Vaher v Gibson
[2008] SADC 75
•19 June 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
VAHER v GIBSON
[2008] SADC 75
Judgment of His Honour Judge David Smith
19 June 2008
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF STATUTES - RETROSPECTIVE OPERATION - AMENDING ACTS
Applicant applied in March 2007 for declaration that she was domestic partner of deceased within meaning of Part 3 of Family Relationships Act 1975 (SA) – Part 3 of said Act was amended by replacing the original “putative spouse” provisions with new and less stringent “domestic partners” provisions – new Part 3 provisions commenced operation in June 2007 – Applicant amended application and purported to rely on current provisions of Part 3 – consideration of whether current provisions applied and/or were retrospective – discussion of principles of statutory construction as to retrospective operation of amending statutes.
Held: that the current Part 3 “domestic partners” provisions of the said Act were not retrospective in operation but nonetheless applied to the application because they operated to determine future rights by reference to past or antecedent circumstances – discussion of statutory requirements and onus of proof for application under current “domestic partners” provisions in Part 3 of said Family Relationships Act.
Held: Applicant declared to be domestic partner of deceased within the meaning of the current Part 3 provisions of the said Act.
Family Relations Act 1975 Part 3; Statutes Amendment (Domestic Partners) Act 2006 s5, s11; Acts Interpretation Act 1915 s16, referred to.
Brook v Flinders University (1988) 41 SASR 119; Maxwell v Murphy (1957) 96 CLR 261; Fisher v Hebburn Ltd (1960) 105 CLR 188; Coleman v Shell Company of Australia Ltd (1945) 45 SR (NSW) 27; Robertson v Nunawading [1973] VR 819; Roy v Sturgeon (1986) 11 NSWLR 454; In re Fagan, Deceased (1980) 23 SASR 454; Jones v Dunkel (1958) 101 CLR 298; Cornwall v Rowan (2004) 90 SASR 269; Payne v Parker [1976] 1 NSWLR 191; Spence v Demasi (1988) 48 SASR 536, considered.
EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL
In context of application that Applicant and deceased had been domestic partners within the meaning of the provisions of Part 3 of Family Relationships Act 1975 (SA) evidence given by witnesses of statements made by deceased as to both his relationship with the Applicant, his intentions regarding the disposition of his estate and generally – discussion of relevancy and admissibility of such statements – discussion in particular of whether given relevance such evidence should be excluded as inadmissible hearsay or whether it should be admitted as original evidence or evidence of only the fact of what was said.
Held: though not crucial for final decision evidence of deceased’s statements as deposed to by other witnesses received on the basis of it being it evidence only of the fact of what was said by the deceased to the witness not for the truth of the content of what was said.
VAHER v GIBSON
[2008] SADC 75
In this action Annelies Vaher applies for a declaration that she was the domestic partner of Fabjan Zizmond, now deceased, within the meaning of the recently amended Part 3 of the Family Relations Act 1975 (SA).
Background Circumstances
On the 12th April 2003 Fabjan Zizmond died in the town of Ozeljan, in his native Slovenia. He was 87 years old. He once lived and raised a family in Australia. He is survived by his divorced wife, Giannina and his four daughters, Laura, Gloria, Luciana and Anna, all of whom live in Victoria. In about 1969, when he and his family were living in Australia, the deceased separated from them, a divorce quickly followed and thereafter he remained estranged from all of them until, in 1993, his youngest daughter Anna visited him in Slovenia. He died with property in Slovenia and a tenancy in common in a house property in Hallett Cove (see affidavit of Intervener Anna Maria Gibson sworn 29th November 2007 Exhibit I(2)).
The Applicant alleges that from 1981 until 1992 she lived with the deceased as his de facto wife in South Australia and later in Slovenia and that further in their time together in South Australia they built and then lived in the house at Hallett Cove. The deceased originally owned this property and during the time of their relationship he transferred a tenancy in common to her.
The applicant claims to be entitled to the remaining half share of the Hallett Cove property. She says, inter alia, that he promised to give her his interest. She currently lives there with her son.
It seems that the deceased did not make a will. The rules for the distribution of an intestate estate, as embodied in s72G of the Administration and Probate Act 1990, entitle a “domestic partner” of a deceased person to a share of the intestate estate but only if he or she was declared to be such under the Family Relationships Act, as at the date of death. The Applicant therefore has no entitlement to the deceased’s estate under those rules. However, the Applicant can claim a further interest in the Hallett Cove property by first obtaining the declaration sought in this action then applying for provision from the deceased’s estate pursuant to the Inheritance (Family Provision) Act 1972 (SA). There is no requirement, for such a claim, that she be his “domestic partner” at the time of his death (see ss 4 and 6 of the said Inheritance Act). The Applicant intends to take that course and hence this application. Further, she has made it clear that her only interest is the Hallett Cove property.
It is usual that a single action be instituted in the Supreme Court seeking both a declaration and then provision from the estate. This is not essential. This Court plainly has jurisdiction to make the declaration sought in isolation (see s5 of the Family Relationships Act 1975), as long as it is satisfied amongst other things, that the applicant’s “rights or obligations” depend on the declaration (see s11B(1)). The application cannot be an arid exercise.
This application is opposed by the Intervener, Anna Maria Gibson, who after almost 25 years of having no contact with the deceased, re-established contact with him in 1993.
The Issues
The primary issue to be resolved in this action is whether or not the evidence satisfies me that the applicant was the domestic partner of the deceased as defined by the Family Relationships Act 1975. The Intervener accepts that the Applicant lived with the deceased for some time, but that it was a business relationship.
