Sun v Chapman

Case •

[2021] NSWSC 955

•

04 August 2021

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Sun v Chapman [2021] NSWSC 955
Hearing dates: 19, 20, 21, 22, 23 April 2021
Date of orders: 4 August 2021
Decision date: 04 August 2021
Jurisdiction:Equity
Before: Emmett AJA
Decision:

Order that:

1. The summons filed on 14 January 2020 be dismissed.

2. The plaintiff pay the costs of the defendant, but reserve to the parties liberty to make written submissions on the question of costs no later than 14 days after the publication of these reasons and for each party to respond within a further 14 days.

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

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995 (NSW)

Interpretation Act 1987 (NSW), s 21C

Migration Act 1958 (Cth), s 417

Relationships Register Act 2010 (NSW), s 6

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

Cases Cited:

Chao v Minister for Immigration and Border Protection [2018] FCA 858

Texts Cited:

Nil

Category:Principal judgment
Parties: Wei (Rose) Sun (Plaintiff)
Michael Alan Chapman (Defendant)
Representation:

Counsel:
P Livingstone (Plaintiff)
M Bridger with H Breeze (Defendant))

Solicitors:
Wyatts Lawyers & Advisors (Plaintiff)
Bainbridge Legal (Defendant)
File Number(s): 2020/12509
Publication restriction: Nil

Judgment

Introduction

  1. The plaintiff, Ms Wei Sun, who is also known as Rose Sun (Rose), seeks a family provision order under s 59 of the Succession Act2006 (NSW) (the Succession Act) making provision for her maintenance and advancement in life out of the estate of the late Robin Alan Richard Chapman, who was known as Richard (Richard). Richard died on 2 February 2019, having made his last will and testament on 22 October 1996 (the Will). Rose’s application is opposed by the defendant, Mr Michael Chapman, the executor named in the Will (the Executor). Probate of the Will was granted to the Executor on 29 November 2019.

Richard’s Family

  1. Richard was married to Doreen Chapman until their marriage was dissolved in October 1974. There were seven children of that marriage, being Peter, Richard, Corrine, Graeme, Gay, Robyn and Brian. Graeme predeceased Richard and was survived by one child, Daniel. Gay also predeceased Richard and was survived by six children, Gopi, Bhavani, Yamuna, Jai Govinda, Karna and Swarup. Robyn also predeceased Richard and was survived by four children, Ranald, Peter, Joanne and Gay. Finally, Brian predeceased Richard and was survived by three children, Peter, Jake and Brodie.

  2. Following the dissolution of his marriage, Richard became involved in a de facto relationship with Ms Joy Roy, which extended until 1976, when Ms Roy relocated to Cairns. The Executor was born of that relationship and lived with Richard from the age of five until his marriage to his first wife, Christine (Christine) in 1996. The Executor is employed as a prison officer.

Richard’s Estate

  1. Richard’s estate at his death consisted of the following:

  • A property situated in the Sydney suburb of Seaforth (the Seaforth property), which was sold for $2,400,100 in July 2021.

  • money in Commonwealth Bank accounts: $120,569;

  • money in a BankWest term deposit: $51,585;

  • shares in IAG having a value of $3,444;

  • Toyota HiAce Van having a value of $2,000; and

  • Kia motor vehicle having a value of $5,000.

  1. The Will was handwritten on a printed form. It was clearly prepared without the assistance of any legal advice and its intended effect is not entirely clear. However, the parties to these proceedings and all persons who could possibly have an interest under the Will, depending upon how it is to be construed, have agreed on the manner in which the Will should be construed. Thus, it is agreed that the Will provided for the Seaforth property to be sold and the net proceeds of sale to be distributed, as to one third, to the Executor and, as to two thirds, equally among Christine and Richard’s other children, Robin, Peter, Brian, Richard, Gay and Corrine, with substitutionary gifts for the offspring of those of Richard’s children who predeceased him. On that basis, 18 persons are entitled to share in Richard’s estate as set out in Appendix 1 to these reasons.

The Relevant Legislative Framework

  1. Under s 3 of the Succession Act, a family provision order is an order made by the Court under Ch 3, in relation to the estate or notional estate of a deceased person, to provide from that estate for the maintenance, education or advancement in life of an eligible person. By the operation of s 57(1)(b) and s 57(1)(f), the term “eligible person” includes a person with whom the deceased person was living in a de facto relationship or in a close personal relationship, at the time of the deceased person’s death. Rose claims that she is either:

  • a person with whom Richard was living in a de facto relationship at the time of his death; or

  • a person with whom Richard was living in a close personal relationship at the time of his death.

  1. Under s 21C of the Interpretation Act 1987 (NSW) (the Interpretation Act), a person is in a de facto relationship with another person if, relevantly, they have a relationship as a couple living together. In determining whether two persons have a relationship as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that may be relevant in a particular case:

  • the duration of the relationship;

  • the nature and extent of their common residence;

  • whether a sexual relationship exists;

  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

  • the ownership, use and acquisition of property;

  • the degree of mutual commitment to a shared life;

  • the care and support of children;

  • the performance of household duties; and

  • the reputation and public aspects of the relationship.

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

  1. Under s 3 of the Succession 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. However, 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 for a fee or reward. In the case of a person who is an eligible person only by reason that the person was living in a close personal relationship with the deceased person at the time of the deceased person’s death, the Court must be satisfied that having regard to all the circumstances of the case, there are factors that warrant the making of the application for a family provision order.

Relationship between Richard and Rose

  1. The evidence-in-chief in the proceedings was given, for the most part, by means of affidavit. That means proved to be undesirable. Substantial parts of the affidavit evidence were inadmissible and certain of inadmissible parts were supplemented by viva voce evidence. English is not the first language of Rose and, in respect of parts of her viva voce evidence, she was assisted by an interpreter. The interpreter also translated Rose’s affidavits from English into Mandarin and Rose then confirmed to the interpreter that she understood the contents of the affidavits and that the matters set out in the affidavits are accurate.

  2. I did not find Rose to be a reliable witness. She was very much prone to making non-responsive comments and observations when purporting to answer questions. I formed the impression that she believed that certain matters would assist her case and was anxious to make comments and observations about such matters when she believed it would assist her case and was very reluctant to give answers that she thought might be harmful to her case. Rose did not give evidence of any specific recollection of relevant details and her evidence was replete with generalities. She regularly claimed that Richard was responsible for the preparation of documents that appeared to assist her case but was unable to give reliable specific evidence as to such documents. I shall refer to several instances below.

  3. The Executor’s evidence-in-chief was given by affidavit and he was cross-examined on behalf of Rose. His replies in cross-examination were somewhat terse and noncommittal in some respects. However, I consider that he endeavoured to give honest evidence and that his evidence was reliable. I prefer it to that of Rose, to the extent that their evidence was inconsistent.

Evidence of Rose

  1. Rose was born in December 1961, in the People’s Republic of China. She initially came to Australia under a business visa in 19**. She said that she was involved in a business involving chemical fibres and registered a company known as “Li Ling Leather Products”. It appears that she first lived in Canberra, although there was also evidence that she had an address at St Leonards, New South Wales at some stage.

  2. In her affidavit of 25 June 2020, Rose said that she first met Richard in July 1998, when she went on a trip with friends to the Perisher Valley in the Snowy Mountains, where they visited a caravan park. There was no evidence as to the location of the caravan park. Rose said that, while they were cooking meals at the caravan park, she met Richard who was on a trip by himself. She said that Richard introduced himself and, after talking for a bit, asked her for her address. She said that, since her English was not very good, she thought that she could learn English from Richard by exchanging letters. Those circumstances are slightly unusual but Rose was not challenged on the assertions.

