157; Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613; Hibberson v George (1989) 12 Fam LR 725; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40; Page v Page [2017] NSWCA 141; Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17; Pavey & Pavey (1976) FLC ¶90-051; Falk & Falk (1977) FLC ¶90-247: cited.

Todd & Todd (No 2) (1976) FLC ¶90-008: discussed.

(ii) per White JA

Whatever standard for appellate review is applied, the primary judge erred in not finding that the deceased and Ms Sun were in a de facto relationship at the time of his death: at [117].

House v The King (1936) 55 CLR 499; Yesilhat v Calokerinos [2021] NSWCA 110; Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9: discussed.

(ii) per Leeming JA and Brereton JA

It is insufficient, in an appeal raising a factual challenge as to whether a criterion for a claimant to be an eligible person for the purposes of s 57(1) of the Succession Act has been met, for a respondent to submit that the issue was an evaluative one, and is therefore to be accorded the deference given to a discretionary decision which admitted of a range of lawfully correct outcomes: at [13], [189].

Yesilhat v Calokerinos [2021] NSWCA 110; House v The King (1936) 55 CLR 499; Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9: discussed.

Antonovic v Volker (1986) 7 NSWLR 151; Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256; Nguyen v Taylor (1992) 27 NSWLR 48; Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613: cited.

(iii) per White JA (Leeming JA and Brereton JA agreeing)

The Court grants leave to the appellant and respondent in relation to their applications to rely upon further evidence in the appeal: at [1], [139], [195].

(iv) per White JA (Leeming JA and Brereton JA agreeing)

Even if the de facto relationship ended before the deceased’s death, the primary judge ought to have held that there were factors warranting the making of the application for a family provision in favour of Ms Sun as a person with whom the deceased was living in a close personal relationship at the time of his death: at [1], [20], [120], [188], [193].

Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679; Lodin v Lodin [2017] NSWCA 327: cited.

(v) per White JA (Leeming JA and Brereton JA agreeing)

The appropriate family provision order is the discharge of Ms Sun’s mortgage debt, on the assumption that Ms Sun’s pension will be reinstated by the Department of Veterans’ Affairs: at [1], [181], [186], [194], [195].

Page v Hull-Moody [2020] NSWSC 411; Steinmetz v Shannon [2019] NSWCA 114: cited.

(vi) per White JA (Leeming JA and Brereton JA agreeing)

The primary judge did not err in refusing to make a costs order against Ms Sun: [1], [186], [188].

Judgment

1. LEEMING JA: I have had the advantage of reading the judgments of White JA and Brereton JA in draft. I agree with the orders proposed by White JA, and with each of their Honours’ reasons, save that in one respect I would go slightly further.

2. The threshold issue posed by the first ground of this appeal is the nature of appellate review of the trial judge’s finding that the deceased and Ms Sun were not at the time of his death in a de facto relationship. Ms Bridger, who appeared for the respondent, Mr Chapman, maintained that that finding, although not in the exercise of a discretion, was nonetheless an evaluative judgment to which constraints in or analogous to House v The King applied. This Court heard argument from both sides on the point, including references to decisions of this Court in which divergent views have been expressed (although it is far from clear that what was said in Yesilhat v Calokerinos [2021] NSWCA 110 at [97], on which Mr Chapman relied, was the subject of submissions or that any reference had been given to the relevant passages in Page v Page [2017] NSWCA 141 or Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17). While I agree with White JA that whatever be the standard of appellate review there was appellable error on the part of the primary judge in not finding that the deceased and Ms Sun were in a de facto relationship, I think that this is an appropriate case to resolve an issue which was at the forefront of the respondent’s oral submissions.

3. The question whether there was at the time of the deceased’s death a de facto relationship is one that may be more contestable than some of the other categories of eligible persons defined in s 57(1) of the Succession Act 2006 (NSW). However, contestable factual questions may in principle arise even if an applicant claims to be, say, a child or a former spouse. A person may be a child without a birth certificate and there may be competing evidence (including expert evidence) as well as testimonial evidence on this issue. A former spouse may claim to have been married in an informal ceremony in another country which is recognised under Australian law. In short, the factual conclusion that a person is a child or a former spouse may be contestable in the same way as the questions posed under s 57(1)(b), (e) and (f). But all the criteria for eligibility are binary, in the sense that they admit of only one correct answer.

4. True it is, as Ms Bridger submitted, that different courts might reach different conclusions, even on the same evidence. So too might different members of the same appellate court. But that is to say no more than that appellate courts sometimes disagree on factual issues turning on the same evidence. The litigation in this Court and the High Court in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263 and [2022] HCA 11; 96 ALJR 337 is an example: the eight appellate judges who considered the same record divided equally as to whether the plaintiff had established a breach of duty by the defendant. Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 itself was a 3:2 decision of the High Court, dividing on whether there was breach of duty by the defendant driver. That such divergences are unremarkable was noted in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43]. Appellate litigation self-selects contestable cases.

5. Gageler J demonstrated that characterising a finding as “evaluative” was not sufficient to warrant departure from the correctness standard of appellate review in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [46], referring to Warren v Coombes as well as Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18. The latter is squarely on point. In issue was whether the Full Court of the Federal Court had erred in overturning a finding of contravention at first instance of a self-evidently “evaluative” statutory norm, namely, that imposed by s 51AA of the Trade Practices Act 1974 (Cth) (now, Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law, s 20) prohibiting conduct in trade or commerce which is “unconscionable within the meaning of the unwritten law”. A submission comparable to that made by Mr Chapman was made to the High Court. It was said that the trial judge “exercised discretionary judgment” and that “[i]t must appear that error has been made in exercising the discretion or a conclusion reached that is so unreasonable or plainly unjust that it can be inferred that the judge failed to exercise the discretion properly”: 214 CLR at 53. Callinan J rejected that submission in terms at [167]. Kirby J although dissenting agreed with Callinan J at [81]. The joint judgment implicitly rejected the submission at [37], for the dismissal of the appeal turned on accepting the submission that the facts as found fell short of circumstances falling within the doctrine stated in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14.

6. Gageler J concluded in SZVFW at [46]:

“Like a common law duty of care, a statutory prohibition on conduct that is unconscionable posits a standard of conduct which, on proven facts, a person obliged to meet that standard either has met or has not.”

7. Whether Ms Sun enjoyed a de facto relationship with the deceased is in the same category as whether a defendant has breached a duty to take reasonable care or has engaged in unconscionable conduct are. It is a conclusion, to which a deal of evidence is apt to contribute, some pointing in different directions, all of which needs to be assessed and evaluated, and as to different aspects of which the primary judge was or was not in a position of advantage over this Court.

8. In Page v Page [2017] NSWCA 141 at [35]-[41], I sought to explain why, as a matter of principle, review of a finding of dependency for the purposes of s 57(1)(e) of the Succession Act did not engage the principles in House v The King, and why Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 did not stand in the way of that conclusion. That reasoning, with which Basten JA agreed, was applied in Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 by all members of the Court (including Sackville AJA, the third member of the Court in Page v Page): at [1], [53]-[55], [84], [140]. It is a conclusion now buttressed by the analysis in SZVFW where Gageler J concluded at [48]-[49]:

“The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge’s conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion. Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction.

The line is not drawn by reference to whether the primary judge’s process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.”

9. When under the Family Provision Act 1982 (NSW), considered in Singer v Berghouse, Parliament imposed a precondition to an order for provision that the court first be satisfied that the provision made to the eligible person was inadequate for his or her proper maintenance, education and advancement in life, it was prescribing a standard which tolerates a range of outcomes. Still more clearly, when the Succession Act confers a broad discretion to “make such order for provision out of the estate of the deceased person as the Court thinks ought to be made”, it is plain that more than one correct exercise of discretion is authorised. Such findings are reviewed quite differently, with the deferential standard applicable to the appellate review of judicial discretion: Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 at [57] (where Gleeson JA, writing for this Court, applied the principle formulated in SZVFW in the passages reproduced above). But when Parliament insists that an eligible person be “living in a de facto relationship at the time of the deceased person’s death” as a precondition to the making of a family provision order, Parliament is not specifying a precondition which tolerates a range of outcomes but rather is prescribing a legal criterion which demands a unique outcome.

9. Sackville AJA also drew attention in Spata v Tumino at [141], by reference to what had been said in DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [88], to the difficulty and danger in using simple labels as substitutes for describing the nuances of appellate review. The passage endorsed by Sackville AJA included the following:

“labels are apt to mislead in this context, most particularly the word ‘discretion’ and the phrase ‘House v The King review’ as an alternative to ‘Warren v Coombes review’ as the exhaustive universe of alternatives (which they are not).”

