Tsakirakis v Hatzidimitriou

[2007] NSWSC 400

CITATION:	Tsakirakis v Hatzidimitriou [2007] NSWSC 400
HEARING DATE(S):	2 to 5 April 2007
JUDGMENT DATE :	27 April 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Plaintiff’s Summons dismissed.
CATCHWORDS:	FAMILY LAW – De facto relationship – whether the Plaintiff established that she was the de facto wife of the deceased for a continuous period of not less than two years before the death of the Deceased for the purpose of s.61B(3B) of the Wills, Probate and Administration Act 1898.
LEGISLATION CITED:	- Property (Relationships) Act 1984 (NSW) – s.4 - Wills, Probate and Administration Act 1898 (NSW) – s.32G, s.61B(3), s.61B(13), s.63B(3D)
CASES CITED:	Roy v Sturgeon (1986) 11 NSWLR 454
PARTIES:	Joanna Tsakirakis – Plaintiff Vasilios Hatzidimitriou - Defendant
FILE NUMBER(S):	SC 5856/05
COUNSEL:	J. Waters – Plaintiff D.A. Allen – Defendant
SOLICITORS:	H.C. Stathis & Co – Plaintiff Proctor & Associates – Defendant

5856/05 Tsakirakis v Hatzidimitriou

Introduction

1 Dimitrios Hatzidimitriou (“the Deceased”) died intestate on 19 December 2004. His marriage had been dissolved in 2000. His three children, Angela, Vasilios and Stephen, survived him. 2 Section 61B(3B) of the Wills, Probate and Administration Act 1898 (NSW) (“the Act”) provides:

“ Succession to real and personal property on intestacy
…
(3B) Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for:

(a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate – the de facto spouse …”

The Plaintiff claims that she was the de facto spouse of the Deceased for a continuous period of not less than two years before the death of the Deceased, so that she falls within the provisions of this section. The Plaintiff seeks a declaration to that effect. She also seeks a declaration that such part of the estate of the Deceased as would be required to be held on trust for a spouse, if the Deceased had left a spouse, is held in trust for her by operation of the section.

3    The Defendant, Vasilios Hatzidimitriou, who was granted Letters of Administration of the Deceased’s estate, denies that the Plaintiff was the Deceased’s de facto spouse and says that, even if she was, such relationship did not exist for a continuous period of two years prior to the Deceased’s death. 4    The issues in these proceedings are issues of fact. The Plaintiff’s version of events and circumstances is supported by her own evidence, her estranged husband’s evidence and by some few documents, which are equivocal. The Defendant and seven other witnesses, two of whom are not members of the Deceased’s extended family, contradict the Plaintiff’s evidence. Clearly, emotions on both sides run high. The resolution of the issues of fact largely depends on credit.


The relevant definitions

5 The terms “de facto relationship” and “de facto spouse” are defined for the purposes of Pt 2 of the Act in s.32G:

“(1) In this Part:

de facto relationship has the same meaning as in the Property (Relationships) Act 1984.

de facto spouse , in relation to a person dying wholly or partly intestate, means someone who:

(a) was the sole partner in a de facto relationship with the person, and

(b) was not a partner in any other de facto relationship.”
6 “De facto relationship” is defined in s.4 Property (Relationships) Act 1984 (NSW) as follows:

“(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

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

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

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

(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.

(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.”


The Plaintiff’s evidence

7    The Plaintiff was born in 1953 and married John Tsakirakis in 1973. Mr Tsakirakis is still living; the marriage has never been dissolved. There are two children of the marriage. 8    The Plaintiff and her husband lived for many years in a house at Redfern. The Plaintiff says that by 2002 her marriage had deteriorated although she was still living in the same house as her husband. According to the Plaintiff, she met the Deceased in April 2002 while she was working in a café. By June 2002, she says, a sexual relationship had developed although the Plaintiff continued living in the Redfern house. The Plaintiff kept her relationship with the Deceased secret from her husband and others. 9    The Plaintiff said that on 17 September 2002, the Deceased invited her to dinner at a restaurant, gave her a gold necklace and said:
“Joanna, I love you and I want you to come and live with me. I can’t ask you to marry me [I was still married to John] but I want to be with you all the time.”

The Plaintiff said that she accepted the Deceased’s offer a short time later.