  3. Rose said in her affidavit that Richard wrote letters to her after she returned to Canberra and that they exchanged letters for some time after that. She said that she did not keep the letters but kept a postcard sent to her by Richard in September 1998. The postcard said:

“Wish you were down here with me. Plenty of snow. Very cold.

Regards

Richard”

The front of the postcard consisted of a photograph of Perisher Valley. The postcard was addressed to Rose at an address in the Australian Capital Territory and was post marked 17 September 1998, Perisher Valley. The post card suggests that Richard was in Perisher Valley in September, some months after the time when Rose says she first met Richard. It is unclear whether Richard paid a second visit to Perisher Valley, and no explanation was given for keeping the postcard but not the letters.

  1. In a paragraph of her affidavit that was read without objection Rose, said that Richard wrote words in his letters to the following effect:

“I have a lonely life. Do you want to come to Sydney to be with me?”

Rose said in that paragraph that Richard also mentioned an advertisement that he had placed in his local newspaper looking for someone to assist him at home. She volunteered in the paragraph that she did not meet Richard by responding to one of those advertisements. It is curious that Richard would mention such a matter in a letter to Rose whom he had met once. The fact that Rose mentioned the matter at all gives rise to some doubts about her evidence, in the light of evidence from the Executor about the matter, who understood, that she did in fact respond to an advertisement placed by Richard.

  1. Rose said that she wrote letters to Richard in Chinese characters. She accepted that Richard did not read Chinese but said that he would have her letters translated. In her affidavit, Rose said that the English of the words that she wrote in Chinese characters were as follows:

“I like to go to Sydney as the weather is warmer there and maybe to study. But at the moment, I still stay in Canberra. Maybe one day, I will go to see you.”

In the witness box, Rose was invited to write the Chinese characters that she recalled sending to Richard. The interpreter translated the Chinese characters produced by Rose as follows:

“Dear Richard, is very happy to receive your letter. I hope one day I can see you in Sydney, to learn English from you. Currently, I have not decided whether I will go to Sydney immediately or not. Wishing you good health. Everything goes smoothly [sic].  Rose, xxx.”

  1. Rose was not cross-examined on the differences between the two versions of the alleged letter or the other matters concerning the alleged correspondence referred to above. However, all of those matters indicate that her recollection was not reliable.

  2. Rose said in her affidavit that, one day, Richard arrived in Canberra looking for her at her address. She said that Richard brought a bunch of flowers, which he gave to her, and that he drove her to Parliament House for lunch. She said that, during the lunch, he said words to the following effect:

“I am lonely. I want someone to look after me. Are you happy to come with me? We can look after each other. Think about it.”

Rose said:

“[Richard] repeatedly said, ‘Maybe’ to try to ask me to come.”

It is not clear what that meant. Rose said that, after he returned to Sydney, Richard wrote to her again and that in his letters he said “please come”. The incident seems somewhat unlikely.

  1. Rose said that, a few weeks later, she moved to Sydney to take up a job caring for children at their home. She said that she was in that position for a couple of weeks but did not like it and that, in around October 1998, she called Richard and said:

“I am in Sydney. Can you please pick me up.”

Rose said that Richard replied “I am very happy” and picked her up and drove her to the Seaforth property.

  1. Rose said that she moved in to live with Richard at the Seaforth property and that, after that, Richard showed her around Sydney, taking her to beaches and clubs. She said that they went to Rose Bay, Palm Beach and Dee Why and sometimes took the ferry.

  2. The sequence of events briefly outlined above seems somewhat unlikely. The postcard was sent in September 1998. It is unclear when the alleged correspondence was sent. The visit to Rose in Canberra and the subsequent move by Rose to Sydney and the weeks of caring for children in Sydney all occurred within a fairly short space of time, culminating in the alleged call by Rose to Richard in October 1998 asking Richard to pick her up. The allegations are not convincing. However, they were not tested to any extent in cross-examination.

  3. In around March 1999, Rose obtained a job washing clothes in a laundry where she began work at 5.30 am in the morning. She said that Richard would drive her to work and pick her up. In around December 1999, Rose began working in a job as a waitress at Harbord Diggers RSL Club, which Richard helped her to find. Rose said that Richard introduced her to people at the Club by saying:

“This is my partner. Do you have some work that she can do.”

  1. In about 2000, Rose began full-time work at Manly Hospital. In around 2001 or 2002, Rose undertook studies at TAFE to qualify as a sterilisation technician. Those studies were paid for by Manly Hospital. Although Rose continued to work full time at Manly Hospital, she retained her job at Harbord Diggers RSL Club, part-time for over 10 years. She said that Richard was not pleased when she chose to leave the job with the RSL and that he said:

“This job is a good job. I found it for you. Why do you not want to stay in it?”

Rose said that she replied:

“It is too much for me with my other work. I want more time at home. I do not have enough time besides work.”

  1. Rose asserted in her affidavit that, over the years, outside of work hours, she would spend time with Richard, when they would go to beaches, watch movies, eat at restaurants and cafes and do shopping together. She said that they would go together to Balgowlah RSL Memorial Club nearly every week and would also attend other clubs together, including the Dee Why RSL Club and Harbord Diggers Club. She said that they would often spend Anzac Day at the North Balgowlah RSL Club. Photographs of Rose and Richard said to be taken at North Balgowlah RSL Club on Anzac Day in 2017 and Anzac Day in 2018 were in evidence. The photographs show Rose and Richard sitting together without other company.

  2. Rose also said in her affidavit that she and Richard went on overseas trips and cruises together and that she and Richard enjoyed cruises. The evidence included photographs of Richard and Rose taken on a cruise to Hawaii in April 2017. Rose said that the purpose of the trip to Hawaii was to visit the family of Richard and that on the cruise they shared the same room and bed. Photographs taken in the course of the trip, showing Rose with members of Richard’s family in Hawaii, were also in evidence.

  3. Rose said that she and Richard went to Singapore about three times, to Thailand twice, to China about five times and to Bora Bora and Hawaii. Rose said that she and Richard shared the same room on all of the trips and on most occasions shared a queen-size or double bed. Rose said that she and Richard would share the expenses of their trips and that sometimes she would pay the cost of the trips and at other times Richard would pay the cost of the trips.

  4. Rose said in her affidavit that she and Richard visited China together so that she could visit her family and friends in China. She said that she introduced Richard to her family and her friends in China and that Richard met her parents, uncles and aunts, brothers and sisters who live in the People’s Republic of China. The evidence included some four photographs that show Richard and Rose with various people of Chinese ethnicity. The photographs were said to have been taken during visits to China in September 2009 and September 2010.

  5. Rose also said in her affidavit that members of her family came to Australia to visit her and Richard. The evidence included photographs showing Richard and Rose and her parents said to have been taken during a visit to Australia in October 2006.

  6. Rose did not adduce any evidence from her parents concerning their observations of her relationship with Richard. The Executor contends that an adverse inference should be drawn by reason of the absence of such evidence.

  7. Rose also said in her affidavit that in 2015 she and Richard visited Richard’s brother, Peter, in Narrabri. The evidence included a photograph of Richard, his brother and Rose said to have been taken during the visit to Narrabri. Rose also said that she and Richard went on road trips around Australia. She said that in 2016, they spent Christmas together in Lightning Ridge, New South Wales where photographs were taken, which were included in the evidence. Rose said that she and Richard travelled by road to visit Richard’s daughter-in-law and grandchildren in Queensland. Photographs of Rose and Richard with Richard’s daughter-in-law in 2016 and 2017 were in evidence.