11. I respectfully agree. Further, the nuances within ordinary notions of appellate review explain why different answers may be reached by different appellate judges reviewing the same record and reading and hearing the same submissions. The point was well made by the Full Court of the Federal Court in Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67; [2011] FCAFC 130 at [33], which despite its familiarity warrants extensive quotation:

“[T]he task of this appellate Court is a complex one. It cannot be captured by brief ‘sound-bites’ such as ‘plainly or obviously wrong’ or ‘sufficiently clear difference of opinion’. It is an approach which requires consideration of several principles, not just one. This approach is best explained by Allsop J in Branir at [28]-[29]:

‘[...] First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission … The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge’s views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.

The degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge. Sometimes, where matters of impression and judgment are concerned, giving ‘full weight’ or ‘particular weight’ to the views of the trial judge might be seen to shade into a degree of tolerance for a divergence of views … However, as Hill J said in Commissioner of Taxation (Cth) v Chubb Australia Ltd (1995) 56 FCR 557 at 573 ‘giving full weight’ to the view appealed from should not be taken too far. The appeal court must come to the view that the trial judge was wrong to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.’”

12. To the same effect are judgments in the influential decision Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93 at [4]-[10], [43]-[54], [169] as well as in Joyce v Anderson [2020] WASCA 48 at [208] where it was noted that “the nature of the finding, and the reasoning by which it was made, affects what is required in order to demonstrate appellable error”. Many other examples might be given; I am making no attempt to be exhaustive. It may readily be seen how the familiar appellate process described above contains evaluative aspects, which may admit of different outcomes.

13. But the only point that matters for present purposes is that it is insufficient, in an appeal raising a factual challenge as to whether a criterion for a claimant to be an eligible person for the purposes of s 57(1) of the Succession Act has been met, for a respondent to submit that the issue was an evaluative one, and is therefore to be accorded the deference given to a discretionary decision which admitted of a range of lawfully correct outcomes. A stricter degree of appellate scrutiny will be applied.

14. WHITE JA: The appellant, Ms Wei (Rose) Sun, applied for an order under s 59 of the Succession Act 2006 (NSW) that provision be made for her maintenance and advancement in life out of the estate of the late Robin Alan Richard Chapman. He left an estate that primarily consisted of a house at Seaforth, which was sold by the Executor for $2,400,100, and other assets to the value of approximately $180,000.

15. Ms Sun sought an order for provision on the basis that she was an “eligible person” entitled to apply for a family provision order either because she was living with the deceased in a de facto relationship at the time of his death (Succession Act s 57(1)(b)) or, because she was a person with whom the deceased was living in a close personal relationship at the time of his death (s 57(1)(f)), and, if she were only an eligible person on the latter basis, that there were factors that warranted the making of the application (s 59(1)(b)).

16. The deceased’s last will was made in 1996. Ms Sun receives no benefit under that will. She contends that she is entitled to an order for provision from Mr Chapman’s estate because adequate provision for her proper maintenance or advancement in life has not been made (s 59(1)(c)).

17. Ms Sun’s application for a family provision order was dismissed on 4 August 2021 by Emmett AJA (Sun v Chapman [2021] NSWSC 955). The primary judge found that although she and the deceased had had a de facto relationship, that relationship had ended before the deceased’s death. His Honour found that they were in a close personal relationship within the meaning of s 57(1)(f) but there were not factors warranting the making of the application (s 59(1)(b)) (at [140]). Accordingly, his Honour dismissed the application for a family provision order. His Honour evidently considered that if Ms Sun were an eligible applicant and there were factors warranting the making of the application, no order for provision was required (at [143]).

18. In a second judgment delivered on 30 September 2021 (Sun v Chapman (No. 2) [2021] NSWSC 1231) the primary judge declined to order costs against Ms Sun. The respondent cross-appeals from that decision.

19. The respondent to the appeal, Mr Michael Chapman, is the Executor of Mr Chapman’s estate. He is one of the sons of the deceased and the principal beneficiary under the deceased’s last will. He does not dispute the primary judge’s finding that a de facto relationship had existed between Ms Sun and the deceased. Nor does he dispute the judge’s finding of a close personal relationship between Ms Sun and the deceased. No notice of contention disputing either finding was filed.

20. For the reasons which follow, the primary judge erred on both bases upon which he dismissed Ms Sun’s application for a family provision order. The evidence did not establish that the de facto relationship between her and the deceased had ended before his death. Even if it had, given the finding that she and the deceased were in a close personal relationship, the primary judge ought to have held that there were factors warranting the making of the application for a family provision order.

21. Ms Sun’s notice of appeal sought an order that the matter be remitted to the Equity Division for re-hearing. That order would only be appropriate if this court could not determine the issue under s 59(1)(c) and, if it were found that adequate provision for Ms Sun’s proper maintenance and advancement in life required that some provision be made for her, if this court could not determine what provision should be made (Uniform Civil Procedure Rules r 51.53).

22. The parties’ written submissions did not address the issues arising under s 59(1)(c). It did not appear that any credit issues would arise in relation to further evidence to update the financial position of Ms Sun or the beneficiaries under the will. Accordingly and without opposition, the court made orders for the provision of further evidence and submissions to enable this court to determine the issues under s 59(1)(c) if the grounds of appeal from the order of the primary judge were upheld.

23. For the reasons which follow, the appeal should be allowed. Ms Sun and the deceased were in a de facto relationship at the time of his death. An order for provision should be made for Ms Sun in the sum of $555,000.

Legislative provisions

24. It is convenient to refer to the relevant statutory definitions and provisions. Section 3(3) and (4) of the Succession Act define a “close personal relationship”. Those subsections provide:

“(3)   For the purposes of this Act, a close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(4)   For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care—

(a)    for fee or reward, or

(b)   on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).”

25. Section 57 of the Succession Act prescribes who are the persons eligible to make an application for a family provision order in respect of the estate of a deceased person. Section 57 relevantly provides:

“57 Eligible persons (cf FPA 6 (1), definition of “eligible person”)

(1)   The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

(a)   a person who was the spouse of the deceased person at the time of the deceased person’s death,

(b)    a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c)   a child of the deceased person,

(d)   a former spouse of the deceased person,

(e)   a person—

(i)   who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii)   who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f)   a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.”

26. “De facto relationship” is defined in s 21C of the Interpretation Act 1987 (NSW). Section 21C relevantly provides:

“21C References to de facto partners and de facto relationships

(1)    Meaning of “de facto partner” For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if—

(a)    the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or

(b)    the person is in a de facto relationship with the other person.

(2)    Meaning of “de facto relationship” For the purposes of any Act or instrument, a person is in a de facto relationship with another person if—

(a)    they have a relationship as a couple living together, and

(b)    they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

(3)    Determination of “relationship as a couple” In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case—

(a)    the duration of the relationship,

(b)     the nature and extent of their common residence,

(c)    whether a sexual relationship exists,

(d)    the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e)    the ownership, use and acquisition of property,

(f)    the degree of mutual commitment to a shared life,

(g)    the care and support of children,

(h)    the performance of household duties,

(i)    the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.”

27. Section 59 of the Succession Act relevantly provides:

“59 When family provision order may be made (cf FPA 7–9)

(1)   The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—

(a)   the person in whose favour the order is to be made is an eligible person, and

(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c)    at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2)   The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

(3)    The Court may make a family provision order in favour of an eligible person in whose favour a family provision order has previously been made in relation to the same estate only if:

(a)    the Court is satisfied that there has been a substantial detrimental change in the eligible person's circumstances since a family provision order was last made in favour of the person, or

…”

28. Section 60 of the Succession Act specifies a wide range of matters that the Court may have regard to for the purpose of determining whether the person who seeks an order for provision is an eligible person and for determining whether or not to make a family provision order, and the nature of any such order. Section 60 provides:

“60 Matters to be considered by Court (cf FPA 7–9)

(1)    The Court may have regard to the matters set out in subsection (2) for the purpose of determining—

(a)   whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and

(b)   whether to make a family provision order and the nature of any such order.

(2)   The following matters may be considered by the Court—

(a)   any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)   the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)   the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)    the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

…

(f)   any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)   the age of the applicant when the application is being considered,

(h)   any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)   any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)   any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)   whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)   whether any other person is liable to support the applicant,

(m)   the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)   the conduct of any other person before and after the date of the death of the deceased person,

…

(p)   any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

The facts

29. The deceased was born on 12 November 1921 and was aged 97 when he died on 2 February 2019.

30. No clear finding that the deceased and Ms Sun had established a de facto relationship was made in the principal judgment. The furthest the primary judge went in that judgment was to say that a statutory declaration made by the deceased on 10 January 2003 was positive evidence that Ms Sun and the deceased were living in a de facto relationship (at [76]). In the second judgment dealing with costs (Sun v Chapman (No 2) [2021] NSWSC 1231) his Honour said (at [8]) that he had rejected the Executor’s position that no de facto relationship had ever existed.