10    In her affidavit of 11 November 2005, the Plaintiff said:

“18. Between 17 September and December 2002 I spent increasing amounts of time at the Moorebank home and with Jim. I stayed overnight with increasing frequency and spent less time at the Redfern home. I had taken on all of the household tasks typically performed by a wife, including washing, ironing and folding clothes, putting them away, cleaning, cooking all meals and shopping. I did, however, continue to go to the Redfern home regularly and I did also stay there overnight in September, most of the time and by December, some of the time. By no later than the beginning of December 2002 I had started to consider the Moorebank home to be my home and I had started to consider Jim to be my de-facto partner. I am unable to specify a precise date when I adopted these conclusions as I did not keep a precise record. During this period the factors which had initially made me reluctant to announce to John that I was moving out of the Redfern seemed (which I have referred to above) to become less important to me as I became more eager to complete my move.

19. At the suggestion of my solicitor I have recently checked my records for the purpose of identifying any documents which I have been asked or required to complete and which might indicate when I first recorded my address as the Moorebank home. I have ascertained that my pensioner concession card issued by Centrelink which was issued on 4 November 2002 recorded my address at the time as the Moorebank home. I am satisfied that the address has been noted because I informed Centrelink that I lived at the Moorebank home with Jim and that I did, as at 4 November 2002, live at the Moorebank home with Jim. Annexed hereto and marked with the letter “F” is a copy of my Centrelink card. I progressively notified various other organisations of my change of address but I did not do so systematically or promptly.
11    In paragraph 19 of her affidavit, the Plaintiff dated the commencement of what she claims to have been a de facto relationship with the Deceased as 4 November 2002. She did this by reference to a date appearing on her Centrelink Pensioner Concession card. The date of commencement of the relationship is of critical importance. As the Deceased died on 19 December 2004, the Plaintiff must establish that the de facto relationship was in existence continuously from 19 December 2002 at the latest. 12    As I have said, in paragraph 18 of her affidavit of 11 November 2005, the Plaintiff said that she was staying at her husband’s Redfern house “by December, some of the time” . In paragraph 21 she said:
“I attended the Redfern home on occasions in the period from 8 December 2002 to 28 December 2002 primarily for the purpose of retrieving an item of property or, more likely, clothing. I do not have a precise recollection or any record but I am almost certain that I also may have stayed there overnight on some occasions during that period, because Moorebank and Redfern are not near to each other and it may have been convenient for me to stay at Redfern. I do, however, recall that well before I first organised the removalist (that is before 8 December 2002) I considered the Moorebank home to be my home and I considered myself to be Jim’s partner.”
13    This evidence as to her staying at the Redfern house in December 2002 was contradicted by the Plaintiff in cross examination. She asserted firmly: “After 4 November [2002] I never slept a night [at the Redfern house]” : T17.15-.18; see also at T19.46-.48. This evidence, in turn, contradicted what the Plaintiff said in paragraph 11 of her affidavit: “I started staying occasionally overnight (at the Deceased’s house) about the end of June 2002, with the frequency gradually increasing until early December when I moved into his home in Moorebank” . 14    The Plaintiff’s evidence by 4 November 2002 that she had established the Deceased’s home as her own home in the context of a de facto relationship does not sit easily with statements made in a document provided by her solicitor on her behalf to the Family Court in support of her application for a property settlement with her husband. The document was sent to the Family Court under cover of her solicitor’s letter dated 23 March 2004: Ex D1. It contains detailed particulars of the circumstances of the Plaintiff and Mr Tsakirakis. It gives the date of separation of the Plaintiff and Mr Tsakirakis as 28 December 2002. In response to the question “Do you cohabit with another person …” , the answer given was “Yes. The wife shares accommodation with [the Deceased]” . I infer that these statements were included in the document on the instructions of the Plaintiff. 15    In the financial statement provided to the Family Court dated 3 July 2003 and signed by her (Ex D3) the Plaintiff was required to respond to the question “give the name, age, relationship to you … of each other occupant of your home” . She answered: “[The Deceased], age 60, friend” . In response to a direction to give particulars as to her weekly expenses, she answered that she paid rent of $100 per week to the Deceased as her landlord. I infer that these statements were included in the document on the instruction of the Plaintiff. 16    It is notable that in neither of the documents provided to the Family Court on behalf of the Plaintiff was the Plaintiff prepared to describe the Deceased as her de facto husband. 17    The Plaintiff endeavoured to reconcile her statement in Exhibit D1 that she and her husband had separated on 28 December 2002 with her evidence that her de facto relationship with the Deceased commenced on 4 November 2002 by saying that 28 December 2002 was the date upon which she had arranged for a removalist to take her belongings from the Redfern house to the Deceased’s house at Moorebank. This explanation is unconvincing. 18    The Plaintiff admitted that she removed no furniture from the Redfern house and took only suitcases and boxes. She had her own car and said that she had returned several times to the Redfern house in December to remove her belongings. The necessity for a removalist to remove anything further on 28 December was far from demonstrated. The Plaintiff produced no removalist’s invoice. 19    Apart from the inconsistencies and contradictions already noted, the Plaintiff’s evidence in cross examination that after 4 November 2002 she never spent another night at the Redfern house is improbable in the light of information emerging from the telephone records of the Deceased. They show that the Deceased made calls to the Redfern house from his mobile phone after 4 November 2002: one call on 5 November at 4.02pm, one call on 15 November at 12.44pm, one call lasting just over twenty-seven minutes on 3 December at 5.53am, and two calls on 21 December, the first, at 6.38am, lasting just over nine minutes and the second, at 9.18am, lasting almost a minute. The two calls on 21 December are highly significant: they occurred after the critical date by which the Plaintiff must establish the commencement of the alleged de facto relationship, i.e., 19 December 2002. 20    There is no suggestion that anyone except the Plaintiff and her husband was living in the Redfern house at the time of these calls. No one suggests that the Deceased had any reason to speak to Mr Tsakirakis at any time, before or after 4 November 2002. There is no suggestion that the Plaintiff used the Deceased’s mobile phone to telephone her husband at the Redfern house after 4 November 2002. The fact that on at least two occasions after 4 November 2002 the Deceased telephoned the Redfern house and had substantial conversations with someone very early in the morning strongly indicates that the Plaintiff was still sleeping at the Redfern house in November and December, as she had said in her affidavit evidence but denied in her oral evidence. 21    The Plaintiff relied strongly on the fact that a Centrelink Pensioner Concession card shows her address at the Deceased’s house and is endorsed “Date of grant 04 November 2002” . As I have noted, the Plaintiff said in her affidavit that she lived at the Deceased’s house as at 4 November 2002. In her cross examination, the Plaintiff said that she remembered that it was on 4 November 2002 that she moved into the Deceased’s house and that she went to Centrelink on that day and changed the address on her Pensioner Concession card: T21.24-.36. 22    The Plaintiff conceded in cross examination that her Pensioner Concession card was valid for one year and was issued annually. The Plaintiff’s card shows that it expired in February 2004. According to the Plaintiff’s evidence, therefore, it could have been issued in January 2003. Such an issue date for the card, showing her new address, would be more consistent with the Plaintiff separating from her husband and moving out of the Redfern house at the end of December 2002 rather than at the beginning of November 2002. The notation on the card, “Date of grant 4 November 2002” , could possibly be the date upon which the Plaintiff became entitled to the grant of such a card, as suggested by Mr Allen of Counsel, who appears for the Defendant.