Part 3 of the Family Relationships Act 1975, which contains the relevant provisions, was recently amended.
The Intervener’s counsel, Mr Sergi, contends that, notwithstanding that the application is made under the current provisions of Part 3, those provisions are not retrospective so that the original provisions are applicable. I will now deal with this contention.
Applicable legislation – Retrospectivity
The Statutes Amendment (Domestic Partners) Act 2006, by s5, deleted the original 1975 Part III provisions headed Putative Spouses, namely sub-s (1) to (7) of s11 (“original provisions”) and replaced them with ss 11, 11A and 11B under the heading Domestic Partners (“current provisions”). This amendment came into operation on the 1st June 2007. Its provisions not only cover the ground of the original provisions, which applied to husband and wife de facto relationships, but also extend to same sex relationships and those in which there is no sexual relationship.
Which provisions apply is important because the statutory requirements for a declaration of, putative spouse under the original provisions, and domestic partner under the current provisions, differ. The current statutory requirements are in some respects less stringent. For instance, the original provisions require, inter alia, that there be a continuous period of five years cohabitation (see s11(1)(b)), and that the claim be supported “by credible corroborative evidence”. The current provisions, however, require, inter alia, cohabitation for continuous period of only three years (see s11A (a)(i)), and whilst there is a long list of statutory considerations to which the Court’s attention is directed (see s11B (3)(a) to (i)), corroborative evidence is not required.
The Summons in this action, which was issued by the Court on the 22nd March 2007, sought the following orders:
Pursuant to the provisions of section 11 of the Family Relationships Act 1975, that, on the 25th day of July 1991 VAHER ANNALISE of 22 MINNIPA DRIVE HALLETT COVE SOUTH AUSTRALIA home duties and FABIAN ZIZMOND late of 22 MINNIPA DRIVE HALLETT COVE SOUTH AUSTRALIA deceased were putative spouses, one of the other.
Summons issued pursuant to section 11 of the Family Relationship Act 1975
Then pursuant to leave granted on the 23rd April 2008, the Applicant amended the summons so that it particularised the alleged period of cohabitation and purported to invoke the current provisions of Part 3. It reads as follows:
Pursuant to the provisions of section 11 of the Family Relationships Act 1975, that between the years 1981 and 1992 VAHER ANNALISE of 22 MINNIPA DRIVE HALLETT COVE SOUTH AUSTRALIA home duties and FABIAN ZIZMOND late of 22 MINNIPA DRIVE HALLETT COVE SOUTH AUSTRALIA deceased were putative spouses, one of the other.
Summons issued pursuant to section 11B of the Family Relationship Act 1975
It seems that though the amended summons was served (286), none of the other procedural steps necessary to perfect the amendment were undertaken. Nonetheless, the trial has proceeded, without objection, on the basis of the “amended” summons. I am content to proceed on the basis of the amendment and on the further basis that the amendment operates from the time leave was granted, to avoid the incongruity of an application being made under legislation not yet in existence (see Brook v Flinders University[1]).
[1] (1988) 41 SASR 119 at 125
I set out hereunder the current provisions upon which the applicant relies:
Part 3—Domestic partners
11—InterpretationIn this Part—
close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—
(a) the relationship between a legally married couple; or(b)a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind.
Note—
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
11A—Domestic partners
A person is, on a certain date, the domestic partner of another person if he or she is, on that date, living with that person in a close personal relationship and—
(a) he or she—(i)has so lived with that other person continuously for the period of 3 years immediately preceding that date; or
(ii)has during the period of 4 years immediately preceding that date so lived with that other person for periods aggregating not less than 3 years; or
(b)a child, of whom he or she and the other person are the parents, has been born (whether or not the child is still living at that date).
11B—Declaration as to domestic partners
(1) A person whose rights or obligations depend on whether—
(a) he or she and another person; or
(b) 2 other persons,were, on a certain date, domestic partners 1 of the other may apply to the Court for a declaration under this section.
(2) If, on an application, the Court is satisfied that—
(a)the persons in relation to whom the declaration is sought were, on the date in question, domestic partners within the meaning of section 11A; or
(b)in any other case—
(i)the persons in relation to whom the declaration is sought were, on the date in question, living together in a close personal relationship; and
(ii)the interests of justice require that such a declaration be made,
the Court must declare that the persons were, on the date in question, domestic partners 1 of the other.
(3)When considering whether to make a declaration under this section, the Court must take into account all of the circumstances of the relationship between the persons in relation to whom the declaration is sought, including any 1 or more 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)the degree of financial dependence and interdependence, or arrangements for financial support;
(d)the ownership, use and acquisition of property;
(e)the degree of mutual commitment to a shared life;
(f)any domestic partnership agreement made under the Domestic Partners Property Act 1996;
(g)the care and support of children;
(h)the performance of household duties;
(i)the reputation and public aspects of the relationship.
(4) A declaration may be made—
(a)whether or not 1 or both of the persons in relation to whom the declaration is sought are, or ever have been, domiciled in this State; or
(b)despite the fact that 1 or both of them are dead.
(5)It must not be inferred from the fact that the Court has declared that 2 persons were domestic partners 1 of the other, on a certain date, that they were domestic partners as at any prior or subsequent date.
(6)For the purpose of determining whether a person was, on a certain date, the domestic partner of another, circumstances occurring before or after the commencement of this Part may be taken into account.
Counsel for the Intervener submitted that, as the subject of the legislation is substantive and not procedural law, in the absence of clearly expressed legislative intent, the common law presumption against retrospectivity, as reinforced by s16(1) of the Acts Interpretation Act 1915 (SA), should apply. In response counsel for the Applicant, Mr Wilson, contended that the current provisions clearly apply. He directed me to the position adopted by a Directions Hearing Judge and referred in particular to sub-s (6) of s11B of the current provisions.