  8. Rose said that every year she and Richard sent joint Christmas cards to family and friends. She said that they created their own Christmas cards, which would often include photographs of themselves. She said that Richard encouraged her to write in Chinese characters on the cards. Rose said that she and Richard also received Christmas cards from family and friends addressed to them jointly. Cards addressed “To dear Richard and Rose”, or “Dad and Rose” and “Dear Dick and Rose” were in evidence. Rose said that Richard sometimes gave her a card on her birthday. A birthday card containing the following handwriting was in evidence:

“To Rose

Happy birthday

All my love

Richard”.

Rose also said that they gave each other small presents on their birthdays. On one occasion, she said, Richard gave her a ring, which he said cost $10. Rose said that they joked about that matter.

  1. Rose’s affidavit of 25 June 2020 included the following paragraphs:

“38.   When Richard introduced me to his friends, he would say in words to the effect: ‘This is Rose, my partner.’

39.   I heard Richard's friends sometimes say to him in words to the effect: ‘You have a young and beautiful wife.’ He looked very happy when they said this.

40.   During our relationship, Richard and I said: ‘I love you’ to each other. We also said this after our arguments.

41.   When I returned home after finishing work late on some days, Richard and I would greet each other with a hug. We held hands when we went out and on holidays.

42.   Several years ago, Richard and I discussed marriage. Richard said to me in words to the effect: ‘Do you want to marry?’ However, I felt that we did not need to get married. I knew that he loved me and I loved him. I also did not think that his children would be happy if we got married. I said to him in words to the effect: ‘No, we do not need a piece of paper. It will not change anything.’”

Those paragraphs were read without objection and Rose was not challenged in cross-examination on any of those assertions.

  1. Richard and Rose had a joint bank account with the Commonwealth Bank from November 1998 to around 2014. Only statement No 83 for that account, for the period 8 February 2014 to 7 March 2014, was in evidence. Rose gave no evidence as to the circumstances surrounding the opening of the account or the closing of the account.

  2. The statement in evidence showed a debit for a transfer to Budget Travel in the sum of $790 on 11 February 2014. It also showed two debits for the payment of a visa card debt, which appears to have been Richard’s. It also showed two credits in the sum of $118.20, which, it appears, were for a carer’s allowance paid by the Commonwealth in respect of Richard. The carer’s allowance was credited to the joint account while that account was on foot. After the account was closed, it appears that the carer’s allowance was paid into an account of Richard with the Commonwealth Bank. There was no evidence as to any application that gave rise to the payment of the carer’s allowance.

  3. Rose gave evidence that, for about 15 years until 2017, she and Richard accommodated Japanese students at the Seaforth property through “Homestay Access”. She said that they would sometimes drive them to school or university and that she would cook for the students. Rose said that the funds received from that enterprise were paid into the joint account and that after the joint account was closed, the funds were paid into an account of Richard’s.

  4. Rose said in her affidavit that some household bills were addressed to her and Richard jointly. The only evidence of that was an invoice for a motor vehicle service, a renewal slip for a compulsory third party insurance in respect of a motor vehicle and an electricity account addressed to Rose and Richard jointly. No evidence was given as to the motor vehicles in question.

  5. In Rose’s affidavit of 25 June 2020, she said that, in the early relationship between her and Richard she would usually complete tasks such as vacuuming and mopping and Richard would complete tasks such as attending to the garden and lawn mowing. Rose said that she did almost all of the cooking and that Richard rarely cooked, only cooking a few times over the years. Rose said that she and Richard would go shopping together and that sometimes she used her card to pay for the groceries and at other times of Richard would use his card. She said that they frequently went shopping on Saturday for many years but that sometimes she did the shopping for herself and Richard would stay at home waiting for her or he would wait in the car for her.

  6. Rose said that, as Richard got older, it was harder for him to do housework and that he received some home care services that were subsidised by the government. She said that she paid some of the gap payments for those home care services. A statement of Rose’s account with the Commonwealth Bank for the period 17 June 2017 to 16 December 2017 showed four debits of $5 or $10 to Calvary Homecare.

  7. Rose asserted in her affidavit that Richard’s children did not come to help much over the years. Rose said that she saw Michael, the Executor, visit Richard only once or twice a year and that he visited more than Richard’s other children. That assertion is disputed and I shall refer below to the evidence of the Executor.

  8. Rose said that, after Richard became quite sick in 2017, he needed more care and it was harder for her to cope with that by herself. She spoke to Corrine and asked whether Corinne could come and help and whether they could share the load because it was hard. Rose said that Corrine told her that she would speak to Richard and would come later when she had time. Rose said that Corrine did not come to help but came to visit about four times from 2017 until Richard’s death.

  9. It appears to be common ground that Richard and Rose lived at the Seaforth property from October 1998 to the date of Richard’s death. Rose had her own bedroom. However, she said that she would also sleep in Richard’s room during some nights. She said that for about four or five years from about 1999 she and Richard had a sexual relationship and were intimate about twice a week.

  10. Richard said that, over the years, she continued to sleep occasionally in Richard’s bedroom instead of her own or they would spend time talking in bed together in Richard’s room before she would go to her own bedroom to sleep. She said that she slept in her own bedroom more in the later years of her relationship with Richard because Richard snored loudly.

  11. Rose said that as Richard became older and sick he became very cranky at times and they would have arguments. Rose said that during those arguments they yelled at each other and swore at each other, that she swore at Richard and that Richard called her a “bitch”. Rose said that, even though they had arguments, she and Richard stayed together for 20 years until the date of his death and that she never had another relationship with anyone else during that time. She was not challenged on that assertion.

  12. Rose asserted that, whenever Richard was in hospital, she spent time with him. However, she was employed full time during the whole of the period and, while she may well have visited Richard regularly while he was hospitalised, it is apparent that she did not spend extended time with him while he was in hospital.

The Evidence of other Witnesses called by Rose

  1. Rose relied on the evidence of several additional witnesses in support of her contentions that she and Richard were living in a de facto relationship. They were Mr Jeffery Garrick, who lived in a house diagonally across the road from the Seaforth property, Ms Jing (Connie) Chen, who has known Rose for over 40 years, having first met while they were both in China, and Mr Xin (Peter) Zhang, who is Rose’s son.

  2. Mr Garrick said that he met Rose approximately 15 to 20 years ago and regularly exchanges simple pleasantries with her. However, he did not speak to Richard when he was alive. Mr Garrick said that he frequently carries out carpentry work in his carport with the garage door open and, from that vantage point, can hear and see what goes on across the street in the Seaforth property. He said that he often heard Richard yell orders at Rose, who would sometimes say to Mr Garrick words to the effect:

“I don’t like him when he is like this”.

Mr Garrick also said that there were occasions when he saw Rose and Richard leaving the Seaforth property and walking around the streets holding hands. He occasionally saw them at the local shops, including the chemist and grocery store in Seaforth, when they would usually be holding hands.

  1. Mr Garrick said that Richard’s children moved out of the Seaforth property many years ago and that he rarely saw Richard’s children visit the Seaforth property. He said he saw the Executor visit the Seaforth property on a couple of times, when wearing his prison officer’s uniform.

  2. Ms Chen came to Australia in 1985. At that time, she could speak English and could write English a little. She said that she met Richard in 1999 when Rose introduced her to him. Ms Chen said that, over the years thereafter she visited Rose and Richard at the Seaforth property for lunches and Rose and Richard came to her house together on other occasions. Ms Chen said that when she went to visit Rose and Richard and stayed for a meal, the meal was usually cooked by Rose. She said that Rose told her that Richard cooked breakfast for her.