Mr Tsakirakis’ evidence

23    The Defendant called the Plaintiff’s husband, Mr Tsakirakis, to give evidence as to the date on which the Plaintiff ceased living at the Redfern house. Mr Tsakirakis had declined to give an affidavit on behalf of the Defendant but had agreed to attend and give evidence if he was served with a subpoena. 24    Mr Tsakirakis was asked in chief when was the last time that the Plaintiff slept at the Redfern house. Without a moment’s hesitation, he said: “The very last time would be 1 November, or 1 or 2 November. At the beginning of November she left” : T131.54-.58. This evidence, which directly supported the Plaintiff’s case, clearly took the Defendant’s advisers by complete surprise. 25    When Mr Tsakirakis was asked how he was able to remember the date that his wife had left the Redfern house he could give no explanation; he agreed that he had not made a record of the date. However, Mr Tsakirakis had been seen talking to his son, Theo, before he gave evidence. Theo had been present in Court while the Plaintiff was being cross examined and he gave evidence in support of her case – evidence which I do not accept, for reasons which I will explain shortly. 26    Mr Allen was given leave to cross examine Mr Tsakirakis as a hostile witness. Mr Tsakirakis insisted that the Plaintiff left “early November and she came a few times to pick up a few things and the last time she came was 29 December” : T136.10. This evidence also was consistent with the Plaintiff’s evidence that she had finally moved her belongings from the Redfern house on 28 December 2002 but it is notable that Mr Tsakirakis did not say that the Plaintiff had engaged a removalist on that occasion. 27    Mr Tsakirakis had been interviewed by the Defendant in mid-2005 to obtain information to assist in this case. The Defendant said that he made contemporaneous notes of what Mr Tsakirakis told him and later transcribed those notes into his computer. The notes record, amongst other things, what Mr Tsakirakis had said about the date of the Plaintiff’s departure from the Redfern house. The notes were admitted, without objection, for the limited purpose of proving what Mr Tsakirakis had previously said about the date of departure. The notes record that Mr Tsakirakis told the Defendant that the Plaintiff “left home at approx. 3pm Sunday 29th December 2002 with 2 small suit cases and the clothes on her back” : Ex D16. That statement of Mr Tsakirakis was consistent with the Plaintiff’s statement in Exhibit D1 that she and Mr Tsakirakis had separated on 28 December 2002. 28    I accept the Defendant’s evidence about what Mr Tsakirakis had told him in mid-2005 about the date of the Plaintiff’s departure from the Redfern house. It was not put to the Defendant in cross examination that his note of what Mr Tsakirakis had said was a fabrication or that the content of the note was not true. Further, for reasons which I will explain later, I accept the Defendant generally as a witness of credit. 29    I do not, however, accept Mr Tsakirakis as a witness of credit. He was far too ready to put forward the dates 1 and 2 November 2002 as the date of the Plaintiff’s departure from the Redfern house; that evidence was inconsistent with a prior statement which he had made to the Defendant and was inconsistent with the statement as to date of separation made by the Plaintiff in Exhibit D1; his evidence that his wife never slept at the Redfern house after 1 or 2 November 2002 is improbable in the light of the telephone calls which the Deceased made to the house after that date; finally, Mr Tsakirakis’ demeanour when giving the critical evidence was entirely unconvincing.


