VALDES & STYLES

[2017] FamCA 752

FAMILY COURT OF AUSTRALIA

VALDES & STYLES [2017] FamCA 752

FAMILY LAW – DE FACTO RELATIONSHIP – JURISDICTION – Application for the determination of the existence of a de facto relationship – Section 4AA of the Family Law Act 1975 (Cth) – Where the applicant and respondent were in a romantic relationship for a number of years – Where the parties at no time shared a common residence – Where the respondent gave the applicant gifts and money – Where there was no mutual commitment to a shared life – Where it was not established that the applicant and respondent had a relationship as a couple living together on a genuine domestic basis – Application dismissed.

FAMILY LAW – EVIDENCE – HEARSAY – Where an application is made that s 63 of the Evidence Act 1995 (Cth) apply to the respondent’s evidence as he is not available for cross‑examination – Where it was asserted that the respondent was not available due to being mentally or physically unable to give evidence – Where the respondent is over 90 years old, has profound hearing loss and is vision impaired – Where it is not reasonably practicable to overcome the respondent’s inability to attend for cross‑examination.

Evidence Act 1995 (Cth) s 63, Dictionary pt 2 cl 4
Family Law Act 1975 (Cth) s 4AA
Relationships Register Act 2010 (NSW) s 5

APPLICANT: Ms Valdes

RESPONDENT: Mr Styles

FILE NUMBER: SYC 8388 of 2016

DATE DELIVERED: 22 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 and 19 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Teoh
SOLICITOR FOR THE APPLICANT:	Malleys Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: McCabes Lawyers

Orders

IT IS DECLARED

1. That no de facto relationship existed between the applicant and the respondent.

IT IS ORDERED

1. That the applicant’s Amended Initiating Application filed 21 March 2017 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdes & Styles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8388 of 2016

Ms Valdes

Applicant

And

Mr Styles

Respondent

REASONS FOR JUDGMENT

1. Ms Valdes (“the applicant”) has filed an application seeking a declaration that she lived with Mr Styles (“the respondent”) in a de facto relationship between 2006 and 2015.

2. The respondent opposes that application. It is his case that the applicant was his girlfriend at all relevant times until 6 September 2015 when all contact between them ceased in circumstances which will be detailed later in these reasons.

3. It is not in dispute that the applicant and the respondent met in October 2003 and commenced a relationship. When they met, the applicant was employed and the respondent owned and ran, in conjunction with his family, a business. The respondent’s daughter, Ms Styles, worked in the business and was a director of the company.

4. In July 2010, the respondent suffered a bad fall and was hospitalised. He remained in the B Hospital until he fell again in September 2010 and broke his hip. He was then taken to C Hospital and after surgery, returned to the B Hospital. Since that time, he has continued to live in aged care. Throughout that whole period, the applicant maintained her own rented accommodation.

5. In October 2010, the respondent moved to the D Nursing Home and in about February 2011, he moved to E Nursing Home where he still lives.

THE HEARING

1. The applicant relied on an affidavit by herself and nine other witnesses. Only Ms F was required for cross-examination. 

2. The respondent relied on two affidavits by himself, affidavits of his daughters (Ms G and Ms Styles), an affidavit of Ms H and an affidavit of his general practitioner, Dr J. Ms H and Dr J were not required for cross-examination.

3. The respondent also relied on an affidavit of his solicitor which had been filed in support of an Application in a Case relating to his unavailability to attend for cross-examination. Annexed to the affidavit of the solicitor were reports by the respondent’s treating doctors. They were Dr K (specialist ophthalmologist), Ms L (audiologist), Dr J (general practitioner) and Associate Professor M (vitreoretinal surgeon). None of those doctors were required for cross-examination.

4. The Application in a Case had been mentioned in the previous week and I indicated that I would hear it at the commencement of the trial.

5. At the commencement of the trial, an application was made for a ruling that the respondent was not available to give evidence within the provisions of s 63 of the Evidence Act 1995 (Cth) (“Evidence Act”) which provides:

EVIDENCE ACT 1995 - SECT 63

Exception: civil proceedings if maker not available

(1)  This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)  The hearsay rule does not apply to:

(a)  evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b)  a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

1. The definition of “not available” is found at clause 4 of Part 2 of the Dictionary of the Evidence Act in the following terms:

   Unavailability of persons

   (1)  For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

   (a)  the person is dead, or

   (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or

   (c)  the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or

   (d)  it would be unlawful for the person to give the evidence, or

   (e)  a provision of this Act prohibits the evidence being given, or

   (f)  all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

   (g)  all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

   (2)  In all other cases the person is taken to be available to give evidence about the fact.