  3. Ms Chen said that during summertime there were occasions when she went to Clontarf Beach with Richard and Rose, when Rose cooked barbecues at the beach. She said that when she went on outings with Richard and Rose, she sometimes saw them holding hands and that they also sat close together when they visited her home. Ms Chen said that she and Rose often spoke on the telephone and that during such conversations, Rose referred to outings that she and Richard had together at clubs or the beach. Rose told her that she and Richard frequented their local clubs and that they enjoyed going to the club to eat steaks and participate in raffles and draws. Ms Chen said that she never heard Richard refer to Rose as his “carer”.

  4. Ms Chen said that she always has lunch with Rose at the time of her birthday on 29 December and that, when Richard was alive, he would always accompany them at the RSL Club. Ms Chen said she did not visit Rose and Richard at the time of Richard’s birthday but that she always sent a birthday card to Richard.

  5. Ms Chen said that Rose showed her pictures taken while she and Richard were overseas in places like Singapore, China and Hawaii and that Rose told her about their holidays. She said that Rose appeared to be very happy after she and Richard came back from a holiday and said that she and Richard loved going on holidays.

  6. Ms Chen said that, when Rose first moved to Australia, she began sending Christmas cards to Ms Chen. She said that Richard usually wrote in English on the cards and Rose usually wrote in Chinese and that most of the cards included a photograph of Rose and Richard together. Ms Chen said that although she does not keep cards, she found one amongst her belongings, a copy of which she annexed to her affidavit. The card contained a handwritten message saying:

“All the best for you James and family for Xmas and New Year hope all are well.”

Richard xxx”.

Handwritten Chinese characters appeared below that message and below those characters, the card was signed “Rose xxx”. Ms Chen said that James is her husband and that he accompanied her on her visits to the Seaforth property. James did not give evidence.

  1. Ms Chen said that, when Richard and Rose had a really big argument, Rose sometimes asked to stay at Ms Chen’s place, saying words to the following effect:

“Richard and I had a big argument. Can I stay with you?”

Ms Chen said that she would allow Rose to stay with her on those occasions. She said that, after a day or two, Richard always called her and asked for Rose to come back. She said that Richard said words to the effect of the following:

“I need her to come back and I need her to look after me.”

Ms Chen said that in Richard’s later years, Rose said words to her to the following effect:

“Richard is not happy if I visit you by myself. He wants to visit people together with me.”

  1. Peter Zhang, who was born in China, first met Richard when he moved to Australia in 2002. He said that Rose and Richard picked him up from Sydney airport when he arrived in Australia and he then lived with Rose and Richard at the Seaforth property while he completed high school at Frenchs Forest. He moved out when he turned 18 in order to live with friends in the Chatswood area and to attend university.

  2. Peter said that Richard “was like a father figure to me” and that he was always nice to him. Peter said that Richard took him to the school band and told the band co-ordinator that:

“Peter is a really good oboe player. He should be part of the band”.

Peter said that Richard and Rose attended the band’s performances together.

  1. While he lived with Richard and Rose, Peter shared dinner with them almost every night. He said Richard would discuss his schooling with him and would ask how his day was and how work was. Peter said that Richard taught him how to drive a motor vehicle with manual gears. Richard also encouraged him to play sport.

  2. Peter said that in 2002 or 2003 while still living with Rose and Richard he sometimes went with them when they went out together. He said that on one occasion he was in the waiting room of a medical centre with Richard who was waiting for an appointment with the doctor. The nurse asked Richard whether someone was picking him up and he replied: “yes my partner is picking me up”, referring to Rose.

  3. Peter also said that on another occasion he went with Rose to the office of the Roads and Transport Authority. Because Richard had a problem with his knee, he did not accompany them. The purpose of the visit was to renew the registration of Richard’s motor vehicle. When asked by the staff member at the office why Rose was renewing the registration of the vehicle that was not registered in her name, she replied “he is my partner”.

  4. Peter said that, while he was living with Richard and Rose, he went with them on some occasions when they visited the local RSL club. He said that Rose and Richard would sometimes play poker machines together.

  5. Peter said that, while he was living with Richard and Rose, he observed that Rose shared the main bedroom with Richard on most nights but that she also had a small spare room next to the main bedroom that she would sometimes use. He said that Richard slept in late and complained about being woken up in the morning. He said that his bedroom was directly across the hallway from the main bedroom and he saw them go to bed together at approximately 7.30 pm to watch television.

  6. Peter said that Richard and Rose sometimes became involved in arguments when he was living with them. He said that one argument that they had regularly was about Rose’s driving which sometimes upset Richard. He said that Richard often made comments while Rose was driving and occasionally Rose would pull over and Richard would take over the driving.

  7. Peter said that when he was living with Rose and Richard he saw them share the household duties, that Rose did most of the laundry and vacuuming while Richard did the gardening and took care of the pool and mowed the lawn. He said that Rose usually did the grocery shopping and that Richard accompanied her to the supermarket approximately half of the time. Peter said that when he did not go to the supermarket with Rose, he often gave her a shopping list of items such as milk or steak “that he needed”. Peter said that Rose took Richard to appointments with doctors.

  8. Peter said that, after moving out, he visited Richard and Rose at the Seaforth property on special occasions, such as Mother’s Day or whenever he was nearby. He said that he visited about four or five times a year and that, during his visits, he shared meals or a cup of tea with them.

  9. Peter said that, after he left the Seaforth property, his mother told him during telephone calls about the times when she and Richard went out to restaurants or clubs or to the beach. He said that she told him about occasions when she and Richard won money on the poker machines and they “caught up with some of Richard’s friends”.

  10. Peter also said that he often drove Richard and Rose to the airport or picked them up from the airport or from the cruise ship terminal when they went on overseas trips. Peter said that Richard would ask that he do so by saying words to the effect:

“Do you have time to drive your mum and me to the airport”.

Peter said that, after they returned, Richard would also give him presents, such as a watch that he bought in Thailand.

  1. Peter said in more recent years, when Rose and Richard had “really big arguments”, Rose would sometimes come and stay at Peter’s home for a couple of days. He said that, on those occasions, Richard would call him and explain what had happened from his point of view and asked him to tell her to come back. Peter said that, from about eight years ago, Rose sometimes said to him that she was going to move in with him and was not going back. He said that Richard would call him and say words to the effect:

“Please ask Rose to come back”.

Peter said that a few years ago he went to visit Richard to check up on him and that Richard appeared very sad and had tears in his eyes. He said that Richard said to him 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.”

Peter said that during those arguments Rose never stayed at his house for more than a few days.

  1. In 2016, Peter moved to the Central Coast and he presently lives with his wife in a property at Kariong owned by Rose. He pays rent of $650 per week. Peter and his wife pay bills for services such as electricity, gas, water and council rates.

  2. Peter has received financial help from Rose, who contributed to the cost of his wedding in February 2018. Rose also helped him to pay his higher education loan programme debt of about $67,000. I shall refer below to further evidence in relation to the financial support given to Peter by Rose.

Documentary Evidence

  1. Documentary materials were produced on subpoena issued by one or other of the parties. The earliest such material concerned an application made on behalf of Rose for a visa under the Migration Act 1958 (Cth) produced by the Department of Veterans’ Affairs. In addition, records of several admissions of Richard to hospital were in evidence. Finally, Richard and Rose both made complaints about each other to the police and police records of those complaints are in evidence. Sometimes the police records refer to Richard as the complainant and on other occasions the records refer to Rose as the complainant. I shall deal with those categories of documentary materials separately.