31. It is unnecessary to consider whether, and how far, the primary judge’s reasons in his Honour’s first judgment can be elucidated by his second judgment. On appeal, the Executor accepted that the primary judge had found that a de facto relationship had existed between Ms Sun and the deceased. He did not file a notice of contention that that finding was erroneous.

32. In any event, the evidence clearly established that such a relationship had existed. Ms Sun challenges the primary judge’s conclusion that it had ceased to exist before the deceased’s death.

33. For the reasons which follow, that challenge should succeed. It is necessary to consider whether any, and if so, what, order for provision should be made. Accordingly, it is necessary to set out the evidence of the existence, nature and quality of that relationship in some detail.

34. Ms Sun and the deceased commenced living together at his house in Seaforth in 1998. The deceased was then aged 78. Ms Sun was 40 years younger. She had emigrated to Australia from China. On 2 July 2001 she was granted a spouse visa (temporary).

35. There was conflicting evidence as to how the relationship started. Ms Sun deposed that she and the deceased met at a caravan park at Perisher and after exchanging correspondence he invited her to come to Sydney to look after him. The Executor deposed that the deceased told him that Ms Sun responded to a newspaper advertisement seeking someone to provide domestic services in exchange for free accommodation. The primary judge doubted Ms Sun’s account, but noted that it was not challenged in cross-examination. Ms Sun’s account is corroborated by a record of what the deceased told the police on 6 April 2014 (see [80] below)

29. Ms Sun’s evidence was that after she moved to Sydney from Canberra to live with the deceased in 1998 he showed her around Sydney and took her to beaches and clubs. She took a job in a laundry and later the deceased helped her find a job as a waitress at an RSL club in Harbord. She later worked at Manly Hospital and undertook TAFE studies to qualify as a sterilisation technician.

30. Ms Sun deposed that, from the time she lived with the deceased at his home in Seaforth until his death, she had her own bedroom in his home in Seaforth. She deposed that she also slept some nights with the deceased in his room and that they had a sexual relationship for about four or five years from about 1999. Although the judge had reservations about Ms Sun’s credibility, he did not reject that evidence and it is consistent with the deceased’s 2003 statutory declaration referred to below.

31. Ms Sun deposed that, outside of work hours, she and the deceased went to the beaches, watched movies, ate at restaurants and cafes and shopped together. She also deposed that they went on many overseas trips and cruises together, including three trips to Singapore, two to Thailand, and five to China. She deposed that they shared the same room during those trips and usually the same bed. They shared the expenses. She deposed that she did almost all of the cooking for the household. As the deceased got older he received home care services subsidised by the government. She deposed that she paid for some of the gap payments for those home care services and annexed a bank statement for the period from 17 June to 16 December 2017, corroborating that fact. She deposed that in the early years in the relationship she paid most of the electricity, gas, telephone and internet bills and that the deceased paid for the council and water bills. She deposed that some of the bills were in their joint names. She annexed an electricity account from 2017 in their joint name, a copy of a Green Slip for compulsory third party insurance for a motor vehicle in their joint names and an invoice in 2017 from a motor vehicle service centre addressed to them in their joint names. She produced photographs said to have been taken during visits of the deceased and her to China in 2009 and 2010 (J [27]).

32. Ms Sun produced a copy of a birthday card which she said the deceased gave her in or about 2002 from the deceased saying “Happy Birthday. All my love Richard”. She deposed that in 2015 she and the deceased visited the deceased’s brother who lived in Narrabri and she produced a photograph in corroboration of this.

33. Ms Sun deposed that over the years she occasionally slept in the deceased’s bedroom instead of hers, but mostly she slept in her own bedroom. By June 2003 the deceased was 82.

34. The deceased made a statutory declaration on 10 June 2003 in support of Ms Sun’s application for a permanent residency visa. He declared:

“1. I, Robin Alan (Richard) Chapman an Australian Citizen, self employed, residing at No 1 Yatama St, Seaforth, NSW 2019. I am the sponsor of Rose Wei Sun who is now being assessed for the grant of the subclass 801 permanent visa.

2. Rose Wei Sun and I have been living together for the past 5 years in an ongoing de facto relationship. We are very happy together. Very soon we shall be making arrangements for our wedding. We are compatible in everything we do, such as going out to dinners, social events and outings etc. We have enclosed photos to verify our attachment. I have submitted various statements from our friends to substantiate Rose Sun’s application for class 801 permanent residence visa. We are very happy and I do hope that the Immigration Department will give its decision and grant the 801 permanent visa.”

42. For the next 15 years they continued to live together.

43. Ms Sun’s evidence of the existence of a de facto relationship was corroborated by evidence of a friend, Ms Jing (Connie) Chen, a neighbour, Mr Jeffrey Garrick, and Ms Sun’s son, Mr Xin (Peter) Zhang.

44. Ms Chen deposed that she met the deceased in around 1999 when he was introduced to her by Ms Sun. She visited Ms Sun and the deceased at the Seaforth property for lunches and other visits. She saw them sometimes holding hands. She never heard the deceased refer to Ms Sun as his carer. She deposed that the deceased told her in about 2005 that he had “got a car for Rose”. She attended birthday celebrations for Ms Sun with the deceased. She received Christmas cards from the deceased and Ms Sun in which they both wrote on the card. The deceased usually wrote in English and Ms Sun usually wrote in “Chinese”. She deposed that in later years sometimes when the deceased and Ms Sun had had a “really big argument” Ms Sun asked to stay with her at her place and she allowed Ms Sun to do so. She deposed that a day or two afterwards, the deceased asked for Ms Sun to come back to him.

45. Mr Garrick lived diagonally across the road from the deceased and Ms Sun. He deposed to having seen arguments between Ms Sun and the deceased and on other occasions he saw them leaving their home, walking around the streets, holding hands. He also saw them shopping and deposed that they would usually be holding hands.

46. Mr Garrick was not cross-examined. Ms Chen was cross-examined but her evidence was not challenged. But she confirmed that she had not seen the deceased for five years (that is, from 2016). She also said that the deceased did not visit much.

47. As to Mr Garrick’s evidence, the primary judge simply said: “…his involvement appears to have been somewhat slight” (at [125]). However, Mr Garrick’s unchallenged evidence that he saw the deceased and Ms Sun walking the streets shopping together and holding hands was corroborative evidence that they were de facto partners, and that Ms Sun was not merely the deceased’s carer.

48. The primary judge did not say he disbelieved Ms Chen’s evidence. He said that “Ms Chen’s husband might have been able to corroborate his wife’s evidence but was not called”. Whether or not her husband might have been able to corroborate her evidence is unknown. Ms Chen did not depose to her husband having been present on the occasions to which she said that Ms Chen and the deceased appeared to be close. It is not clear that the judge disbelieved Ms Chen’s evidence. Indeed his later conclusion that a de facto relationship had existed between the deceased and Ms Sun would be consistent with his having accepted Ms Chen’s evidence.

49. Mr Peter Zhang is Ms Sun’s son. He moved to Australia in about 2002 when he was 16 years old. He was picked up from the airport by the deceased and Ms Sun. He lived with them at their home in Seaforth while he completed his secondary school education. He moved out when he was 18 when he started attending university. After moving out he visited the deceased and Ms Sun at the Seaforth property on special occasions such as Mother’s Day or whenever he was nearby the house. He visited at that time about four or five times a year. His evidence of his staying in the Seaforth property between 2002 and 2004 was corroborative of a de facto relationship between his mother and the deceased over that time. He deposed that his mother shared the main bedroom with the deceased on most nights.

50. Mr Zhang deposed to their relationship sometimes being fractious. He deposed that in more recent years his mother would sometimes leave the Seaforth property to stay at his home, complaining of big arguments with the deceased, after which the deceased would call him and explain what had happened from his point of view and ask him to ask Ms Sun to come back.

51. In his affidavit of 30 June 2020 Mr Zhang deposed:

“32. A few years ago, during one of their big arguments, when Mum had come to stay with me:

Richard called me and said in words to the effect: ‘/ think your Mum does not love me anymore. I think she's seeing someone else. Do you know if she is seeing anyone?’

I was not aware of Mum having another relationship and reassured Richard about this by saying in words to the effect: ‘Don't worry, she is not. You are overthinking it too much.’

33. At around that time. I went to visit Richard to check that he was okay. He appeared very sad when I saw him and had tears in his eyes. He said to me in words to the effect: ‘Please convince your Mum to come back. I promise I am not going to be angry at her in the future.’

34. During these big arguments, Mum never stayed at my place for more than a few days. She always forgave Richard for being “too angry” and always returned to live with him. She continued to live with Richard until he passed away.”