The Plaintiff’s general credit

30    In assessing the reliability of the Plaintiff’s evidence generally, I take into account the following evidence which she gave. She was asked whether, before she commenced this litigation, she had paid $400,000 to her son, Theo. She denied having done so. She was then shown a document dated April 2005, the Summons in these proceedings having been filed in November 2005. The document, which was signed by her son Theo, states:

“I, THEO TSAKIRAKIS, of 78 Thomas Street, Picnic Point NSW 2213, hereby acknowledge receipt of cheque in the sum of $400,000.00 from my mother, JOANNA TSAKIRAKIS, who has requested that I hold this sum on her behalf as she has concerns regarding the litigation of the Estate of Dimitrios Hatzidimitriou, and to hold this amount pending the finalisation of this matter.

I further acknowledge that I have no claims whatsoever in respect of this money, and declare that I hold these sums in trust for my mother, that I shall not disburse, pledge or deal in these amounts in any manner whatsoever except by her direction.

DATED: April 2005
[signed]
THEO TSAKIRAKIS
31    On seeing the document, the Plaintiff immediately said: “I gave that to the children” . She denied giving her son the money because she was concerned about the outcome of this litigation. She said:
“… I gave that money to my sons because their father had received that money from the insurance claim when he was hurt or injured and it was not fair for me to hold the money because this money was the children's.”
32    In fact, the money was from the proceeds of the Plaintiff’s property settlement with Mr Tsakirakis in their Family Court proceedings. The Plaintiff said that she did not know why her son Theo had signed the document and insisted that the sum of $400,000 was a gift to her sons. 33    Mr Theo Tsakirakis, who had been present in Court throughout the case and during this evidence, was called. He said that he created the document, Exhibit D7, without consultation with his mother. He said:
“Q. Could you tell his Honour the circumstances in which that document was created?
A. I basically went ahead and sort of created this document. I was in a relationship at the time and basically it just made me more comfortable. I'd previously been sued in a previous relationship so I felt more comfortable actually drawing this up so basically my partner at the time couldn't have access to this money.”
34    Mr Tsakirakis said that the $400,000 was an outright gift to him by the Plaintiff. It is notable that he did not say that the money was a gift to both the Plaintiff’s sons, as the Plaintiff had said. He said that he instructed his solicitor, who is also his mother’s solicitor in these proceedings, to draw Exhibit D7 but he said that his mother had not, in fact, requested him to hold the money on her behalf, as recounted in the document, and he said further that he did not know what were the “concerns regarding the litigation of the Estate of [the Deceased]” referred to in the document. He said:
“Basically the money was a gift so I'll say this document is actually false.”
35    I regard the evidence of both the Plaintiff and Mr Theo Tsakirakis on this question as highly improbable. The high probability is that the document was prepared by the Plaintiff’s solicitor, for the very purpose which is recited in it: the Plaintiff wished to put the money which she had received from the property settlement with her husband in a name other than her own. I infer from the reference in the document to her “concerns” regarding this litigation that she wished to put the money beyond the reach of any adverse costs order in these proceedings while, nevertheless, retaining the benefit of it. 36    This finding, together with the inconsistencies, contradictions and improbabilities in the Plaintiff’s evidence to which I have referred earlier, lead me to the conclusion that I cannot accept the Plaintiff’s evidence as reliable, except where it is uncontradicted, or inherently probable, or is corroborated by other reliable evidence. 37    The Plaintiff’s Centrelink Pensioner Concession card does not unequivocally corroborate the Plaintiff’s evidence that she had established her home with the Deceased on 4 November 2002. As I have suggested above, the date on the card, namely, “Date of grant 4 November 2002” , may mean that it was on that date that the Plaintiff became entitled to the grant of such a card; the fact that the card was valid for only one year and expired in February 2004 suggests that it could have been issued in January 2003. That possibility is consistent with the Plaintiff applying for a card with a new address after she had taken up residence with the Deceased consequent upon a separation from her husband on or about the date stated in Exhibit D1, i.e. 28 December 2002. 38    There is no other contemporaneous documentary evidence which supports the Plaintiff’s case that she established her home with the Deceased in November 2002. She explains the lack of any such documentary corroboration by saying that all of her papers were stolen in a robbery. However, she was unable to give any indication as to when this robbery had occurred. Her evidence as to the theft of documents was unconvincing and uncorroborated; I cannot place reliance on it.