The principles are clear. In the absence of some clear statement in the legislation, an Act, including an Amending Act, dealing with matters of substantive law, will be assumed not to have retrospective operation (see Maxwell v Murphy[2]; see also Fisher v Hebburn Ltd[3]).
[2] (1957) 96 CLR 261 at 267 per Dixon CJ
[3] (1960) 105 CLR 188 per Fullagar J at 194
In my view, the current provisions apply and the question of whether they apply retrospectively simply does not arise. Rather, they operate to determine future rights by reference to past circumstances. That is not retrospective operation. I explain why hereunder.
The current Part 3 provisions operate for the future in that they provide statutory parameters for determining whether a relationship as defined exits or has existed between two persons to enable either of them, or another person whose rights or obligations depend on the existence of the relationship, to pursue rights which are provided by other legislation (eg Inheritance (Family Provision) Act). An applicant for a declaration must satisfy the Court, inter alia, that he or she is a person, whose rights or obligations depend upon whether he or she or two other persons, are or have been, domestic partners as defined (see sub-s (1) of s11B). Further, in considering whether an applicant is entitled to such a declaration, amongst other matters, the Court “... must take into account all the circumstances of the relationship ...” (see s11B(3)), and, in doing so, may have regard to “circumstances occurring before or after the commencement of ” the provisions (see s11B(6)).
Though I consider that the current provisions apply in this case, it is not because s11B(6) indicates a legislative intent that the current provisions operate retrospectively. Rather, s11B(6) simply provides that the Court may take into account any relevant antecedent circumstances in deciding whether to make the declaration which then will operate for the future.
There is a distinction to be drawn between legislation which is truly retrospective in the sense of altering prior accrued rights and entitlements, and that which has future operation by reference to past events. This distinction is best explained by Jordan CJ in Coleman v Shell Company of Australia Ltd[4].
Two questions arise, first whether to treat the Act of 1942 as restoring the right of action would be to give it a retrospective operation, and second, if it would, whether the Act should be treated as intended to have, in this respect, a retrospective operation.
As to the first question, it is to be noted that there has been some ambiguity in the use of the word “retrospective”. In some cases, it has been said that it would give a retrospective operation to a statute to treat it as impairing an existing right or obligation or creating a new right or obligation: In re School Board Election for Parish of Pulborough [1894] 1GB 725 at 737; In re Athlumney [1898] 2 QB 547 at 551-2. On the other hand, it was said by Buckley L.J. in West v Gwynne [1911] 2 Ch 1 at 11-12 that an Act is retrospective if it provides that as at a past date the law shall be taken to have been that which it was not. It is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future. Similarly it has been said that an amendment of a section in an Act makes it retrospective in its original form but not retrospective so far as it is new; Ex parte Todd (1887) 19 QBD 186 at 195.
Upon a consideration of the authorities, it think that, as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities but it would not be giving it a retrospective operation to treat it as governing the future particular rights or liabilities.
[4] (1945) 45 SR (NSW) 27 at 30 and 31
Similarly the Full Court of the Supreme Court of Victoria (Winneke CJ, Gowans and Starke JJ) in Robertson v Nunawading[5] said on the same topic at 823 and 824 as follows:
[5] [1973] VR 819
The common law principle which is applicable may for present purposes be taken from two statements, recently cited by Gibbs J., in Mathieson v Burton (1971) 124 CLR 1 at p22; [1971] SLR 533, one from the judgment of Wright J., in Re Athlumney; Ex parte Wilson, [1898] 2 QB 547 at pp 551-2; [1895-9] All ER Rep 329, the other from the judgment of Dixon J., in Maxwell v Murphy (1957) 96 CLR 261 at p267; [1957] ALR 231. The first is as follows:
“Perhaps no rule of construction is more firmly established than this--that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”
The other statement, that of Dixon, J., is as follows:
“The general rule of the common law is that the statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.”
It is to be observed that this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that: Maxwell on Interpretation of Statutes 12th ed., at pp. 216-217. The principle is concerned with the case where the enactment would apply to these antecedent facts and circumstances in such a way “as to impair an existing right or obligation" or "as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”
As Fullagar J. said in Ku-ring-gai Municipal Council v Attorney-General (NSW) (1957) 99 CLR 251 at p269: “What the rule really means is that prima facie a statute must not be construed so as to change the legal character or the legal consequences, of past events and transactions.”
The current provisions of Part 3 speak only as to the future by reference to past events and can do so without being characterised as retrospective.
So I conclude that the current provisions of Part 3 of the Family Relationships Act 1973 (SA) headed Domestic Partners apply to this application and in accordance with sub-s (6) of s11B it is appropriate, and indeed necessary in this case, to take into account circumstances occurring before the date of commencement of Part 3, namely the 1st June 2007. Before turning to the evidence, I set out the statutory requirements for a declaration in this case.
The Statutory Parameters – Onus of Proof
For the Applicant to obtain a declaration, she must satisfy the following statutory requirements:
·that she had a close personal relationship with the deceased (see ss 11 and 11A);
·that she lived with him in such a relationship continuously for a period of 3 years or for an aggregate period of 3 years within a period of 4 years (see s11A(a)(i) or (ii)); and
·that her rights in relation to the estate of the Deceased and in particular his interest in the Hallett Cove property depend on whether she was the deceased’s domestic partner (see s11B(1)).