Visas and Citizenship

  1. On 26 June 2001, the Minister for Immigration and Multicultural Affairs wrote to Rose saying that he had decided to exercise his power under s 417 of the Migration Act 1958 (Cth) to grant to Rose “a subclass 820 Spouse Visa (temporary)”. The Minister’s letter said that an officer of the Department would be contacting Rose shortly with details about evidencing the visa grant.

  2. On 2 July 2001, Rose received a letter from the Department of Immigration and Multicultural Affairs which referred to the letter from the Minister of 26 June 2001. The letter said that, if Rose wished to have her current valid passport endorsed with evidence of her visa or if she intended to travel overseas she should present her passport and the letter to the Department to have the visa evidenced in the passport. The letter then said that, to obtain permanent residence, Rose would need to lodge an application for “a Spouse visa subclass 801” and that permanent residence was normally granted two years from the date of lodgement of the application provided the applicant continued to satisfy the criteria applicable to the visa for which application, was made. The Department said that, under the visa issued to Rose, she had unlimited or unrestricted permission to work and that the visa was valid for multiple travel.

  3. On 23 July 2001, Rose and Richard wrote jointly to the office of Tony Abbott MHR saying:

“This letter, I hope will convey our thanks and appreciation to the wonderful work that you have done towards the positive result you have achieved with the successful result of Rose Sun and myself as sponsor with our application to the D.I.M.A. for Rose’s Permenent [sic] Residence and I hope Australian Citizenship.”

That letter was acknowledged by Mr Abbott’s office by letter of 24 July 2001.

  1. Rose asserted that Richard at least helped her with the relevant documents. However, the evidence concerning these matters was vague and unconvincing.

  2. It appears that Rose subsequently obtained Australian citizenship. The circumstances in which she applied for citizenship are vague and uncertain. However, two statutory declarations are in evidence, which appear to have been prepared in relation to Rose’s application for citizenship. In one statutory declaration, bearing the date 10 June 2003, Richard declared that he was the sponsor of Rose who was being assessed for the grant of a subclass 801 permanent visa. The declaration said as follows:

“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.”

  1. Rose also made a statutory declaration bearing the same date saying that she was employed at Manly Hospital as catering staff and was making an application for assessment to be granted “a subclass 801 permanent visa”. The declaration said as follows:

“Robin (Richard) Chapman (my sponsor) and I have been living together for the past five years in an ongoing partner relationship. We hope that in the near future we will be making arrangements for our wedding. I am very attached to Robin. We met on a holiday at Perisher Valley some four and half years ago. We are very compatible in everything we do such things as dining together with friends, social events and outings etc. We have enclosed photos to verify our attachment and statements from our friends to substantiate my application for subclass 801 permanent residence visa. We are very happy and I do hope and pray that the Immigration Dept. will make its decision positive and grant my sub class 801 permanent visa.”

  1. The circumstances in which the two statutory declarations were completed was not the subject of evidence. There was no evidence as to whether and, if so, when, Rose obtained a permanent residence visa. Nevertheless, the statutory declarations are positive evidence in favour of a finding that, at least in 2003, Rose was a person with whom Richard was living in a de facto relationship. Whether it leads to the conclusion that, at the date of the death of Richard, Rose was living in a de facto relationship with Richard is a different question altogether.

Department of Veterans’ Affairs

  1. Richard had served in the Royal Australian Navy and was entitled to a pension. Rose said that, in about 2018, Richard said words to her to the following effect:

“We need to apply for a DVA partner pension. You can then stop working and stay at home to look after me full-time.”

Rose said that Richard then prepared “the application and forms”. However, neither an application nor a form concerning a “DVA partner pension” was in evidence. Rose was cross-examined in relation to the assertion and her responses were anything but convincing. I am not persuaded on the balance of probabilities that Richard prepared any document in relation to a pension from the Department of Veterans Affairs.

  1. In that regard, further communications with the Department are informative. The records produced on subpoena by the Department that Veterans’ Affairs include a document entitled “Request Details”, which records that on 17 July 2018 Rose had made a request to the Department in relation to Richard. It appears that the document records a request by Rose to be appointed as Richard’s representative. The document recorded a number of questions and answers relevantly as follows:

What is your relationship to the client?

Defacto

What is the client’s personal situation?

The client is still able to make their own decisions but needs or wants help with DVA matters

What type of representative do you want to be appointed as?

Permitted to act & enquire

For what time period would you like to represent the client?

Indefinitely

Are you already recognised by DVA and now want online access?

Yes

Are you a DVA client, agent or trustee who receives payments for yourself or another client?

No

Rose was unable to give any satisfactory evidence about the making of the application.

  1. On 19 July 2018, the Department of Veterans’ Affairs wrote to Rose advising that the Department had received an application for Rose to be appointed as “Enquirer (Permitted to Act) for Robin Chapman”. The letter said that, before the application could be considered, further information and supporting documents needed to be provided. The further information required included “Client Consent or Evidence of Incapacity”.

  2. On 28 August 2018, the Department wrote to Rose referring again to the application for her to be appointed as “Enquirer (Permitted to Act) for Robin Chapman” and saying that further information and supporting documents need to be provided. The letter said that the form received by the office was incomplete since it must be signed by the client. The incomplete form was returned for Richard to sign and date. It is unclear whether Richard ever signed such a consent.

  3. On 8 February 2019, the Department of Veterans’ Affairs wrote to Richard to advise him that his service pension had been reduced, with effect from 10 December 2018. The letter relevantly said as follows:

“Please check the attached list of income and assets carefully …

Details of your fortnightly payments are provided in the Payment Information sheet attached to this letter. …

As your service pension is assessed under the income test, some assets not affecting your rate of service pension have not been included in the attached list of income and assets …”

The “Payment Information sheet” attached referred to a total fortnightly payment as at 14 February 2019 of $846.90. The “Income and Assets Attachment” set out details of financial assets of Richard having a total value of $154,175.48. Under the heading “Employment Income”, the attachment said as follows:

Owner

Description

Gross Income

Defacto

NSW HEALTH SERVICE – HORNSBY HOSPITAL

$2,647.12

The documents included a statement as follows:

“You currently receive service pension at less than the maximum rate because your income is above the current threshold.

You are obliged by law to tell us … if your combined gross income from all sources increases above $2,795.80 per fortnight or your combined assets increase above $802,000.00. This will ensure that your service pension is paid at the correct rate.”

  1. On 22 February 2019, the Department of Veterans’ Affairs wrote to the Executor relevantly saying as follows:

“Please accept my condolences on the recent death of Mr Chapman. I regret the need to write to you at this time. Mr Chapman’s surviving spouse Ms Wei Sun may have received a letter from the Department of Veterans’ Affairs (DVA) following the death of Mr Chapman, which advised her that she would be contacted if there were any outstanding DVA matters.

I am writing to the Executor of the Estate regarding an outstanding matter in relation to the service pension paid to Robin A Chapman.

Mr Chapman’s service pension may have been overpaid for a period in the past. This possible overpayment was being reviewed prior to the death of Mr Chapman.

…

The Department will contact the Executor as soon as the review has been completed to advise of the outcome and any action that may be required.

…”

  1. On 1 April 2019, the Executor’s solicitors wrote to the Department with reference to a letter dated 20 March 2019. That letter is not in evidence. The Executor’s solicitors noted that in the correspondence the Department had advised that there had been an overpayment of Richard’s service pension and that Rose provided the Department with documents to inform that determination. The letter asked for a copy of the documents.