The Defendant’s evidence

39    The affidavit evidence of witnesses called on behalf of the Defendant was not as free from the possibility of collusion as it should have been because the affidavits had been prepared by the Defendant himself, and not by the Defendant’s solicitor. I approach that affidavit evidence with caution. However, the Defendant’s witnesses were searchingly cross examined by Mr Waters of Counsel for the Plaintiff. I gained more assistance from what the witnesses said in cross examination than from what they said in their affidavits. 40    The Defendant said that he was in the habit of calling in to see the Deceased on weekdays if he happened to be working nearby, and that he visited regularly on weekends. He said that about a week before Christmas 2002 he called in to see the Deceased but the Deceased was not at home. The Defendant said that he went into the Deceased’s house, as he had free access, and saw nothing to indicate that anyone other than the Deceased was living there. 41    The Defendant was challenged in this evidence, particularly as to the time of the visit but nothing emerged in his cross examination to make his evidence as to the time of this visit improbable. The Defendant said that he first met the Plaintiff in January 2003 but he conceded that she could have moved in before Christmas. However, he was firm in his evidence that when he met the Plaintiff in the Deceased’s house in January 2003, the Plaintiff said, and he could see for himself, that she was sleeping in a bedroom which had once been the Defendant’s own bedroom and which was separate from the Deceased’s bedroom. 42    The Defendant agreed that on the first occasion he met the Plaintiff in the Deceased’s house he observed that some of her clothes were in the wardrobe in the main bedroom occupied by the Deceased. He conceded that the relationship between the Deceased and the Plaintiff may well have been sexual, at least in the beginning. He conceded also that it was possible that his visit to the Deceased’s home before Christmas 2002 did not occur in the week preceding Christmas. These concessions were against his interest but were frankly made. I formed the opinion that the Defendant was endeavouring to be accurate and that his evidence was generally reliable. 43    The Defendant’s wife, Toula, said that she first met the Plaintiff when she visited the Deceased’s house. She was a little uncertain in cross examination of the year in which this visit occurred, but she said that it was in January. If that evidence is accepted, it must have been January 2003. Toula said that she noticed at once that the Deceased, who had formerly been sleeping in a single bed in the Defendant’s former bedroom, was now sleeping in the main bedroom on a double bed and that the Plaintiff was, to all appearances, occupying a separate bedroom. 44    Toula’s evidence was not shown to be contradictory or improbable. 45    Toula’s mother, Mrs Metaxia Dellis, gave evidence that she first met the Plaintiff in February 2003 when the Deceased introduced her simply by name, without a description of the relationship. 46    The Deceased’s daughter-in-law, Michelle, gave evidence that she first met the Plaintiff in December 2002 during a short visit to the Deceased’s house with her husband and children. She said that she remembered that the visit was just before Christmas because the Deceased had bought an inappropriate Christmas present for one of her children and she wanted to ask him for the receipt so that she could exchange it. She said that the visit was very brief but she observed that the Deceased had been sleeping in a single bed in a smaller bedroom and that although there was now a new double bed in the main bedroom, it was still in its plastic cover. This suggests that shortly before Christmas the Deceased was still sleeping in the small bedroom in a single bed, and that the Plaintiff had not yet moved in, although she was a visitor to the Deceased’s home. 47    Mrs Helen Savas, who had been a friend of the Deceased for many years, said in her affidavit that she had first met the Plaintiff in late December 2002 when the Deceased and the Plaintiff came to her home on a social visit. In her oral evidence, Mrs Savas said that it was 2003 when she first met the Plaintiff. She agreed that she had no means of identifying whether it was in 2002 or in 2003 and that 2003 was a matter of impression. Mrs Savas struck me as an honest witness who was endeavouring to do her best, but her evidence as to the time at which she first met the Plaintiff is too vague to be of any real assistance. 48    However, Mrs Savas was quite clear that on the first occasion she had met the Plaintiff, they had had a separate conversation in which the Plaintiff had told her that she was not living with the Deceased and added “we’re just on trial to see if we like each other” . 49    The Deceased’s sister, Chrisanthis, gave evidence that when she first met the Plaintiff at the Deceased’s house, she asked the Deceased whether the Plaintiff was living there. She said that the Deceased responded that she was not and added jocularly that he was “try[ing] her out” . Chrisanthis was not able to give any helpful evidence about when the Plaintiff moved into the Deceased’s house.