The material portions of s11 define “close personal relationship” as “... the relationship between 2 adult persons who live together as a couple on a genuine domestic basis ...”
Finally, on considering whether to make the declaration sought, the Court must take into account all the circumstances of the relationship, including the following considerations which are material to this case:
·the duration of the relationship;
·the nature and extent of common residence;
·the degree of financial dependence and interdependence, or arrangements for financial support;
·the ownership, use and acquisition of property;
·the degree of mutual commitment to a shared life;
·the performance of household duties, and
·the reputation and public aspects of the relationship.
(see s11B(3)(a), (b), (c), (d), (e), (h) and (i)).
In relation to the above statutory considerations, the draftsman has had regard to the well known judgment of Powell J at pp 458, 459 in Roy v Sturgeon[6], which, I suggest, still remains helpful.
[6] (1986) 11 NSWLR 454
The Applicant must prove, her entitlement to the declaration, on the balance of probabilities “but with due regard to the gravity of the consequences of making the declaration sought …” (see In re Fagan, Deceased[7]; see also Briginshaw v Briginshaw[8]).
[7] (1980) 23 SASR 454 at 464
[8] (1938) 60 CLR 336
I now turn to the evidence and, in particular, the assessment of the witnesses and the findings.
Assessment of Witnesses – Credibility and Reliability
In the Applicant’s case there was oral evidence adduced from the Applicant, her son Mart Vaher, and her one time neighbour, Josephine Larto. The Intervener, Anna Maria Gibson, gave oral evidence. In addition to a number of documents and photographs, I received as evidence the following:
·Affirmation of the Applicant made 22nd March 2007;
·Affidavit of Applicant sworn 7th April 2008;
·Affidavit of Anna Maria Gibson sworn on the 4th December 2007.
The Intervener, Anna Gibson, did not give or lead direct evidence about the relationship alleged between the Applicant and the deceased, though she did recount over objection what the deceased told her about the nature of the relationship (205). It was the Intervener’s case that the Applicant’s evidence and that of her witnesses about the nature of the relationship was wholly unacceptable, at least to the extent that it sought to establish more than a business relationship.
I do not accept that submission. I accept the evidence of the Applicant, her son and her neighbour as being credible and reliable. Though 84 years old, the Applicant was alert and articulate. There were no unexplained serious inconsistencies or other aspects of her evidence which caused me to entertain the suggestion that her evidence was wholly implausible. I accept her as a witness of truth. I also regard the evidence of Mart Vaher and the neighbour as being credible and reliable.
I will return to the particular criticisms and why I reject them in due course.
So too I accept that both the affidavit and oral evidence of the Intervener, Anna Gibson, is reliable and truthful.
Before concluding this matter and making the necessary final orders I turn to an issue of admissibility which was left unresolved in the course of the trial.
Admissibility of what was said by deceased to various of the witnesses
Throughout the evidence in this case there has been a recounting by witnesses of statements made by the deceased. Most of this recounting, given its relevance, is admissible on the basis of the fact of what was said rather than the content of it. It serves to explain ongoing conduct. In a piece of litigation like this which is examining a relationship over a period of years such evidence must be admissible at least on that basis. However, there were some contentious areas which provoked specific objections. They touched on the deceased’s intention as to the disposition of his interest in the Hallett Cove property and also what he said to his daughter, in particular about his relationship with the Applicant. I turn then to these contentious areas.
In the Applicant’s evidence, both in chief and in cross-examination, she recounted a statement made to her by the deceased in relation to when he intended to do with his share of the Hallett Cove property. The Applicant’s son, Mart Vaher, said, in his evidence, that the deceased told him that the Hallett Cove house was going to be his one day. Finally, the Intervener, Mrs Gibson, said that in 1996, when she visited the deceased for the second time in Slovenia, he told her that his relationship with the Applicant was one of business and convenience and that she, Mrs Gibson, should “deal” with the Hallett Cove property. This evidence was received by me subject to objection. The issue for me is whether I admit this recounting of what the deceased said as original evidence or regard the truth of its contents as inadmissible hearsay, or accept it, as evidence of the fact of what was said.
This topic has been the subject of much judicial comment in the area of, in particular, claims against estates under the various States statute such as the Inheritance (Family Provisions) Act 1972 (SA). I here refer to the helpful discussions in this area in the two leading text books on such claims, namely Testators Family Maintenance in Australia and New Zealand[9], and Family Provision after Death[10].
[9] by RG Davern Wright 3rd ed and Ch 17
[10] by Anthony Dickey 1st ed at 125-127
Resolving this vexed question one way or the other will not affect my final decision in this case.
Firstly, the question of what the deceased said in regard to the disposition of the Hallett Cove property, is only peripherally relevant to the character of his relationship with the Applicant which is the issue in this action. Of course what he said to his daughter in 1996 after the collapse of the relationship, as to the character of the relationship is clearly relevant. However, even if I accepted it as original evidence, its probative value is minimal, given the circumstances which prevailed at the time it was said, and bearing in mind, as I conclude hereunder, that there is overwhelming evidence to the contrary.
If driven to a decision about the basis upon which such evidence should be admitted, I would accept it as admissible for only the fact of what was said as opposed to the truth of it.
I turn then to the evidence and my findings in respect of it.
Evidence - Findings
The following narrative constitutes my findings of fact.
In 1980, the Applicant first met the deceased. She was then a 56 year old widow living in her own home at 13 Lancelot Drive, Daw Park with her only son. As indicated, the deceased was a 59 year old divorcee with a former wife and four daughters, all of whom were living in Victoria. He lived alone in his own home at 79 Springbank Road, Clapham. He also owned a block of land at 22 Minnipa Drive, Hallett Cove. The Applicant and the deceased, had much in common. Both had migrated to Australia from Europe in the post war years and had worked and made a life for themselves in Australia but were alone. They began courting one another.