52. The primary judge summarised Peter Zhang’s evidence (at [54]-[66]). He did not say that he disbelieved Mr Zhang’s evidence. It may be inferred from his conclusion that there was a de facto relationship between the parties that he accepted the evidence. In relation to Mr Zhang’s evidence the primary judge only said (at [125]):

“Further, no evidence was adduced from members of Rose’s family, other than her son.”

53. This was not a finding that Mr Peter Zhang’s evidence should not be accepted.

54. There was some degree of sharing of financial responsibilities. Although both the deceased and Ms Sun kept separate bank accounts, they also for a time had a joint bank account. There was evidence of an invoice for a motor vehicle service, a renewal slip for compulsory third party insurance in respect of a motor vehicle, and an electricity account that were addressed to the deceased and Ms Sun jointly (J [36]). The fact that the accounts were addressed to them jointly indicates that the applications for the electricity connection and for CTP insurance were made by them jointly, and that the motor vehicle repairer was asked to address the invoice to them jointly.

55. Ms Sun received a Commonwealth Government carer’s allowance that was paid into the joint account that was maintained up to 2014. Thereafter it was paid into the deceased’s bank account. It was agreed that the carer’s allowance was payable by the Commonwealth to the carer, not to the patient under care. The payment of Ms Sun’s carer’s allowance into the deceased’s bank account indicates a continued sharing, albeit modest, of financial resources. This continued up to the deceased’s death.

56. The Executor’s case at trial was that the deceased and Ms Sun were never in a de facto relationship. Rather, she moved into the Seaforth property in response to an advertisement placed by the deceased for a housekeeper. The evidence of the Executor, his sister, Ms Corrine Mulder, and his brother, Mr Richard Chapman, was that according to their observation, the deceased engaged Ms Sun as his housekeeper and she became his carer, but that was the extent of their relationship. The Executor, whose evidence the primary judge accepted, deposed that he first met Ms Sun towards the end of 1998 or early 1999 when she was introduced to him by the deceased with words to the effect of “This is Rose, she is going to be cooking and cleaning for me. She will do all the chores”.

57. The Executor separated from his first wife in 1999 and moved back to live with his father for around three months and during that time Ms Sun cooked and cleaned the house and he observed no display of any affection between her and his father. His evidence was that he never observed Ms Sun and the deceased display any affection towards one another in a romantic way or to use any endearing names towards one another. His perception was that Ms Sun was his father’s carer. He considered that they both benefited from the arrangement as his father had someone cooking, cleaning and attending to domestic tasks in exchange for her having free accommodation. To his observation they kept separate rooms and his father always referred to her as his carer. He said that he was aware from his discussions with his father that his father and Ms Sun kept their finances separate. Although that was the Executor’s understanding, it was not wholly true (see paras [54] and [55] above). He deposed that over the years his father became increasingly frustrated at Ms Sun for neglecting her responsibilities around the house and saying that:

“I haven’t seen her all weekend. She’s supposed to be here looking after me with cooking, cleaning, taking me to the doctor. She has to go, Mike. As soon as she got her citizenship she turned nasty.”

58. In the last 10 years of the deceased’s life he became concerned about his father’s mental health as it became clear that his father was having some suicidal thoughts. His father said to him “I need to get rid of Rose and that’s it. I’m going to bring in someone new”. He said that around that time his half-sister, Corrinne, was making arrangements to rearrange her work commitments in Gloucester to come down to Sydney to care for her father.

59. The Executor said the deceased made frequent complaints by the deceased about Ms Sun in the last 10 years of his life and in particular in the last five years of his life, which occasioned the intervention of police.

60. Ms Mulder (the deceased’s daughter) also deposed that her father always referred to Ms Sun as his carer and never as his partner or girlfriend. She observed that they kept separate bedrooms. She visited her father at least once a year and on those occasions never saw him display any signs of affection towards Ms Sun. She deposed that towards the last five or so years of her father’s life she received a number of phone calls from the police regarding instances where they had attended the Seaforth property and had to intervene. She recorded complaints that the deceased made to her about Ms Sun’s behaviour during that time. He complained that Ms Sun had spat on him and pushed him and that he felt neglected by her. She deposed that:

“19. The accumulation of my father's frequent complaints about Rose neglecting to care for him, together with Police intervention, led me to discuss alternative care arrangements with dad towards the end of 2018. During a conversation in around October/November 2018. dad said to me ‘Rose is getting $700 to look after me.’ I cannot recall the frequency of the payment. Dad said, ‘That's What you'll get bub to look after me.’ After my discussions with dad, I said to him ‘I will come down to Sydney and care for you from Monday through to Thursday each week. I was working 2 jobs at the lime and was wailing to finish up with one of my jobs before coming down to Sydney to look alter dad. Unfortunately, we lost dad a few weeks before I was meant to attend to his care as we had discussed.”

61. Contrary to what Ms Mulder deposed to having been told by the deceased, Ms Sun was not paid $700 a week to look after him. She was not paid anything to look after him, except for the carer’s allowance paid by the Commonwealth.

62. Mr Richard Chapman also deposed to having been introduced to Ms Sun by his father who said that “she’s my carer”. He also deposed to observing that his father and Ms Sun had separate bedrooms and he deposed to his father complaining that “Rose is not caring for me” and other like accounts, including complaints that Ms Sun had sworn at him, pushed him over, and spat at him and that this behaviour had been reported to the police.

63. This evidence is not inconsistent with the deceased and Ms Sun having been in a de facto relationship. She was about 40 years younger than he. It is unsurprising that he did not disclose that relationship to his adult children. Ms Sun’s evidence of a romantic relationship is corroborated by photographs as late as a cruise in 2017. It is also corroborated by the evidence of her son, Ms Chen and Mr Garrick. The fact that Ms Sun’s son, Peter, lived with the deceased and Ms Sun for about two years between the ages of 16 and 18 is inconsistent with the relationship between the deceased and Ms Sun being merely that of patient and carer. The de facto relationship was sworn to by the deceased in 2003. Evidence of the continuance of the relationship in the hospital records and police notes is referred to below.

Did the de facto relationship cease before the deceased’s death?

64. Ms Sun and the deceased lived together until his death. The primary judge concluded that prior to the deceased’s death they had ceased to live together as a couple.

65. The respondent submitted that a de facto relationship continues only for so long as the indicia which give rise to the relationship continue to exist (H v P [2011] WASC 78 at [56]-[58]; Clarence & Crisp [2016] FamCAFC 157 at [51]-[52]). This cannot be wholly true because, as the respondent accepted, a de facto relationship does not end because one partner has to live separately from the other for reasons of health (Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613 at [32]-[34]). In her written submissions, Ms Sun submitted that the relationship continued unless the deceased communicated to her that the relationship was at an end. She submitted that it was significant that “there was never any communication of a separation by the deceased to [her]”. That is undoubtedly a relevant circumstance and, in some cases, might be decisive (Hibberson v George (1989) 12 Fam LR 725 at 740). But it is not determinative.

66. The question whether Ms Sun and the deceased were living in a de facto relationship at the time of the deceased’s death depends upon whether they had a relationship as a couple living together (s 57(1)(b) of the Succession Act and s 21C(2)(a) of the Interpretation Act).

67. Section 21C does not define what is meant by a relationship “as a couple”. Section 21C(3) specifies circumstances to be taken into account in determining that question. The cases dealing with adjustment of the property interests of parties in a de facto relationship, and the ordinary meaning of that expression, is that it refers to a “coupledom”, that is, a relationship like the relationship of marriage. (H v P at [53]-[55]). This may also be inferred from the particular matters specified in s 21C(3).

68. In concluding that the relationship of coupledom had ceased before the deceased’s death, the primary judge referred in particular to hospital records, which his Honour considered to be equivocal (at [94]) and police records, which his Honour found conveyed the overall impression that the relationship between the deceased and Ms Sun was that of patient and carer (at [107]).

69. The relationship of patient and carer is not inconsistent with a continued relationship of husband and wife or de facto husband and wife.

70. Nor does a de facto relationship cease to be such because it becomes fractious and the parties cease to love each other.

Hospital records

71. Dr Ian Tang, a senior medical officer with Greenwich Hospital reported to the deceased’s general practitioner of his visit to the deceased in his home on 12 December 2018. Dr Tang wrote: “It was a pleasure to see Mr Robin Chapman, along with Rose his partner, in his home on 12/12/2018”. After referring to his medical conditions and medications, Dr Tang continued:

“Thank you for referring Mr Robin Chapman, who is a 96 year old gentleman with a presumed diagnosis of a metastatic upper GIT malignancy. Unfortunately I did not have, nor could I access any details regarding his condition. Rose his partner indicated he was not for surgery or systemic therapy. He was extremely hard of hearing and his thinking was concrete. I note he had multiple admissions in October for abdominal pain, confusion and suicidal ideation.