When cohabitation commenced

50 To qualify as a de facto spouse for the purposes s.61B(3B) of the Act, a claimant must prove to the Court’s satisfaction that for a continuous period of not less than two years before the death of the intestate, the claimant, not being married to the intestate or related by family, was living with the intestate “together as a couple” . 51    The Plaintiff has made no submission that she was living together with the Deceased as a couple before she moved out of the Redfern house and into the Deceased’s house on a final basis. Her case is that the commencement of her cohabitation with the Deceased at the Deceased’s house was the commencement of the period of two years of living “together as a couple” for the purpose of s.61B(3B). In order to satisfy the first qualification under s.61B(3B) the Plaintiff must prove that the date that cohabitation commenced was not later than 19 December 2002. The Plaintiff’s case is founded upon the assertion that the commencement date was not later than 4 November 2002. 52 Proof of 4 November 2002 as the commencement date of cohabitation depends directly upon the evidence of the Plaintiff and Mr Tsakirakis. For the reasons which I have given earlier, I do not accept either of them as a witness of credit. Their evidence is not corroborated by other reliable evidence. On the contrary, the evidence shows that the Plaintiff and Mr Tsakirakis had previously stated that the Plaintiff moved out of the Redfern house on a final basis on 28 or 29 December 2002. The evidence of the Defendant and his witnesses as to the circumstances in which they met the Plaintiff is consistent with the Plaintiff having moved into the Deceased’s house after Christmas 2002 or in early January 2003. The information on the Plaintiff’s Pensioner Concession card is equivocal and, on one possibility, is consistent with the Plaintiff having changed her address to that of the Deceased in January 2003. 53 I am not satisfied that the Plaintiff has proved, as she must, that she commenced cohabitation with the Deceased by 4 November 2002 or at any other time before 19 December 2002. I find that it is more likely than not that the Plaintiff commenced cohabitation with the Deceased on or about 28 or 29 December 2002. Consequently, whether or not the Plaintiff’s commencement of cohabitation with the Deceased marked the commencement of a de facto relationship which continued for a period of two years thereafter – which is disputed – the claim of the Plaintiff to qualify under s.61B(3B) of the Act must fail. 54 However, in case I am wrong in this conclusion, I will give my findings on the other major issues in the case.