  2. On 11 June 2020, the Department wrote again to the Executor. After referring to the Department’s letter of 22 February 2019 regarding investigation of a possible overpayment of Richard’s service pension, the letter relevantly said:

“I am now writing to inform you that [Richard’s] pension has been overpaid.

Since 2000, [Richard] was being paid at the single rate of service pension, until 9 December 2018 when recent documents provided by his de facto, [Rose] confirmed that [Richard] and [Rose] had been in a partner relationship since 2002.

When assessed as partnered, service pension is calculated on the combined income and assets of each partner, regardless of which person actually receives the income or owns the assets. [Richard’s] pension was, therefore, reassessed at the partnered rate, taking into account [Rose’s] income from employment effective 1 July 2003 resulting in an overpayment of service pension.

The overpayment to the estate of [Richard] amounts to $186,883.29 which is due and payable to the Commonwealth.”

  1. The circumstances of Rose’s communications with the Department of Veterans’ Affairs were not the subject of evidence. It is of significance that the question of whether Richard was entitled to a single rate of service pension was raised by Rose only shortly before the death of Richard.

The Relationship Certificate

  1. Rose relied on a relationship certificate (the Relationship Certificate) apparently issued by the Registrar of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1995 (NSW) on 21 January 2019, only weeks before Richard’s death. Under s 6 of the Relationships Register Act 2010 (NSW) (the Relationships Act), an application for registration of a relationship may be made in the form approved by the Registrar of Births, Deaths and Marriages. An application must be accompanied by a statutory declaration by each person in the relationship. The statutory declaration by each person must state the matters set out in s 6, which include statements that:

  • the person wishes to register the relationship;

  • the person is in a relationship as a couple with the other person; and

  • the person is not in a relationship as a couple with a person other than the other person.

  1. Rose contends that the act of registration under the Relationships Act was significant, as evidencing the fact that Richard considered himself to be in a de facto relationship with her at that time. She asserts that it is powerful evidence that the relationship did not evolve from partner to carer in the years following 1998. That would be so, if it were to be accepted that Richard participated in the steps taken to register and obtain the Relationship Certificate. While Rose claimed that Richard had a part in completing documents that led to the issue of the Relationship Certificate, the documents were not in evidence.

  2. The Executor regarded the relationship between Richard and Rose towards the end of Richard’s death as “very turbulent” with multiple occasions of police intervention, as indicated below, and said that Richard complained about Rose on almost every occasion that he saw him. The Executor would have expected Richard to tell him if he had any intention of registering his relationship with Rose as a de facto relationship but Richard did not ever tell him that he had any such intention. Accordingly, the Executor was surprised to find that the relationship had been registered and considered the registration as “very unusual” in the context of the increasing complaints made to him by Richard. In the circumstances, I consider that there is real doubt as to whether Richard had much to do with the obtaining of the Relationship Certificate or in the preparation of documents that led to the issue of the Relationship Certificate.

  3. In any event, the Relationship Certificate is not conclusive as to the question of whether Rose and Richard were living in a de facto relationship or in a close personal relationship at the time of Richard’s death. Registration under the Act is not akin to marriage. Rather, registration is no more than a self-assertion that a relationship exists. [1] Assuming, notwithstanding the absence of evidence, that Richard made a statutory declaration containing such statements and that the statements are true, that may well be evidence of Richard’s state of mind at the relevant time. However, it does not constitute evidence of facts that are necessary for the making of a finding for the purposes of the Succession Act. I do not regard the Registration Certificate as particularly persuasive.

Hospital Admissions

1. See Chao v Minister for Immigration and Border Protection [2018] FCA 858 at [18].

  1. On 10 December 2018, Richard consulted Dr Ian Tang, a physician at Greenwich Hospital. Dr Tang reported that he saw Richard with a presumed diagnosis of “a metastatic upper GIT malignancy”. He recorded that he did not have any details regarding the condition of Richard and that “Rose his partner” indicated that he was “not for” surgery or systemic therapy. Dr Tang reported that “Rose has to assist him with walking all the time”. Dr Tang referred to a psychiatric review in January 2018 that Richard’s view was that “Rose should be looking after him more”.

  2. Dr Tang’s report also said as follows:

“Lives with Rose, I did not ask but I assume Rose’s parents live with them as they were extra beds. [Richard] was in the Navy during WW2 for 9 years … Rose used to work at Manly Hospital but now works full time at Hornsby. He is largely by himself during the day.

A nurse visits weekly and he has a DVA funded OT review, as the OT required a medical referral, Rose asked me to provide one which I have done. Rose asked if I could become his primary doctor and do home visits for review and medication scripts. I explained we are unfortunately a consultative service and our role is to assist the GP in controlling his symptoms.

[Richard] told me point blank without any prompting that he does not want to go to a nursing home.

…

Rose later took me aside and told me that [Richard] needs to go to a nursing home as she could not cope with his care needs. [Richard] 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 the few weeks of leave but will have to go back to work soon.”

  1. The reference to Rose as the “partner” of Richard may have some significance. However, I would infer that was the way in which Rose described herself to Dr Tang. Otherwise, the note by Dr Tang does not suggest a de facto relationship between Richard and Rose.

  2. A discharge summary by Royal North Shore Hospital records that Richard was admitted on 10 January 2019 and discharged on 17 January 2019. The summary recorded that Richard had presented to the hospital “for assessment due to carer concerns” and said as follows:

“Carer stress arising from his increasing physical needs & behaviour difficulties/aggression on a background of long standing difficult behaviour, mental health issues and cognitive decline.”

  1. The summary also recorded the following:

“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.

…

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 [Richard] 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.”

The frequent reference to Rose as “ carer” may be equivocal in circumstances where she is also referred to as “partner”.

Police Records

  1. The material produced by the police indicates reasonably frequent involvement of police in the domestic affairs of Richard and Rose between 2014 and 2018. The material records complaints both by Richard and Rose.

  2. A report created on 6 April 2014 records an incident on 5 April 2014 as follows:

POI [Rose] and the VIC [Richard] have been living together at the above address for about 14 years. [Rose] is a companion and a housekeeper for [Richard] they have never been in an intimate relationship. … [Richard] and [Rose] have been residing together for the past 14 years AA. [Richard] states that [Rose] is a companion and a housekeeper. [Richard] met [Rose] whilst on a ski trip as [Rose] was ready to go back to China on her visa. However [Rose] gained temporary residence in Australia and moved in with [Richard]. [Richard] states that about 9pm on 5/4/14 [Rose] got angry at [Richard] for no real reason and threw some papers around and knocked over still in his bedroom. [Richard] states that this is not the first time [Rose] has had a random outburst of anger. Some weeks ago [Rose] could not get her own way and an argument erupted and so [Rose] spat on [Richard] twice. [Richard] told [Rose] that she should not behave like that and that he should report her to the police and apply for an AVO. [Richard] advised police that there were several incidents, however he could not remember them all and due to it being late at night and his age [Richard] did not want to provide police with a statement.

  1. A report created on 23 February 2016 records an incident on that day as follows:

“The VIC [Richard] and P/N [Rose] reside together in Seaforth and the P/N [Rose] acts as a carer for the VIC [Richard]. The VIC [Richard] disclosed that previously the pair have had an intimate relationship. … MOST RECENT INCIDENT: The VIC [Richard] Chapman and the P/N Rose reside together and [Rose] acts as a carer for [Richard]. They have resided together for six years. On Monday 22nd February 2016, [Richard] and [Rose] were at their home and [Rose] was packing a suitcase for a trip to Hong Kong. When [Rose] was packing her suitcase, [Richard] noticed a box of chocolates she was packing and he told that she cannot take them through Customs. The pair got into an argument until [Richard] grabbed the box of chocolates and hid them from [Rose] in the garage. [Richard] called police on Tuesday the 23rd February 2016 in which police attended his address to speak to him about the matter. [Richard] told police that the pair have a history of arguments and wanted advice from police. Police informed [Richard] that if he felt in fear of [Rose], he should contact police immediately. [Richard] seemed satisfied with the advice from police ...”