At 79 Springbank Road, Clapham
In late 1981, at the deceased’s invitation, the Applicant moved into the deceased’s house at Clapham. The Applicant’s son remained living with his new wife at the Applicant’s house at Daw Park. At the Clapham house:
·the Applicant and the deceased slept in the same bed and had a sexual relationship (18);
·the Applicant did the cooking (18);
·the Applicant contributed to household expenses and paid for food and paid some bills (19);
·they socialised as a couple at both the German and Slovenian Clubs (19);
·during this time at the Clapham house, in particular in March 1982, the applicant joined the deceased “brush cutting” on Kangaroo Island. She cooked for him and the other workers there, including her son, and slept with him in a tent (20; Exhibit P1).
In paragraph 3 of her affirmation made on the 14th March 2007 (see Exhibit I(2) at 4), the Applicant asserted that she commenced cohabiting with the deceased in about July 1980 at her house in Daw Park. That is inconsistent, not only with her evidence to which I have just referred, but also with a later affidavit sworn by her on the 11th April 2008 (see Exhibit I(2) at 6), which confirms what she said in evidence. When confronted with this inconsistency in cross-examination, the Applicant explained convincingly that paragraph 3 in the affirmation was a mistake (40-45). This inconsistency must have escaped the attention of the Applicant’s solicitor and barrister, Mr Wilson, who took both the affirmation and the oath, but still let the matter go forward without averting to it, or without having his client proffer an explanation before being confronted with it in cross examination. I unhesitatingly accept the Applicant’s explanation and find that she first lived with the deceased as she said in the house at Clapham. In this respect, I note that the Applicant’s son and her Daw Park neighbour, Josephine Larto, both said that the Applicant first lived with the deceased at the Clapham house early in their relationship (see Mart Vaher 134-136; Larto 188).
At Lancelot Drive, Daw Park
Then in 1983, the deceased decided to build a house on his block in Hallett Cove and to do so, sold the Clapham house in about April 1983 for $43,500 (22; see also Exhibit I(1) at 42-49). This decision was discussed with the Applicant and agreed to by her. Having sold and moved out of the Clapham House, the Applicant and the deceased then moved into her house at Daw Park (22-24).
At the Daw Park house, which the deceased and the Applicant shared with the Applicant’s son and his wife:
·the Applicant and the deceased shared a bedroom (22, 23);
·the Applicant cooked and washed for the deceased (22);
·they, that is the Applicant and the deceased, commenced building the house on the block at Hallett Cove and the Applicant not only contributed physically to the work but also financially (22, 23, 39; and Exhibit I(1) at 52-59).
At 22 Minnipa Drive, Hallett Cove
Then in about 1984 or 1985 (23; see also Exhibit I(2) para 12 at 7), when the house at 22 Minnipa Drive, Hallett Cove was fit for habitation but not fully completed, the Applicant and the deceased moved in. The living arrangements were the same there as they were at Clapham and Daw Park and were as follows:
·They shared a bedroom (23, 24);
·The Applicant did all the cooking (23, 24);
·They socialised together and “went out” as a couple, particularly to the Slovenian Club (24);
·The Applicant washed clothes for the deceased (23);
·The Applicant continued to contribute to the cost of ongoing works on the house at Hallett Cove (39; see also Exhibit I(1) at 52-59).
Then in about 1984 (25) the Applicant purchased a return ticket to Slovenia for the deceased to visit his homeland. The cost was $1600. The Applicant obtained these monies from her sister and brother-in-law who visited and stayed with her and the deceased at Hallett Cove for eight weeks or so. The payment of $1600 was a payment in the nature of board for their stay (25). The deceased was overseas for two months. When he returned he announced that he had placed a deposit on a farmhouse in Ozeljan, Slovenia (25; see also Exhibit I(1) at 25). The Applicant said that the deceased wanted to sell the Hallett Cove house in order to complete the purchase of the Slovenian farmhouse. However, rather than doing that, he ended up borrowing $15,500 from the Westpac Bank to complete the purchase. This borrowing occurred in about April 1986 (26; see also Exhibit I(1) at 87).
The Applicant said that the deceased proposed that they live in Slovenia. However, there was no money for the trip. The Hallett Cove house, she said, was not saleable because, although occupied by them, it was unfinished (26). Accordingly, the Applicant and the deceased agreed that the Applicant would sell her house at Daw Park and with some of the proceeds purchase half an interest in the house at Hallett Cove (26, 27). So the Applicant did that and sold her Daw Park home for $63,500 in about April 1986. She then purchased half an interest in the Hallett Cove property for $35,000 (27, 28; see also Exhibit I(1) at 64, 80, 81 and 84). The transfer document itself disclosed that the deceased transferred a tenancy in common to her for “no monetary consideration” (see Exhibit I(1) at 84).
There was much controversy about what the Applicant appreciated about the nature of the interest she received and the fact that the stated consideration for the transfer was “no monetary consideration” (73-76). Because it was being firmly suggested to her that she was a party to an evasion of payment of stamp duty, I warned her that she could decline to answer questions about the topic on the grounds that it might incriminate her (76). She had in any event already protested her lack of knowledge about those two matters (71, 76). It was submitted by Counsel for the Intervener that the transfer of the tenancy in common was an item of circumstantial evidence which supported the inference that the relationship between the Applicant and the deceased was purely one of business. Further, it was submitted that I should not accept the Applicant’s protestation of innocence about the issue of failing to disclose the consideration for the transfer and that this was one of a number of matters indicative of the Applicant’s lack of credibility. I do not accept either contention. The Applicant’s protestations of ignorance about both matters were understandable and convincing. I move on with the narrative.