…

Robin’s mood is low, he feels depressed and I note a psychiatrist review in Jan this year, the impression I had from that letter was that Robin’s view was Rose should be looking after him more. He vacillates between feeling down and telling me he is ‘fighting fit’.

…

Robin told me point blank without any prompting that he does not want to go to a nursing home. I did not discuss advanced care planning or end of life locations during this review. Rose suspects he wants to have his end of life care at home.

Rose later took me aside and told me that Robin needs to go to a nursing home as she could not cope with his care needs. Robin has been apparently pouring water into her car engine in order to stop her from going to work, I assume in an attempt to get her to stay and look after him. She is currently on a few weeks of leave but will have to go back to work soon.”

72. The discharge summary from Royal North Shore Hospital of 17 January 2019 noted in “Social/Functional History”:

“Home with partner Rose – primary carer.

20 year de facto relationship

Supportive son (police officer)

…”

73. Under the heading “Carer Stress” it was recorded:

“Primary reason for presentation related to carer stress and concerns about patient and carer safety at home. Medical team and social work involvement throughout admission to facilitate care and safety on discharge.

Planned for respite at Whiddon, Hornsby – bed available.

Rose, partner, and Michael, son, originally in agreement – Robin adamant on returning home.

On reconsideration Rose and Michael declined respite bed, preferring to take Mr Chapman home.

This is against the medical advice of the team due to concerns about patient and carer safety at home.

A discussion with DVA Services at Home regarding support on their return home revealed Mr Chapman is well known to DVA and currently utilising all available services. No scope for increasing at this time.

Rose was present with social worker for the conversation and is aware of the situation.

Still planning on discharging home.”

74. The same discharge summary also records:

“Psychiatry Consultant Liaison Formulation

He has presented with carer stress due to functional decline and behavioural problems at home. This has been precipitated by steroid use as well as possible dementia. His mood is not depressed and his attention is good enough to rule out delirium. The capacity of his wife and the ACAT services has been exhausted. Predisposing factors for this dementing include his age and his withdrawing social network. Most of his friends have died. Perpetuating factors include an unwillingness to go to a nursing home and personality traits which make the relationship with his wife and children challenging.”

75. These notes are corroborative of the reputation of the deceased and Ms Sun as de facto partners. The primary judge said (at [92]) that he inferred that the reference to Ms Sun as the “partner” of the deceased arose from the way in which she described herself to Dr Tang. His Honour said that otherwise Dr Tang’s notes did not suggest a de facto relationship between the deceased and Ms Sun.

76. It is purely speculative to infer that it was Ms Sun who described herself to Dr Tang as the deceased’s partner and not the deceased, although it is quite possible that it was she. If the reference were made by her, it was made in the deceased’s presence and evidently not contradicted by him. It would also demonstrate her understanding of the nature of their relationship.

77. The notes suggest the hospital and Dr Tang regarded them as a couple and that Ms Sun, as well as being the deceased’s carer, was his partner.

78. The medical notes are also important in showing that the deceased, then aged 97, had a dementing condition.

Police records

79. The dementing condition is borne out by the police records. The primary judge accurately recorded that those records indicated reasonably frequent involvement by the police in the deceased and Ms Sun’s domestic affairs between 2014 and 2018. Complaints were made by both of them against the other. After setting out police reports between 6 April 2014 and 11 November 2018, the judge found:

“[107] There are clear inconsistencies in the complaints made to police. On the one hand, the reports refer to a de facto relationship having existed some years previously. On the other hand, one report refers to a continuing de facto relationship. The reports indicate considerable antagonism between Rose and Richard over the last five years of Richard's life. There are frequent references to Rose as Richard’s carer, although there are also references to their having been in a de facto relationship sometime earlier. The overall impression created by the police reports is that the relationship between Richard and Rose was that of patient and carer.”

80. The police report of 6 April 2014 was of a complaint made by the deceased concerning Ms Sun. The police notes record that they had been living together for about 14 years with Ms Sun as a companion and housekeeper for him. The police recorded that “They have never been in an intimate relationship” (something Mr Chapman later contradicted in his dealings with the police). That police note records the deceased’s telling the police that he met Ms Sun whilst on a ski trip, which is consistent with her evidence and contrary to the Executor’s evidence as to what he was told by the deceased.

81. The deceased complained of Ms Sun having got angry and their having had an argument and that she spat on him twice. He declined to make a statement. He showed the police a typed document about incidents and the police advised him to make a statement at the police station and bring the document with him. He is reported as saying that he would like Ms Sun to seek medical treatment to control her random outbursts.

82. The police record of 23 February 2016 was of another complaint by the deceased over an argument when, according to the record, Ms Sun was packing a suitcase for a trip to Hong Kong and he noticed that she was packing a box of chocolates which he then grabbed and hid from her.

83. The record of 27 June 2016 is of a complaint made by Ms Sun where the police were called because the deceased had complained about the food she provided and knocked his dinner plate off the table in frustration. The police attended at about 7.25pm and both parties were informed that if they could not live together in harmony, it might be best if they no longer resided together. Ms Sun said she would look into alternative residential arrangements.

84. That did not happen. From time to time Ms Sun left the house and went to stay either with Ms Chen or with her son, Mr Zhang. They both gave evidence to the effect that on the occasions Ms Sun left the Seaforth property to stay with them, the deceased would call to ask for her to come back and she returned (paras [44] and [49]-[51]).

85. The primary judge did not say whether he accepted or rejected this evidence, but it is consistent with the objective evidence of the police reports of the deceased and Ms Sun having “very big arguments” and of her sometimes leaving the house following those arguments, and with their having got back together.

86. The police note of their attendance at the property on 24 September 2017 is important in relation to the deceased’s perception of his relationship with Ms Sun. The police note, based upon what the deceased said, is as follows. In the note, the reference to “VIC” is to the deceased and the reference to “P/N” is to Ms Sun.

87. The police note states:

“The VIC and the P/N reside together at the above address In ... for approx 15 years. About six years the P/N obtained her citizenship and the VIC stated that tile relationship started to sour. The VIC and the P/N are not currently In an intimate relationship, although the VIC suggested that they had previously been in an Intimate relationship many years ago. The P/N Is now the primary carer for the VIC and completes the majority of the household duties. CHILDREN: No children from this relationship PRIOR HISTORY OF VIOLENCE INCLUDING STALKING, INTIMIDATION: Previous verbal Domestic Violence - of a similar minor nature over minor disputes ... MOST RECENT INCIDENT: Victim contacted Police to attend to report the taking of a motor vehicle without his permission by his carer. On arrival Police met with the complainant - a wily octogenarian [sic: he was then almost 96] who explained that his carer SUN had taken a vehicle belonging to him without his permission. It was established however that SUN Is the registered owner of the vehicle. CHAPMAN explained he had placed a chain over the gate to prevent her from leaving and that she used a hammer to remove the chain. Police explained to CHAPMAN that despite his reluctance to allow SUN to leave of her own volition it was not an offence that she did actually leave and that to the contrary It would constitute and offence to prevent a person from leaving and thus depriving them of their liberty. No evidence of any damage to the gate was sighted by police ... CHAPMAN frequently contradicted himself In the conversation to police. Initially he agreed they had been in an intimate relationship and then later repeatedly denied they had been [sic] ever been Intimate, CHAPMAN made frequent references to obtaining an ADVO, however police explained that there were no grounds on the basis of this complaint to warrant such action. CHAPMAN made allegations of previous unreported assaults, then declined to elaborate or provide and further information ... When the topic of a legal separation was discussed, CHAPMAN dismissed this as an option stating that ‘It costs money’ and further added that ‘a magistrate’s for free isn’t he?’ ... No offence detected and It was strongly suggested to CHAPMAN that he take legal advice to dissolve the relationship and that In this particular Instance police were not able to assist him further In this cause ... appraised at Manly Station … MENTAL HEALTH & OTHER HEALTH ISSUES: Victim suffers from a number of aliments related to his old age and general deterioration of his health for which he receives treatment and Is largely assisted by his carer SUN - and acknowledged as such to police by CHAPMAN … FEARS HELD BY VICTIM: No fears held ... ACTIONS TAKEN BY POLICE: DV event and option of separation discussed, with the appropriate legal advice/ assistance. Offer to contact his son from a previous marriage to assist him declined by CHAPMAN.” (Underlining added)

88. It appears from this that the deceased considered the relationship with Ms Sun was such that its dissolution would cost him money. This is consistent with their being in a de facto relationship and not merely a relationship of patient and carer.

89. The police were called again on 29 September 2017. Their note of that attendance records that Ms Sun and the deceased had been in a “domestic relationship” for 20 years and that Ms Sun was “more his carer these days than being his domestic partner”. The deceased complained about the food Ms Sun was providing. They spoke to his son by phone (presumably the Executor) who said “…his father has been grumpy his whole life, although he was becoming more unreasonable in the past year or so. He agreed to take him to a doctor for assessment of his mental state”.