  1. A report created on 27 June 2016 records the following:

“The VIC [Rose] and P/N [Richard] reside together at the above address … for approx. 6 years. The VIC [Rose] and the P/N [Richard] are not currently in an intimate relationship, although [Richard] suggested that they had previously been in an intimate relationship many years ago. [Rose] is now the primary carer for the [Richard] and completes the majority of the household duties .… MOST RECENT INCIDENT: … on Monday the 27th of June 2006, the [Richard] and [Rose] with the above LOC, eating their dinner while sitting at the dining room table in the main living area of the dwelling. . An argument ensued between the two as a result of the [Richard] not being satisfied with the meal that the [Rose] had prepared for him. .[Richard] argued that all he wanted to eat was “Australian food”. This caused [Rose] to become frustrated with [Richard’s] lack of appreciation and she started arguing back with him. [Richard] has stood up to leave the table and while doing so, he has knocked his dinner plate off the table in frustration. This has caused the dinner plate to smash on the ground, he has then proceeded to go to his bedroom and get into bed. [Rose] has contacted police. . Police attended the LOC about 7:25pm and spoke with [Rose] and [Richard]. [Rose] told police that she was sick and tired of [Richard] complaining about the food that she makes him and that she did not want to be his carer anymore. [Richard] spoke with Police and he also told Police that the argument had ensured over what [Rose] had made for dinner. .Both parties were informed that if they could not live together in harmony, it may be best if they no longer reside together. [Rose] was happy with the advice given and for Police attendance. She stated that she would look into alternative residential arrangements. …”

About two months before he died, Richard asked the Executor whether he and his wife had furniture and said that, if they did not, he had furniture and that that was “yours”. Richard told him that he could bring his “stuff” over to the Seaforth property and get rid of Richard’s “stuff”. The Executor understood that Richard was telling him that he could move into the Seaforth property when he died and that his furniture would also belong to the Executor although he could sell the furniture if he preferred.

  1. The Executor had a conversation with Richard to the following effect on at least three occasions:

Richard:   “Michael, when I go you won’t have anything to worry about.”

Executor:   “What do you mean?”

Richard:   “You won’t have to worry about anything, I’ll look after you.”

Executor:    “What about Richard and them.”

Richard:   “I’ll give them something but you’re my number 1. You are my main priority.”

The Executor understood from those conversations that Richard would leave him a significant share of his estate and make some provision for his other children. Richard did not mention Rose in those discussions. The Executor did not think to ask about Rose because he considered Rose to be a “carer”.

  1. In her affidavit of 8 January 2020, Rose said that, prior to Richard’s death, Richard, the Executor and she discussed how Richard’s estate would be divided upon his death. No evidence was given as to the substance of the conversation. The Executor denied having such a discussion. I accept the Executor’s evidence in that regard.

  2. A few months before Richard died, the Executor asked Richard whether he had a will and where it was kept. Richard pointed to the bottom drawer of his dressing table and told him it was in a manila folder in that draw. After Richard died, the Executor returned to the Seaforth property, looked in the draw and found various documents, including the Will and the certificate of title for the Seaforth property.

Conclusion as to the Relationship

  1. It is more likely than not that, at the date of Richard’s death, Richard and Rose were living in a close personal relationship. However, I am not persuaded that it is more likely than not that, at the date of Richard’s death, he and Rose were living together in a de facto relationship.

  2. The relationship had continued for 20 years prior to Richard’s death. Further, Richard and Rose lived in the Seaforth property throughout that time. At an early stage, a sexual relationship appears to have existed. Nevertheless, there was no financial dependence between them. Apart from the joint account to which I have referred, their finances were kept separate. Rather, they appear to have been financially independent of each other at all times and there do not appear to have been any arrangements for financial support between them. The financial independence of Richard and Rose is significant. Thus, there was no evidence or suggestion on Rose’s part that Richard participated in any way in her decision-making process in the buying and selling of properties. Further, there was no suggestion that Richard had any involvement in the substantial gifts made by Rose to her son. Richard had owned the Seaforth property from a time well before Rose began residing there and Rose invested in real property from time to time on her own account and Richard played no part in those investments.

  3. There is certainly evidence of a shared life so far as Richard and Rose are concerned. The overseas trips and trips within Australia tend to suggest a commitment to a shared life, particularly in circumstances where Rose’s evidence that they shared bedrooms was unchallenged. However, it is not clear that there was any commitment to such a life if, as the Executor contends, Rose was no more than a carer for Richard. Having regard to Richard’s age when the relationship began, and the likelihood that Rose answered an advertisement for a carer and housekeeper, it is more likely that the relationship was that of patient and carer, notwithstanding that there may have been a sexual relationship at an early stage.

  4. The evidence of sharing household duties is equivocal. If, as the Executor contends, Rose was retained by Richard as a housekeeper and carer, it would be expected that Rose would perform household duties such as cleaning and cooking. Richard’s complaints to the police in later years are consistent with his understanding that she was his carer, rather than his partner. The fact that she was regularly referred to as carer, albeit as well as partner, supports the Executor’s contention that she was no more than Richard’s carer. There was very little corroboration of Rose’s evidence that Richard regularly introduced her as his partner whereas there was evidence adduced by the Executor that she was regularly introduced as his carer.

  5. The only disinterested evidence as to the public aspects of the relationship between Rose and Richard was the evidence of Mr Garrick. However, his involvement appears to have been somewhat slight. Ms Chen’s evidence was supportive of her friend, Rose. However, Ms Chen’s husband might have been able to corroborate his wife’s evidence but was not called. Further, no evidence was adduced from members of Rose’s family other than her son. It was not suggested that there was any difficulty in adducing evidence from residents of the People’s Republic of China.

  6. The evidence of the correspondence with Mr Abbott certainly supports Rose’s contentions. Indeed, Richard appears to have accepted in discussions with police that he and Rose were engaged in a sexual relationship at some stage, early in their relationship. However, the tone of the police records indicates that matters had changed significantly if that had been the case in 2001 to 2003. There is a suggestion, in various discussions with police, that Richard afforded assistance to Rose in obtaining a visa and possible permanent residence. However, counsel for the Executor eschewed any suggestion that Richard engaged in false swearing in making the statutory declaration of 10 June 2003.

  7. The involvement of the Department of Veterans Affairs is puzzling. While Rose asserts that Richard suggested applying to the Department for a partner pension, I consider that it is more likely that any such proposal emanated from Rose. Thus, it appears that Rose sought to be recognised as being permitted to act on behalf of Richard in dealings with the Department but Richard did not give consent to such an arrangement.

  8. The reduction in Richard’s pension was apparently brought about by information being given to the Department that Rose was in a de facto relationship with him, such that her income and assets should be brought to account for the purpose of determining Richard’s entitlement to a pension and the quantum of the pension. Rose did not explain her involvement in the correspondence from the Department. The inference should be drawn that she claimed to be in a de facto relationship with Richard to ensure that she received a pension after his death.