The Applicant said that at about the time she purchased the interest in Hallett Cove the deceased promised her his half (67). This assertion emerged in cross-examination when it was put to her that her objective overall was to recover monies owed to her by the deceased. In response she protested that she did not want money but rather wanted the half of the house that the deceased promised to her (67). She said that the deceased said to her “The other half will go to you when I die” (67). I note that this promise is not deposed to in either the Applicant’s affirmation or her affidavit and nor is it mentioned in the letters of demand, which were later written on her behalf, to the deceased by her solicitor J Richard Croft. Despite those matters which raise a query about this particular aspect of her evidence I accept it as truthful. I note also that the applicant’s son Mart Vaher said in his evidence that, when he was seeing his mother and the deceased off to Slovenia at the airport, the deceased shook his hand and said “... you look after the house because you know it’s going to be yours one day ...” (144). I regard Mart Vaher’s evidence as supportive of that of his mother on this topic.
At Ozeljan, Slovenia
On 13th May 1986, the Applicant and deceased departed for Slovenia (28). They travelled there via Germany where the Applicant purchased a Volkswagen Transporter for them (28; see also photograph Exhibit P11 at 25). With the help of the Applicant’s sister, the vehicle was loaded with household goods. They then drove from Germany to Ozeljan. They settled into the derelict farmhouse in Ozeljan as husband and wife (29; see also photograph Exhibit P11 at 25). They shared the same bedroom. The Applicant cooked the meals. They socialised together (29; see also photographs Exhibit P2). The Applicant said, and I accept it, that she returned from time to time to Germany to collect furniture and tools and building materials to assist with the refurbishing of the farmhouse (30). She needed and obtained formal permission to live and move in and out of Slovenia and she had no difficulties obtaining that (30; see also Exhibit P3). In particular, she went to Germany in order to collect her pension, which was paid to her sister’s address in Germany (32). The Applicant assisted physically and financially not only with the repair and renovation of the farmhouse, but also with the operation of the farm itself (31). For instance, contractors and workers demanded to be paid, not in the local currency, but in Deutsche Marks, which the Applicant was able to obtain (32). She said, and I accept it to be so, that at one stage she paid the equivalent of $10,000 in Deutsche Marks for the building of a cement slab for the hay loft in the farm (32).
During this time in Slovenia, it is clear that the Applicant and the deceased lived a de facto marriage (32; see also Exhibit P1(2) at p8).
In the course of this period in Slovenia, the Applicant also made three trips back to Australia in 1988, 1990 and 1991. These were brief visits of a month or so. On these occasions, she stayed with her son at the Hallett Cove house. There were periods also during her time in Slovenia when the house at Hallett Cove was rented by tenants. In 1991, Yugoslavia began fragmenting. Slovenia sought independence and fighting broke out near to Ozeljan (32). So, at about that time, at the urging of the deceased, who said that he was concerned for her safety, the Applicant left Slovenia for Germany and then Australia (32).
In 1992, the Applicant’s relationship with the deceased ended. The Applicant was on route back to Slovenia to join the deceased and telephoned him from Germany. She learned upon her return to Europe that the deceased had “… got another woman” (36). In the telephone call with him, he told her not to come to Ozeljan, as he was used to living by himself. The Applicant said that she confronted him with what she had heard and he responded by saying “… I haven’t got one, I have four” (36). The Applicant said that was the last time she spoke with the deceased. Needless to say, she did not travel into Slovenia.
Aftermath
The Applicant returned to Australia and resumed living in the Hallett Cove house with her son (36). She wrote to the deceased, but received no response. She then engaged the services of a lawyer, Mr J. Richard Croft, who over a period of time from September 1992 until mid-1993 corresponded with the deceased. On behalf of the Applicant, he demanded repayment of monies contributed by the Applicant for both the Hallett Cove house and the farmhouse in Slovenia, and also sought the transfer to the Applicant of the deceased’s interest in the Hallett Cove house (37; see also correspondence Exhibit I(1) at 26 to 34).
The Applicant then learned, through letters from the nieces of the deceased, that he had died on the 12th April 2003 (38; see also letters Exhibit I(1) at 35 to 37).
The Applicant made it clear in her evidence that she intends to bring a claim against the estate of the deceased in South Australia, namely the Hallett Cove property (39).
In respect of the above findings, I indicate that I have relied upon the evidence of not only the Applicant, but also her son, Mart Vaher, and her neighbour, Josephine Larto. Both of them, particularly Mart Vaher, confirmed the Applicant’s evidence as to the nature of the relationship between her and the deceased. If the original provisions had application, then I would regard the evidence of Mart Vaher and Josephine Larto as credible corroborative evidence supportive of the claim (see s11(5) of the original provisions).
I have also had regard to the evidence of the Intervener, Anna Gibson, who in addition to confirming the truth of her affidavit gave evidence about her contacts with her father before his death. I accept Ms Gibson’s evidence as truthful and reliable.
First of all, she confirmed the truth of the contents of her affidavit sworn on the 28th November 2007 in these proceedings (see Exhibit I(2)). She said paragraph 21 was incorrect insofar as it indicated that she reunited with her father in 1994. It was she said 1993. She said also that paragraph 17 was incorrect insofar as it asserted that Tooperang was in country Victoria. It is of course in South Australia. I accept the matters deposed to by Mrs Gibson in the said affidavit.