90. On 14 November 2017 the police were again called by the deceased who complained that Ms Sun had taken a vehicle belonging to him without his permission and that she was trying to move her parents into the house without his permission. The police note states:

“It was established however that SUN is the registered owner of the vehicle and that the parents were there on holidays. When explained to CHAPMAN that the vehicle was In SUN's name that she was entitled to take the car but police could speak to the parents and ask them not to stay. CHAPMAN became angry as he did not believe police about the vehicle. CHAPMAN frequently contradicted himself In the conversation to police. Initially he agreed they had been in an Intimate relationship and then later repeatedly denied they had been [sic] ever been intimate. CHAPMAN made frequent references to obtaining an ADVO, however police explained that there were no grounds on the basis of this complaint to warrant such action. CHAPMAN made allegations of previous unreported assaults but refused to state what they were. Still not happy that police had retrieved his car or would not apply for an ADVO, CHAPMAN alleged that SUN had kicked him earlier in the morning. CHAPMAN pointed at his leg which showed no sign of injury. The condition of his leg and fragile skin would show a mark or tear from the slightest of contact. When asked further about the kick CHAPMAN would not elaborate. Police are of the belief that the kick did not occur and that CHAPMAN was trying to make allegations to get his way. CHAPMAN showed signs of onset dementia and made little to no sense when speaking to police. When CHAPMAN did not get his way he became very angry and child like. Police spoke to SUN who was not at the location. SUN stated that CHAPMAN had been getting angrier as time passes and also believes that he may have dementia. SUN stated that she had left with her parents earlier that morning as CHAPMAN was yelling at her to leave and not wanting to put her parents through the stress had decided to leave and find somewhere else for the parents to stay. No visible Injuries on either party and no one willing to provide statements …Victim suffers from a number of ailments related to his aid age and general deterioration of his health for which he receives treatment and Is largely assisted by his carer SUN - and acknowledged as such to police by CHAPMAN also possible signs of dementia.”

91. After being called to the property again on 26 December 2017 by the deceased complaining about the quality of care he was being provided, the police advised that he should talk to his doctor and organise a new carer. The police note records that the house appeared to be in good clean order and there had been food left for the deceased on the kitchen counter. They telephoned Ms Sun, who told them that she was at Chatswood shopping centre and would be returning to the property. The police telephoned the deceased’s daughter, who told them that Ms Sun was taking adequate care of the deceased and that although he got angry with Ms Sun from time to time, she had no issues with the care being provided to him whatsoever. His daughter stated that she believed that Ms Sun was caring for the deceased but, due to his anger issues, she sometimes liked to leave for short periods of time.

92. There were further incidents following which the police were called on 6 February 2018, 6 August 2018, 14 October 2018, 24 October 2018 and 10 November 2018.

93. The police record of their attendance on 14 October 2018 states:

“It Is a common occurrence for the pair to have arguments and for the patient to allege that there Is a lack of care from SUN as mentioned in previous police events. It Is important to note that the patient ls a 96 year old man who suffers from depression and dementia and It is unlikely that the alleged Incident occurred.”

94. The police report of 24 October 2018 states:

“The PN and PR have been in a de facto relationship since 1998. About 8:46pm Wednesday 2018 the PR SUN approached the PN CHAPMAN as she had found out a relative had passed away overseas and required her passport to attend the funeral. The PR SUNs plan was to go to Canada for two nights. The PN CHAPMAN did not like this as he is elderly and fairly frail and like to have the PR SUN around to assist him around the house and cook him dinners. As a result a verbal argument has ensued where the PN CHAPMAN has hidden the passport and removed the fuses from the switchboard of the house and thrown them on the lawn. Police have attended the location and located the fuses on the lawn, restoring light to the house. Police then helped the PR SUN locate her wallet which was in the switchboard. The PN CHAPMAN has gone to bed and the PR SUN has prepared to be picked up by her son who finished work at 10prn.”

95. Ms Sun submits that the control that the deceased sought to assert over Ms Sun was indicative of much more than a patient/carer relationship. I agree. It is also incompatible with the deceased, as late as 24 October 2018, wishing to separate himself from Ms Sun, let alone taking any steps to do so.

96. The final police report is of 11 November 2018 which records a complaint made by Ms Sun. The report states:

“The VICTIM and PN have been In a defacto relationship since 1998. The VICTIM has been caring for the PN significantly over the lasts years and receives carer allowance from the Government however VICTIM states this goes into a bank account of the PN . The VICTIM attended Manly PS distressed about the fact the PN has rang the VICTIMS work stating she hasn't been caring for the PN properly and isn't fit to be a nurse. The VICTIM started crying saying my national police check ls being held up for some reason and believes it Is the PN fault. Police had previous interactions with both parties and stated to the VICTIM that she needs to seriously consider moving on from the relationship as she herself stated 'I'm trapped, he holds my car against me pouring water in it and takes my spare keys so I can't drive and rings my work'. Police stated to the VICTIM that she could move to her sons place In Parramatta as she clearly states "she does not want to care for the PN named anymore he ls creating a huge amount of stress and Police always coming around arid she feels bad as Chinese culture Is to 'keep inside' and help partner but I can't do it anymore". Police advised her they will email the NB DVLO's and get them to contact her for some further information In helping to deal with the situation as she is finding it hard to leave due to feeling bad. Police stated she cannot be made to feel bad for leaving the relationship has broken down. Police emailed NB DVLO regarding helping VICTIM WEI as concern coming under more Police notice. FEARS HELD BY VICTIM: NiI, other than verbal arguments and petty behaviour continuing.”

97. The primary judge drew from these records the inference that, whilst the parties had been in a de facto relationship some time earlier, at the time of the reports their relationship was that of patient and carer. Inferentially, his Honour concluded that the reports indicated that the de facto relationship had come to an end.

98. I do not agree. The evidence no doubt shows that the romance of the relationship had come to an end. However, the parties continued to live together. Ms Sun continued to provide the deceased with care. He was irascible and his mental health had declined. He was perceived to have a degree of dementia and depression (which is consistent with the hospital record) which made him more grumpy and irascible than he had previously been. Nonetheless, Ms Sun continued to live with him and to provide him with care notwithstanding their frequent arguments. This is consistent with the continuation of their de facto relationship, rather than inconsistent with it: just as a wife might continue to look after a demented and grumpy husband. Their relationship, at least in the later years, was evidently not a loving one. But that does not mean that they had ceased to live together as a couple.

99. These are the major considerations in determining whether the parties were in a de facto relationship at the time of the deceased’s death. There were two other important pieces of evidence. One concerns representations made to the Department of Veterans’ Affairs about their relationship. The other concerns a relationship certificate issued by the Registrar of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1995 (NSW) on 21 January 2019, shortly before the deceased’s death, recording their being de facto partners.

Department of Veterans’ Affairs

100. The deceased had served in the Royal Australian Navy during World War II. Since 2000, the deceased was paid a service pension at the “single rate” and was so paid until 9 December 2018 when documents were provided by Ms Sun that confirmed that she and the deceased had been in a “partnered relationship” since 2002.

101. It appears that on 17 July 2018 Ms Sun lodged a form with the Department of Veterans’ Affairs entitled a “Representative Initiated Request” in which she stated that she was in a de facto relationship with the deceased and wished to be appointed as his representative being “permitted to act and enquire”. She stated that “the client is still able to make their own decisions but needs or wants help with DVA matters”. She attached photographs to support her claim that they were in a de facto relationship.

165. The deceased’s eldest son, Richard Chapman, in his affidavit of 12 June 2020, deposed that he received a monthly pension of $1,120. He lived with his wife in a house at Oxford Falls which they jointly owned. He then estimated the value of the property to be $1.6 million. He said the property was ageing and in need of repair, which he estimated would cost tens of thousands of dollars. It was subject to a mortgage of $25,000. He had small credit card debts. His and his wife’s joint income was $3,370 per month and their expenses were of the same order.

166. The deceased’s daughter, Ms Corrine Mulder, is 62. In her affidavit of 12 June 2020 she deposed that she worked as a cleaner and had a weekly income of about $300 per week. In her affidavit of 25 February 2022 she deposed that she received a Centrelink subsidy that varied between $400 to $500 per fortnight, which supplemented her earnings then said to be approximately $200 per week, or $400 per fortnight. She deposed that her monthly expenses were $1,666. On that basis, after taking into account the Centrelink supplement, Ms Mulder’s income would be just sufficient to meet her estimated monthly expenses. She had two credit card debts totalling approximately $7,000. Her house is unencumbered but required renovations. She had obtained a quote for the renovations of approximately $25,000 which she could not afford to pay. She deposed to having a number of health concerns which would require regular treatment and even potential surgery. She has minimal superannuation.