  9. The carer’s allowance is a curious aspect of the arrangements between Richard and Rose. For some period of time at least, the allowance was paid into the joint account. Neither party adduced evidence as to the basis upon which the carer’s allowance was paid or as to entitlement to a carer’s allowance. That may be relevant to the question of whether or not Rose and Richard were in a close personal relationship at the date of Richard’s death. The extent to which it could be said that Rose provided Richard with domestic support and personal care without fee or reward is dubious.

Rose’s Financial Position

  1. In her affidavit of 8 January 2020, filed in support of her summons of 14 January 2020 Rose said that she wished to remain living in the Seaforth property and was seeking provision from Richard’s estate to enable her to maintain the Seaforth property, to maintain and replace a motor vehicle, to travel to China to visit her ageing parents each year and assist them and to supplement her modest income so that she could participate in social activities, including dining out and interacting with people fluent in Mandarin. The affidavit did contain evidence of her financial circumstances as follows:

  • $50,000-$55,000 gross per year income from her sterilisation work in Hornsby Hospital;

  • $940 Veteran’s Affairs income per fortnight;

  • Kariong property purchased in 2014 for $580,000; and

  • Loan secured on the Kariong property of approximately $600,000.

  1. In her affidavit of 25 June 2020, Rose gave evidence of the circumstances in which she met Richard and their life together at the Seaforth property. In that affidavit, Rose gave some evidence about selling “the Shortland property” on 21 February 2020, from which she received the sum of $118,960.04 after paying the amount secured by a mortgage of that property and other expenses of the sale. She said that, shortly after that she told Peter that she would help him pay off his study loan. She said that over the years she had helped Peter financially from time to time. No further particulars were provided in the affidavit.

  2. In her affidavit of 10 August 2020, Rose said that, prior to May 2017 she owned a unit in Dee Why, which she sold in May 2017 for $725,000. She said that, after payment of the amount secured by a mortgage of that unit and other expenses of the sale, she received about $240,000. She said that she gave the proceeds of the sale to Peter to assist him and his wife with paying for their wedding and purchasing a property of their own.

  3. In her affidavit of 25 February 2021, Rose said that she works on a full-time basis as a sterilisation technician at Hornsby Hospital, where she earns $50,000-$55,000 gross per annum. Thus, she is presently employed and it was not suggested that she will not continue to have an income from that employment for the foreseeable future. She also receives fortnightly payments of approximately $940 from the Department of Veterans’ Affairs, apparently on the basis that she and Richard were living in a de facto relationship, something that the Executor disputes.

  4. The Executor contends that the pension from the Department of Veterans’ Affairs should be assessed as having a present value of approximately $670,000 and that the Court should assume that Rose will continue to receive the pension. That may depend upon whether the Department of Veterans’ Affairs will continue to accept that Rose is entitled to such a pension. However, Rose did not proffer any evidence as to the circumstances in which she is entitled to the pension and no evidence was adduced to suggest that the outcome of these proceedings would affect her entitlement to continued receipt of that pension.

  5. Income tax returns lodged on behalf of Rose for the years ended 30 June 2014 to 30 June 2019 disclose total income for those years as follows:

  • 2014 - $88,962 (gross salary $45,042 + $43,920 rent);

  • 2015 - $85,126 (gross salary $48,076 + $37,050 rent);

  • 2016 - $79,385 (gross salary $49,144 + $30,241 rent);

  • 2017 - $87,523 (gross salary $49,269 + $38,254 rent);

  • 2018 - $70,738 (gross salary $47,338 + $23,400 rent);

  • 2019 – $91,626 (gross salary $48,573 + $42,820 rent).

  1. Rose also said in her affidavit of 25 February 2021 that she owns a property situated at Kariong, which, the Executor accepts, has a value of $925,000. In the affidavit of 8 January 2020, Rose said that the Kariong property was purchased in or around 2014 for $580,000. No particulars were provided of the source of the purchase price or the circumstances of the purchase of the Kariong property. Rose says that she spends approximately $2,700 per month on the Kariong property but gave no evidence of the nature of that expenditure. Rose said that Peter previously resided in the Kariong property and paid rent of $650 per week but that she now receives no rental payments from the Kariong property.

  2. Rose also said in her affidavit of 25 February 2021 that her typical monthly expenses are as follows:

  • Groceries $650;

  • Clothing $300;

  • Motor vehicle $250;

  • Gas, electricity, telephone, council, water bills for the Kariong property $310 per month;

  • Home insurance for the Kariong property $96;

  • Medical $40; and

  • Social outings, holidays, recreation expenses $400.

Rose also said that gas, electricity, telephone, council and water bills for the Seaforth property amounted to $285 per month and that insurance for the Seaforth property amounted to $92 per month.

  1. As at 1 June 2019, Rose had a liability to National Australia Bank of about $518,941.92, which is secured on the Kariong property. In a supplemental submission, Rose sought leave to reopen to tender a bank statement in respect of an account with National Australia Bank showing a debit balance as at 31 December 2020 of $79,713.61. No further evidence was proffered as to the current balance. In the circumstances, I do not consider that leave to re-open should be granted.

  2. The Executor complains that Rose adduced no evidence as to her savings or credit balances in any bank account, the value of her motor vehicle, her superannuation entitlements or a loan made to her sister. Rose asserts that, prior to the hearing, there was “extensive pre-trial disclosure” of her financial affairs. Be that as it may, it is for the plaintiff in an application for a family provision order to satisfy the Court as to the matters referred to in s 59 of the Succession Act. Having regard to the state of the evidence, it is well-nigh impossible to form a fair view as to Rose’s financial position.

Whether Family Provision Order should be made

  1. While I am satisfied that Rose and Richard were living in a close personal relationship at the time of Richard’s death, I am not persuaded that, having regard to all of the circumstances of the case, there are factors that warrant the making of an application for a family provision order by Rose. No particular matters were advanced on Rose’s behalf as to the factors that would warrant the making of such an application.

  2. The material advanced on behalf of Rose as to her financial circumstances was less than clear. The evidence indicates that, between January 2017 and June 2018, Rose made gifts of sums in excess of $800,000 to her son. While those gifts were made during Richard’s lifetime, there was no evidence that Rose and Richard ever discussed Rose’s finances or her intentions to make gifts to her son. She was, of course, perfectly entitled to do so. However, it is a relevant factor in considering whether or not provision should be made for her out of Richard’s estate.

  3. Richard appears to have regarded the Executor, as his youngest child, very favourably. However, the evidence suggests that there was not frequent intercourse between Richard, on the one hand, and other members of his family, being his other children and his grandchildren, on the other. Nevertheless, his surviving daughter clearly had contact with Richard, albeit somewhat infrequently.

  4. I am mindful of the 20 years of cohabitation of Richard and Rose. However, I do not consider that the evidence supports a conclusion that the gifts made by Richard in the Will were otherwise than in accordance with community expectations of a man in his position. Having regard to the relationship between Richard and Rose described above including in particular their financial independence, I do not consider that community expectations would be that Richard should make provision for Rose from his estate.

Conclusion

  1. It follows from the conclusions that I have reached above that the application by Rose for a family provision order under the Succession Act should be refused. I therefore propose to order that the summons filed on 14 January 2020 be dismissed and that Rose pay the costs of the Executor. However, I propose to reserve to the parties liberty to make written submissions on the question of costs no later than 14 days after the publication of these reasons and for each party to respond within a further 14 days.

**********

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.

Endnote

Decision last updated: 04 August 2021

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Cases Citing This Decision

2

Sun v Chapman [2022] NSWCA 132
Sun v Chapman (No 2) [2021] NSWSC 1231
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