Whether a de facto relationship existed at all

55    While the Defendant was prepared to concede that a sexual relationship existed between the Deceased and the Plaintiff – the phrase which he used was “live in girlfriend” (T85.55) – he did not concede that from the time the Plaintiff commenced living at the Deceased’s house she had a de facto relationship with the Deceased, as the Plaintiff asserted. 56 Factors to be taken into account in determining whether a de facto relationship exists are set out in s.4(2)(a)-(i) of the Property (Relationships) Act : see para 6 above. However, as subsections (2) and (3) make clear, those factors do not constitute an exhaustive check list: the Court must have regard to all of the circumstances of the relationship and the presence or absence of any factors specified in subsection (2) is not decisive one way or another. In essence, therefore, whether the Court is satisfied that a de facto relationship exists is ultimately a matter of impression or value judgment: see e.g. Roy v Sturgeon (1986) 11 NSWLR 454, at 458G. 57 Both parties, while recognising that the factors set out in s.4(2)(a)-(i) of the Property (Relationships) Act are not an exhaustive check list, have addressed submissions to those of them which are relevant in the present circumstances. It will be convenient for me to do likewise. 58    There is a dispute about the nature and extent of the Plaintiff’s residence with the Deceased. The Plaintiff said that at all times until the Deceased became critically ill she slept with him in the double bed in the main bedroom. She adduced no corroborative evidence of this assertion. However, the Defendant conceded that he had seen some of the Plaintiff’s clothes in a wardrobe in the main bedroom in January 2003. Whether the Plaintiff continued to keep the clothes in that wardrobe at all times thereafter is not clear. 59    The Defendant said that when he was first introduced to the Plaintiff at the Deceased’s house she showed him the single room (formerly the Defendant’s own bedroom) and said that that was her bedroom. He observed the Plaintiff’s family photographs and other effects in that room. He said that in his later visits to the Deceased’s house, he never saw any indication that the Plaintiff was sleeping in the main bedroom with the Deceased. On occasion, when he was at the Deceased’s house late at night, he said, he saw the Plaintiff retire to bed and go into the separate bedroom, not the Deceased’s bedroom. 60    The Deceased’s daughter, Angela, came from Crete to look after the Deceased in September 2004, when he was gravely ill. She said that she observed that the Plaintiff was not sleeping in the Deceased’s room but in a separate room which she (Angela) then occupied while the Plaintiff slept on a sofa. This evidence was corroborated by the Deceased’s daughter-in-law, Michelle, who observed the Plaintiff sleeping on a sofa while Angela was living in the Deceased’s house and taking care of him. 61    The Defendant’s wife, Toula, said that when she saw the smaller bedroom, probably in January 2003, it had a new single bed in it and the Plaintiff’s photographs and effects were in that room, not in the main bedroom where the Deceased slept. 62    Mrs Dellis said that on one occasion when she visited the Deceased’s house, the Plaintiff showed her the room next to the main bedroom and said that it was her bedroom. Mrs Dellis observed the Plaintiff’s family photographs in that room. 63    Mrs Savas said that on one occasion when she was visiting the Deceased, he showed her the main bedroom, identifying it as his bedroom, and the adjoining separate room, identifying it as the Plaintiff’s room. 64    The Deceased’s sister, Chrisanthis, said that she believed that the Deceased and the Plaintiff were sleeping together but she did not base this conclusion on anything which she observed or heard; rather, it seemed to be no more than conjecture on her part. 65    I am prepared to accept that there was at some time a sexual relationship between the Deceased and the Plaintiff. However, the Plaintiff has failed to satisfy me that from the time she moved into the Deceased’s house until Angela arrived to take care of her father in September 2004, she always shared the same bed as the Deceased, as she claimed. In this regard, I note that in the information which she provided to the Family Court in March 2004 (Exhibit D1) she stated that she “shared” accommodation with the Deceased and in Exhibit D3, provided by her in July 2003, she described the Deceased as “friend” . 66    There is no evidence that the Plaintiff and the Deceased held any property in their joint names, that they had a joint account, or that they acquired anything with jointly contributed funds. The Plaintiff at one stage suggested that a car purchased by the Deceased was registered in her name, but she conceded in cross examination that that was not correct: T42.33-.39. 67    The Plaintiff said that the Deceased provided her with money for housekeeping but there is no evidence corroborating that statement. On the other hand, Toula said that the Plaintiff had told her that the Deceased permitted her to use his car but that she had to pay for the petrol. She said that the Plaintiff told her: “We keep our money separate” . 68    The Plaintiff was in receipt of Centrelink payments and in 2004 she worked. In Exhibit D1, which gives particulars of the Plaintiff’s financial position as at March 2004, there is no reference to the Plaintiff being supported by the Deceased or receiving any financial assistance from him. 69    I do not accept that the Plaintiff was financially supported by the Deceased at any time. 70    The Plaintiff said that she performed household duties for the Deceased, at least until Angela’s arrival. The Defendant and his witnesses do not contradict this assertion. However, Mrs Dellis gave evidence that she was present during an argument between the Plaintiff and Deceased in which the Plaintiff said that she had told Centrelink that she paid rent to the Deceased and the Deceased had angrily told the Plaintiff: “You go back, tell them you no pay rent, you stay in the house and clean the house for the rent. After you got your money for your husband, you go” : T126.3. The reference to “money for your husband” (sic) referred to the property settlement which the Plaintiff was seeking in the Family Court. 