167. Four of the deceased’s grandchildren who are each entitled to 2.38% of the net proceeds of sale of the Seaforth property gave evidence of fairly parlous financial conditions and health issues.

168. Although the other beneficiaries did not give evidence of their financial circumstances, none of them was required to justify the provision made for them (Page v Hull-Moody [2020] NSWSC 411 at [171] (Hallen J)).

169. As noted above, the Executor submitted that if an order for provision were made in favour of the applicant, the burden of that provision should be borne by the beneficiaries proportionately in accordance with their entitlements to the net proceeds of sale of the Seaforth property. The financial circumstances of the deceased’s children are not such as would warrant a different order as between them, and the more remote relationship of his grandchildren does not warrant an adjustment as between the grandchildren, or as between the children and grandchildren.

170. Although the circumstances of the four grandchildren do not warrant an adjustment to how the burden of a family provision order should be borne, their financial circumstances and, to some extent, the financial circumstances of the deceased’s children, restrain what would otherwise be an appropriate order for provision in favour of the applicant it there were no such competing financial claims.

Consideration of what order should be made

172. There are no hard and fast rules as to the approach to be taken to the awarding of provision to a surviving wife or de facto wife out of her partner’s estate and there is no general rule that a widow’s claim is paramount. Nonetheless as a general guideline a testator will usually owe a moral duty to his widow of a long marriage, so far as the estate permits, to make provision for her to ensure that she is secure in her accommodation, has an adequate income and a fund for modest luxuries and contingencies (Steinmetz v Shannon [2019] NSWCA 114 at [98]-[109], [151]).

173. The respondent submitted that Ms Sun’s mortgage debt was $518,000, relying upon an admission made to that effect by Ms Sun in cross-examination. In the court below, after judgment was reserved, the plaintiff filed a supplementary submission seeking to reopen his evidence to tender a bank statement of an additional debt owed to the bank said to be secured by the mortgage of $81,364.49. The Executor did not dispute that that material had been disclosed prior to trial but objected to the further evidence. The Executor did not dispute that Ms Sun had two housing loans but said she had failed to provide evidence of that. The Executor submitted that a defendant had no responsibility to tease out of a plaintiff evidence of what might be her or his financial position. There was no challenge to the authenticity of the record. The primary judge refused the tender because the balance shown was the balance of the debtors at 31 December 2020 and not the current balance (at [138]).

174. Ms Sun provided updated evidence as to her financial position after the hearing of the appeal, as she was required to do. The Executor contended that, on the basis of the admission she made in cross-examination that the mortgage debt was $518,000, it should not now be accepted that the mortgage debt is as deposed to by Ms Sun as being $555,601.16. That sum, however, is consistent with the bank statements which she annexed to her affidavit of 25 March 2022. Ms Sun gave an explanation in her affidavit of 13 April 2022 in relation to her admission in cross-examination that the mortgage debt was $518,000. For my part I find that explanation wholly convincing. Objection was taken to the reading of that affidavit but I see no reason to reject it.

175. The Executor submitted that the relationship between the deceased and Ms Sun was not harmonious, that she did not assist the deceased to build up and maintain his estate, and that she was financially independent of the deceased, having had her own property, and did not need the deceased to provide her with security of accommodation or with a fund to meet unforeseen contingencies. He submitted that the deceased’s providing her with rent free accommodation, enabled her to build up her assets.

176. For her part, Ms Sun submitted that it was because of the care she provided to the deceased that allowed him to remain in his home, thereby enabling the estate to benefit from the then prevailing trend of increasing house prices.

177. As to the last submission, it is not entirely clear to me that had the parties separated in, say, 2015, that the deceased would not have found a live-in carer who could have looked after him in his house, or, if he had been required to be admitted to an aged care facility, that that would necessarily have entailed the sale of the house. Of more significance is that if the parties had separated at any time before the deceased’s death, as at least implicitly acknowledged by the deceased, Ms Sun would have had a claim on his assets in the Family Court on the breakdown of their de facto relationship. For the reasons given in Steinmetz v Shannon, it is not appropriate to speculate on what the outcome of any such application would have been, but the deceased acknowledged that it would have been costly for him.

178. It is undoubtedly the case that the relationship soured over time, particularly from about 2014 when the deceased and Ms Sun made complaints to the New South Wales Police about the behaviour of the other. The photographs taken from the 2017 cruise show that some affection continued, at least during the period of the cruise, but I do not think that the deterioration of the relationship is a reason for reducing the provision that would otherwise be appropriate to be made for Ms Sun. Rather, that deterioration would have increased the burden of the relationship on her. It must be remembered that the deceased’s mental health had deteriorated. His complaints against Ms Sun were considered by the police to be due to his dementing condition, of which there is corroborative evidence in the hospital records. The last years of their relationship must have been a difficult time for Ms Sun. The lack of harmony in the relationship enhances rather than diminishes her claim for provision.

179. I do not accept that the provision of free accommodation and board for the 20 years that Ms Sun shared the Seaforth residence with the deceased is of relevance, except in so far as it enabled Ms Sun to build up her own assets.

180. Ms Sun owns the property at Kariong where she now lives. It is mortgaged to the extent of about $555,000. Ms Sun’s current income is only just enough to cover the mortgage payments, property expenses and other living expenses, and that, only by living frugally. She deposed that the weekly mortgage repayments were approximately $678. Her weekly income after tax is only $1002.

181. Discharge of the mortgage debt coupled with receipt of the pension from the Department of Veterans’ Affairs would provide her both with secure accommodation and an adequate income, at least while she remains in work.

182. In other circumstances adequate provision for her maintenance and advancement in life would require further provision to provide a fund for contingencies. But having regard to the financial needs of several of the beneficiaries, coupled with the fact that Ms Sun’s current needs are largely the result of her very generous gifts to her son and his wife who would have their own moral duty to support her if support were required, I do not think that the deceased’s moral obligation extends beyond provision that would discharge her mortgage debt.

183. This assessment assumes that Ms Sun’s pension will be reinstated by the Department of Veterans’ Affairs. If the Department declines to reinstate the pension and any available challenge to such a decision is unsuccessful, it would be open to her to apply for further provision pursuant to s 59(3)(a) of the Succession Act. Although she is not presently in receipt of the pension her present circumstances are that she is the deceased’s de facto widow and entitled to be treated as such. A refusal by the Department to accept that that is the position would be a substantial detrimental change to her circumstances.

184. Against the possibility, remote though it may be, that the Department would refuse to reinstate her pension, the estate should not be fully distributed until the Department’s position is known.

185. It follows from the orders I propose that the costs order below should be set aside. Ms Sun is entitled to her costs below and of the appeal.

186. I propose the following orders:

1. Grant leave to the appellant to rely upon further evidence as set out in the affidavit of Mitchel Broom dated 19 January 2022;

2. Grant leave to the respondent to rely upon further evidence as set out in the affidavit of Linley Li dated 22 February 2022;

3. Grant leave to the appellant to rely upon the affidavits of Mitchell Broom sworn 9 March 2022 and 10 March 2022.

4. The costs of the notices of motion and the application to adduce the evidence of Mitchell Broom of 9 and 10 March 2022 be costs in the appeal.

5. Appeal allowed.

6. Cross-appeal dismissed.

7. Set aside the orders of the primary judge of 4 August and 3 September 2021.

8. In lieu thereof:

1. declare that at the time of the death of the late Robin Richard Chapman (“the deceased”), who died on 2 February 2019, the appellant was living with the deceased in a de facto relationship;

2. order that provision be made out of the deceased’s estate in favour of the appellant in the sum of $555,000.

9. Order that the burden of the order for provision referred to in order (8)(b) be borne by the beneficiaries of the deceased’s estate set out in the annexure to the reasons of the primary judge according to the proportions in which they are entitled to share in the proceeds of sale of the Seaforth property formerly owned by the deceased.

10. Order that the respondent pay the appellant’s costs of the proceedings below and of the appeal and cross-appeal on the ordinary basis and be indemnified out of the deceased’s estate in respect of that liability.

11. Order that the appellant promptly notify the Department of Veterans’ Affairs of the orders and reasons of this court and apply for the reinstatement of the war widow pension and gold card formerly provided to her.

12. Order that the respondent be restrained from distributing the estate unless and until the respondent is advised by the Department of Veterans’ Affairs, or the appellant, or the appellant’s solicitor, that the appellant’s pension and gold card have been reinstated, provided that this order does not prevent the respondent from:

1. paying the appellant the legacy the subject of the order for provision in order (8)(b) or costs payable to the appellant pursuant to order (10), or administration expenses incurred by the respondent including his costs and disbursements of these proceedings;

2. distributing the estate to the beneficiaries provided at least $400,000 is retained; or

3. otherwise distributing the estate with the written consent of the appellant or her solicitor.