In her oral evidence, Mrs Gibson related more detail of what occurred on her second visit to her father in Slovenia in 1996. She said that she stayed a week and observed that her father was living in a loving relationship with a woman (200, 201). Over objection she then related what the deceased had told her about the Hallett Cove house property and the Applicant (202). She said the deceased instructed her to sell his share of the Hallett Cove property (202) and told her that it was occupied by a woman with whom he had “... a business arrangement that he entered into and convenience ...” (205). I accept what Mrs Gibson said was related to her by her late father, though I note that in her affidavit she made no mention of the deceased telling her that his association with “... the woman ...” was a business arrangement or one of convenience.
None of the above evidence of Mrs Gibson erodes the earlier findings of fact I have made, as to the nature of the relationship between the Applicant and the deceased. As previously indicated, even if what the deceased said to Mrs Gibson as recounted by her about “... the woman ...” be accepted by me as evidence of the truth, it would be of small probative value when weighed against the direct and circumstantial evidence adduced in the Applicant’s case.
Intervener’s Criticisms
As indicated, counsel for the Intervener challenged the evidence of the Applicant and her witnesses on a range of bases, but in particular on the ground that it was not credible. Out of deference to the articulate presentation by counsel, Mr Sergi, I set out my reasons for rejecting the primary criticisms.
Banking Records
I do not accept that anything adverse to the Applicant can be inferred from the apparently piece-meal disclosure of banking records, or the fact that there was no joint bank account of the Applicant and the deceased. The Applicant explained that some of these banking records had been thrown out. That seems to me to be a perfectly acceptable explanation. Further, I do not accept that she was evasive about this topic. Similarly, no adverse inference can necessarily arise from the lack of documentation relating to either the payments which the deceased allegedly made to Miss Delon, or the bridging loan of $15,500. Apart from the fact that these records, if they exist, are the records of the deceased, these matters are really collateral issues of background. Even if they were not, and even if these documents were within the power and possession of the Applicant, an adverse inference, even in conjunction with other matters, does not reasonably arise.
Building of the house at Hallett Cove
There is no evidentiary or other requirement that the Applicant’s evidence about her contributions be corroborated even if this application were prosecuted under the original provisions. Also, there is not necessarily anything sinister in the fact that some of these contributions were made in cash. The black book record (see Exhibit I(1) at 51-59) was, admitted by the Applicant to be, a later compilation. She agreed that it was prepared by her when she came back from Yugoslavia and was given to her solicitor, Mr Croft (65, 66). She said “… I wrote down how I remembered everything and it is the truth and nothing but the truth …” (66; see also 95). Nothing adverse could reasonably arise from that evidence.
Bedford Park Address
It was contended by counsel, Mr Sergi, that because the deceased’s bank statements from April 1983 to December 1983, which recorded the receipt of his social security pension, showed an address at 57 Malcolm Street, Bedford Park, I should conclude he was living there, and therefore, not then living with the Applicant as she said. The Applicant, whom I accept, says that this was a rouse by the deceased to deceive the Department of Social Security. She said, that the Bedford Park address was an address of a friend of the deceased named Richard Jenko (91). She confirmed that in 1983 the deceased was living with her at Daw Park (91). The Applicant’s evidence in this respect is supported by the evidence of her son (138), and by the evidence of her neighbour at Daw Park, Mrs Larto (187).
Hallett Cove
I have in part dealt with this argument in paragraph 54 above. The Intervener’s counsel however further contended that I should find that the Applicant’s contention, that the deceased promised her the balance of the property (67), was a recent invention and a figment of her imagination. Again, I accept the Applicant as to what was said to her. As indicated, this is indirectly supported by the Applicant’s son, who told the court that the deceased indicated to him that the Hallett Cove property would be his one day (144).
Failure to call available evidence
The next point of criticism was that a “Jones v Dunkel inference” should be drawn against the Applicant by reason of her failure to call certain further evidence which was apparently available (see Jones v Dunkel[11]).
[11] (1958) 101 CLR 298
Counsel for the Intervener contended that the Applicant failed to call a number of witnesses who could have given evidence about the nature of the relationship between her and the deceased such as people from the Slovenian Club, visitors to the Hallett Cove house such as the Applicant’s sister and brother-in-law, and Ingrid, the wife of Mart Vaher, to name a few of the many who were mentioned. These witnesses were not called and as a consequence it was contended that the rule in Jones v Dunkel should be invoked against the Applicant.
In my view, the rule has no application.
The rule in Jones v Dunkel is that “... the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case ...” (Cross on Evidence[12]; see also Cornwall v Rowan[13]).
[12] 3rd Aust Ed 1986 at 35, 36
[13] (2004) 90 SASR 269 at 414, 415
It is not sufficient merely to draw attention to witnesses who could have been called but were not and leave it at that. The circumstances which lead to the inference are:
·that evidence was not tendered which was within the power of one of the parties, as opposed to the other, to tender, and that further it was expected and natural for that party to produce it (see Payne v Parker[14]; Spence v Demasi[15]); and
·that the uncalled evidence would have the capacity to elucidate or put a true complexion on a matter of controversy between the parties (see Payne v Parker[16]).
[14] [1976] 1 NSWLR 191 per Glass J A 201-202
[15] (1988) 48 SASR 536 per Cox J at 547, 548
[16] (supra) per Glass J A at 201-202
In my view, it was not expected and natural that the Applicant would call the further witnesses mentioned by Intervener’s counsel. Rather, the Applicant called two corroborative witnesses, her son and her neighbour, and was content to leave it at that. Further, the Applicant’s case was not necessarily needing any elucidation or further clarification. Rather, the Applicant plainly took the view that this was sufficient evidence to support the Applicant’s contention of the nature of the relationship.