71    It is significant that the Plaintiff had said in her financial statement to the Family Court (Exhibit D3) that she paid rent of $100 per week to the Deceased, although her evidence in this case was to the contrary. I accept the evidence of Mrs Dellis. I am not satisfied that the Plaintiff’s performance of household tasks for the Deceased was indicative of a de facto relationship rather than explicable as some consideration provided by the Plaintiff to the Deceased in return for accommodation. 72    The Plaintiff said that she and the Deceased visited friends regularly and made trips together to the country. The Plaintiff has produced seven photographs of herself and the Deceased or the Deceased’s family. Two photographs were taken on a trip to the country with a group of friends of the Deceased. One photograph is of a dinner at a club at which the Plaintiff, the Deceased and two other persons are present. One photograph is of the Plaintiff and the Deceased together with the Deceased’s grandchild. Three photographs are of another occasion with the Deceased and another grandchild. 73    The only evidence about the observable relationship between the Deceased and the Plaintiff has been given by the Defendant and his witnesses. None of them said that they observed the Deceased address the Plaintiff with any term of endearment or display any overt sign of affection towards her. They addressed each other in Greek, using the diminutive forms of their names, as is common between persons who are familiar with each other although not necessarily anything more than friends. The Plaintiff did not produce any card, letter or other note written to her by the Deceased. 74    The Plaintiff said that the Deceased gave her an expensive gold necklace in September 2002 and accompanied it with a declaration of love. A valuation of a gold chain has been produced but the Plaintiff did not produce the necklace. No one has given evidence that they saw the Plaintiff wearing such a necklace. I cannot accept without corroboration that the necklace was indeed given to the Plaintiff by the Deceased, and that the gift was made in the circumstances which she related. 75    The Defendant accepted that the Plaintiff and the Deceased went together to social outings and to clubs and other entertainments. That is something that friends with common interests might do. There is no evidence that the Plaintiff accompanied the Deceased to family gatherings outside the Deceased’s home at Christmas, Easter or on birthdays, whether the gatherings were those of the Plaintiff’s family or the Deceased’s family. 76    In the Deceased’s Death Notice, in which the family of the Deceased was named, the Defendant added the Plaintiff’s name with the description in Greek “syntrophos” . According to the evidence of the interpreter, that word is a compound of two Greek words, “syn” , meaning “together”, and “trophos” , literally “a feeder”, from “trophein”, meaning “to nourish”. The word takes its colour from the context in which it is used. It can mean “partner”, as in an intimate relationship, or just companion or comrade in another context. Just as in English, in different contexts, “partner” can range in meaning, for example, from “someone I dance with” to “someone I have a casual sexual relationship with”, to “someone I share my life with”, so also can “syntrophos” accommodate a wide range of meanings. According to the interpreter’s evidence, it does not denote exclusively a committed relationship of husband and wife, or de facto husband and wife. 77 Finally, I accept the evidence of the Defendant and of Angela and Michelle that from September 2004 until the Deceased’s death, Angela was responsible for caring for him on a full-time basis and that during this period the Plaintiff was working on a regular basis. It is significant that the Deceased called upon his daughter, Angela, to take care of him in his final months, not the person who now claims to be his de facto wife. The Plaintiff did not suggest that she opposed or resisted Angela’s role. 78 In summary, there is no evidence upon which I could be satisfied that, by reputation and acceptance amongst family and friends, the Plaintiff and the Deceased were regarded as a de facto couple, or regarded themselves as such. 79 In my opinion, the evidence of the relationship between the Plaintiff and the Deceased is consistent with the Plaintiff and the Deceased living together as a matter of convenience, the Plaintiff performing household tasks for the Deceased as some kind of compensation for accommodation. I accept that there was a sexual relationship between them, but for how long I cannot say. I accept that the Plaintiff and the Deceased shared some common social interests and activities, but no more so than friends might do. 80 I am not satisfied that the Plaintiff has proved, as she must, that the relationship between herself and the Deceased demonstrated such a degree of mutual commitment as would justify a finding that it was, at any time, a de facto relationship for the purposes of s.61B(3B) of the Act. 81 Accordingly, the Plaintiff’s claim also fails on this ground.

Whether relationship continued

82    As I have found that the Plaintiff has failed to prove that a de facto relationship existed at all, it is unnecessary to resolve this issue.


Order

83    The Plaintiff’s Summons is dismissed. I will hear the parties as to costs.
– oOo –