13. Liberty to either party to apply to a single Judge of Appeal on reasonable notice in relation to order (12).

187. BRERETON JA: The late Robin Alan Richard Chapman died on 2 February 2019, leaving an estate in excess of $2.5 million. The respondent Mr Michael Chapman, one of the deceased’s sons, is the Executor of and principal beneficiary under his last will, which was made in 1996 and (understandably given its date) contained no provision for the appellant, Ms Wei (Rose) Sun, who was to live with him in a close personal relationship – and at least for a time in a de facto relationship – for more than 20 years from 1998 until his death. Ms Sun’s application for a family provision order under Succession Act 2006 (NSW), s 59, was dismissed. ^[1] The primary judge held that although she and the deceased had at some time been in a de facto relationship, that relationship had ended before the deceased’s death; and that although they were in a close personal relationship, there were not factors warranting the making of the application. Ms Sun appeals to this Court, and the Executor cross-appeals from the primary judge’s refusal to make a costs order against Ms Sun.

     1. Sun v Chapman [2021] NSWSC 955.

188. I have had the benefit of reading in draft the judgment to be delivered by White JA. I agree with the orders proposed by his Honour, and with his Honour’s reasons. I wish to add some observations relative to:

1. the applicable standard of appellate review;

2. termination of a de facto relationship;

3. factors warranting the application; and

4. the appropriate order.

189. As to the applicable standard of appellate review, and notwithstanding my expressed agreement in Yesilhat v Calokerinos ^[2] with the reasons of Macfarlan JA,^[3] I share White JA’s doubt that the restraints on appellate intervention in discretionary decisions ordained by House v The King ^[4] apply to an appeal from a finding that a person is an eligible person for the purposes of a family provision application, whether by reason of being in a de facto relationship or otherwise. Whether a person is an eligible person, or in a de facto relationship, involves no exercise of discretion. Like a conclusion that conduct is negligent, or that a contract is unjust,^[5] it is a conclusion of mixed fact and law, and on appeal the Warren v Coombes ^[6] test applies. In this respect I entirely agree with the judgment of Leeming JA, which I have had the benefit of reading since first drafting these remarks.

     2. [2021] NSWCA 110 at [161].

     3. [2021] NSWCA 110 at [97].

     4. (1936) 55 CLR 499; [1936] HCA 40.

     5. As to which in this context see the debate in Antonovic v Volker (1986) 7 NSWLR 151; Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256; Nguyen v Taylor (1992) 27 NSWLR 48.

     6. (1979) 142 CLR 531; [1979] HCA 9.

190. As to termination of a de facto relationship, as White JA explains, whether Ms Sun and the deceased were living in a de facto relationship at the time of the deceased’s death depends upon whether they then were in a relationship as a couple living together. As it was accepted that Ms Sun and the deceased were at some earlier time living in a de facto relationship, resolution of that question necessarily involves whether that relationship had come to an end, or in other words whether there had been a severance of the “coupledom” – or, in more traditional language, of the consortium vitae. Although stated in the context of marriage, the following description of “separation” by Watson SJ of the Family Court is illustrative:[7]

“’Separation’ means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of children of the marriage.”

7. Todd & Todd (No 2) (1976) FLC ¶90-008 at 75,079; approved in Pavey & Pavey (1976) FLC ¶90-051 at 75,211-3 (FamCAFC); Falk & Falk (1977) FLC ¶90-247 at 76,333 (FamCAFC).

191. The relationships of carer and de facto spouse are not mutually exclusive, and it is not uncommon for the physical and/or mental decline of one spouse to result not only in the dissipation of romance, but also in the other becoming a “carer”; this does not sever the consortium vitae. Nor does disharmony in a de facto relationship bring it to an end. I agree with White JA that communication of an intention to separate is relevant but not decisive. While a physical separation coupled with an intention to sever the consortium vitae will bring a de facto relationship to an end, physical separation without a concurrent intention to sever the coupledom does not do so. ^[8] Nor does an unenacted intention to end the relationship, whether or not it is communicated. Statements such as “I’m leaving you” or “Get out” do not sever the consortium unless they are acted upon.

     8. Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613 at [32]-[34] (per curiam).

192. Here, there was evidence of a romantic relationship, on trips and holidays, at least as late as 2017. In later years, not long before his death, Ms Sun visited the deceased regularly when he was in hospital, which is suggestive of something more than mere carer status. The well-documented arguments between them are not atypical of, let alone inconsistent with, a marriage-like relationship. Their occasional physical separations were only temporary. Most significantly, the deceased’s complaints and threats to obtain a substitute carer were never acted on: even his reported wish that his daughter Corinne replace Ms Sun as his carer was never implemented. The consortium vitae was never severed, and the de facto relationship continued until the deceased’s death.

193. As to “circumstances warranting”, there was in any event, on any view, a “close personal relationship” between the deceased and Ms Sun. The test of whether there were “factors which warrant the making of the application” for the purposes of Succession Act, s 59(1)(b), is that, in addition to the mere circumstances which give her status as an eligible person under s 57(1)(f), she would be regarded as a natural object of the deceased’s testamentary intentions. ^[9] Here, Ms Sun and the deceased had cohabitated for some 20 years, and they were on any view in a de facto relationship for some of that time; her son lived with them for some years during that period; they shared overseas trips together; throughout that period she cared for him, including in later years during the deterioration of his physical and mental health, in times when it would have been difficult to do so; and to his knowledge she gave away a substantial part of her own assets to make provision for her son, in circumstances where she would reasonably have anticipated that she would remain accommodated by the deceased for the foreseeable future. In my view it can fairly be said that for the last two decades of his life no-one was closer to the deceased, and no one did more for his welfare, than Ms Sun. Factors warranting the making of her claim were manifest.

     9. Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Lodin v Lodin [2017] NSWCA 327 at [5]-[10] (White JA), [106]-[107], [113]-[119] (Sackville AJA).

191. Finally, minds might easily differ as to the appropriate order for provision in favour of Ms Sun. To my mind, whether the basis of Ms Sun’s eligibility is a subsisting de facto relationship or a close personal relationship makes no practical difference in this case: in either case, no one had a stronger moral claim on the deceased than Ms Sun. Some might have given less weight to the countervailing claims of beneficiaries who, though in poor circumstances, have had relatively little connection with the deceased and made relatively slight if any contributions to his welfare. Nonetheless, the order proposed by White JA is well within the generous ambit of the discretion as to what is proper provision for Ms Sun’s maintenance and advancement in life, and I agree with it.

192. I agree with the orders proposed by White JA.

**********

APPENDIX 1

18 Persons Entitled to the Distributable Estate

1. Michael Alan Chapman (the Executor); 1/3rd share (33.33%) of the net proceeds of sale of the Seaforth Property and residue,

2. Christine Chapman (former wife of the Executor); 2/21 share (9.52%) of the net proceeds of sale of the Seaforth Property,

3. Peter Chapman (son of Richard); 2/21 share (9.52%) of the net proceeds of sale of the Seaforth Property,

4. Richard Chapman (son of Richard); 2/21 share (9.52%) of the net proceeds of sale of the Seaforth Property,

5. Corrine Mulder (daughter of Richard); 2/21 share (9.52%) of the net proceeds of sale of the Seaforth Property,

6. Ranald Mannell (grandchild of Richard); 1/42 share (2.38%) of the net proceeds of sale of the Seaforth Property,

7. Peter Richard Mannell (grandchild of Richard); 1/42 (2.38%) share of the net proceeds of sale of the Seaforth Property,

8. Joanne Summers (grandchild of Richard): 1/42 share (2.38%) of the net proceeds of sale of the Seaforth Property,

9. Leah Gaye Mannell (grandchild of Richard), 1/42 share (2.38%) of the net proceeds of sale of the Seaforth Property,

10. Gopi Bellard (nee Andrews) (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property,

11. Bhavani Stone (nee Andrews) (grandchild of Richard), 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property,

12. Yamuna Brennan (nee Andrews) (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property,

13. Jai Andrews (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property,

14. Karna Varjita Das Chapman (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property,

15. Siddha Andrews (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property,

16. Peter Gareth Gardner Chapman (grandchild of Richard); 2/63 shares (3.175%) of the net proceeds of sale of the Seaforth Property,

17. Jake Gardner Chapman (grandchild of Richard); 2/63 shares (3.175%) of the net proceeds of sale of the Seaforth Property,

18. Brodie Alan Gardner Chapman (grandchild of Richard); 2/63 shares (3.175%) of the net proceeds of sale of the Seaforth Property.

Endnotes

Decision last updated: 26 July 2022