The consequence of any application of this rule would be an inference that the uncalled evidence would not have assisted the Applicant’s case. In this case, applying the rule would have no consequence because I have concluded that the evidence called by the Applicant which was perhaps not all the evidence which might have been available, has satisfactorily proved the case.
Timing
The Intervener’s next criticism really amounted to an invitation not to accept the Applicant’s evidence about cohabitation commencing in 1981 by reason of other things she allegedly said in her evidence. Counsel, Mr Sergi, interpreted the Applicant’s evidence at pages 16 and 17 as indicating as follows:
·that her husband died in 1975 when they were living at 16 Lancelot Drive, Daw Park;
·that she lived on alone at that address in Daw Park after his death for five years; and
·that thereafter she lived at Daw Park for a further five years with her son.
If this were correct, it would be inconsistent with her evidence that the relationship commenced in 1980 and cohabitation in 1981 because she could not have been living with the deceased until on or about 1985. However, this submission by counsel with respect arises from a plainly incorrect reading of the evidence. The evidence reads as follows:
A.My husband he was very sick man, he had pancreatic cancer and he died 1975 on 8 August in Daw Park.
.........
Q.You owned the house at 16 Lancelot Drive, Daw Park.
A.I owned the house at 16 Lancelot Drive in Daw Park.
Q.You continued to live there after your husband’s death with your son.
A.I was living there for five years with my son, and for five years I was by myself with my son. So, through coincidence when my son got married the first time I met Mr Zizmond. He was very nice and he could talk all right but he had a job in Alice Springs in 1981 and he asked me to look after his house in Clapham.
(16, 17)
Accordingly, I confirm my finding that the Applicant met the deceased in 1980 and after some courting commenced living with him in the Clapham house in 1981. That finding is to some extent supported by the evidence of the Applicant’s son Mr Mart Vaher who said that he married in 1980 and then through his mother-in-law came to know the deceased (131). The Applicant also said as indicated in the above quoted evidence, that she met the deceased through her son’s mother-in-law (17).
The remaining criticisms in the Outline of Submissions of the Intervener under the heading Timing, are dealt with by my findings and need no separate treatment here.
As for the arguments under the heading Croft Correspondence Delay and Dachau, I do not accept that they undermine the credibility and reliability of the Applicant’s evidence or her case in the way contended for. Nor do I accept the criticisms of the witnesses Mart Vaher and Josephine Larto.
I reject the plea that the deceased and the Applicant were living together as business partners or associates and that their relationship was somehow one of commercial convenience. All the evidence as I have pointed out, both direct and circumstantial, indicates the de facto relationship of husband and wife.
In all, I reject the Intervener’s contentions and so confirm my overall findings.
Alternative
If I am incorrect in concluding that the current Part 3 provisions apply (ie the Domestic Partner provisions), but that the original Part III provisions should have been applied (ie the Putative Spouse provisions), then I would conclude that the evidence would also justify the granting of a declaration under those original provisions, that the Applicant was the deceased’s putative spouse.
Conclusion
I now turn to whether the statutory pre-conditions for a declaration under Part 3 of the current provisions are satisfied.
First, I conclude that the Applicant had “a close personal relationship” with the deceased. She lived together with him on a “genuine domestic basis” having regard to the following factors:
·that the relationship subsisted from late 1981 until 1991 or 1992;
·that in that time they resided together in his house at Clapham, her house at Daw Park, the house at Hallett Cove and finally the farmhouse in Ozeljan in Slovenia;
·that, whilst to some extent each of them retained control of their respective monies, they and each of them contributed to keeping one another by contributing money for food, household bills, travel expenses and costs of building improvements to the houses at both Hallett Cove and Ozeljan;
·that they lived in one another’s homes to begin with and then in respect of the Hallett Cove which was originally owned by the deceased, he in recognition of her selling her house at Daw Park to finance a re-settlement in Slovenia, transferred a tenancy in common in the Hallett Cove house to her;
·that they lived together and in particular:
·shared a bed;
·took meals together;
·had a sexual relationship;
·socialised together in public;
·entertained as a couple; and
·worked physically together on both the Hallett Cove house and the farmhouse in Slovenia.
·that the Applicant purchased food, cooked, cleaned and washed clothes for the deceased in each of the residences they shared;
·that the Applicant and the deceased presented to those observing them in public, namely Mart Vaher and Josephine Larto as a de facto husband and wife.
(See ss 11 and 11A)
Secondly, I conclude that the Applicant was in a close personal relationship with the deceased continuously for a decade or more. The various interruptions, namely the deceased’s trip alone to Slovenia, the Applicant’s trips to, or absences in, Germany and her returns to Australia did not result in an effective interruption of the running of the period.
(See s11A(a)(i)).
Thirdly, I conclude, as a matter of law, that the Applicant’s right to claim a further interest in the Hallett Cove property, by seeking provision from the Estate of the deceased here in South Australia, depends on whether she is declared to be the deceased’s domestic partner within the meaning of the Family Relationships Act 1975.
(See s11B(1) and see also ss 4, 5, 6 and 7 of the Inheritance (Family Provision) Act 1972).
Accordingly, I grant the application of the Applicant and declare that between 1981 and approximately 1991 or 1992 the Applicant Annelies Vaher and the deceased Fabjan Zizmond were domestic partners, one of the other within the meaning of Part 3 of the Family Relationships Act 1975 (SA).
I will hear the parties as to the question of costs.
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