2. Counsel for the respondent relied on sub-clause (1)(c) of section 63 of the Evidence Act.

3. The unchallenged evidence of the respondent’s treating doctors, in their reports attached to the affidavit of the respondent’s solicitor, is summarised as follows:

   ·    The respondent has profound hearing loss. Although he has been fitted with hearing aids, he will struggle to hear where there are multiple speakers. He will struggle to understand if there is any echo or reverberation.  To understand from a distance, he requires lip reading. Even with a hearing loop he will struggle.

   ·    The respondent is legally blind in his right eye and suffers from macular degeneration in his left eye. He is unable to read standard sized font and has been so unable for over a year. In those circumstances I infer that he will not be able to lip read.

   ·    He is 93 years old. His current state of health is poor and he has recently suffered a cerebral event. The experience of cross-examination would be detrimental for him both physically and emotionally.

   ·    His general practitioner strongly advised against “putting him through such an ordeal”.

4. I accept that the respondent is “mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability” and thus his sworn evidence constitutes an exception to the hearsay rule.

5. I accept that the fact that the respondent is not available for cross-examination will affect the weight that can be given to his evidence where the evidence is controversial.

THE LAW

1. Whether or not a de facto relationship has existed is determined according to the matters specified in s 4AA of the Family Law Act 1975 (Cth) (“the Act”), the provisions of which are set out below:

   Meaning of de facto relationship

   (1)  A person is in a de facto relationship with another person if:

   (a)  the persons are not legally married to each other; and

   (b)  the persons are not related by family (see subsection (6)); and

   (c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

   Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2)  Those circumstances may include any or all of the following:

(a)  the duration of the relationship;

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

(c)  whether a sexual relationship exists;

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

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

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

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)  the care and support of children;

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

(3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4)  A court determining whether a de facto 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.

1. The applicant bears the onus of proof.

2. It is convenient to consider the evidence as it relates to each consideration.

The duration of the relationship

1. The applicant sought a declaration to the effect that a de facto relationship existed between 2006 and 2015.

2. It is not disputed that the applicant and the respondent met in 2003 and last had contact on 6 September 2015.

3. It is the nature of that relationship which is in issue.

The nature and extent of their common residence

1. In her affidavit sworn 13 December 2016, the applicant deposed that they met in October 2003 and commenced a personal relationship. She deposed that they went out for dinner and went dancing together. She deposed that from 2006 she began to stay over at the respondent’s home on weekends. In cross-examination she resiled from that evidence and said that she and the respondent had initiated a sexual relationship immediately upon meeting and that she had stayed at his house on weekends from the very beginning. She was unable to explain the discrepancy between her affidavit and her oral evidence except to say that the dates were inconsistent. 

2. Ms N, the applicant’s daughter, lived with the applicant for about three months in 2007. She deposed that she observed her mother cooking meals and putting them in plastic containers. During that time, the respondent lived “in his townhouse in [Suburb O]”. She deposed that the respondent visited her mother’s apartment.

3. The applicant did not depose to having her personal effects at the respondent’s home, but in cross-examination she insisted that she kept clothes, make-up, toiletries and work clothes at his home.

4. The respondent, in his affidavit sworn 23 March 2017, deposed that the applicant stayed over at his home from time to time and up to once a week.

5. Ms G, the respondent’s daughter, deposed that she had a conversation with her father in 2006 or 2007 where he told her that the applicant had asked to move in with him and that he had refused. The respondent told Ms G that the applicant did not have a key to his home and he did not want her to have a key.                     

6. Ms G had conversations with the respondent between 2006 and 2008 where he told her that he had no interest in living with another woman or remarrying.

7. Ms Styles, also the respondent’s daughter, deposed to similar conversations with her father up to 2010.

8. Ms G deposed that she had never seen any evidence that the applicant had left clothes or toiletries in the respondent’s home. In cross-examination, Ms G said that she was a frequent visitor to her father’s house, that she used the bathrooms, that she went into her father’s bedroom and that she checked the closets in the guest rooms to make sure they were ready for guests.  

9. Ms Styles who regularly visited her father’s home also said that she had not observed any sign that any other person was living in the house. She never saw the applicant at the respondent’s home. This evidence was not challenged.

10. Taken at its highest, the evidence of the applicant is that she stayed at the respondent’s home “on weekends” which I infer to mean on Saturday night, as she also deposed that she cooked at her home on Sundays and that she sometimes worked on Sundays.

11. The applicant at all relevant times maintained her own rented apartment. She does not suggest that the respondent stayed over at her apartment.

12. After July 2010, when the respondent had his first bad fall, he lived in supported accommodation either in hospital or in an aged care facility.

13. The applicant has not demonstrated that there was any common residence.

Whether a sexual relationship exists

1. The applicant deposed that a sexual relationship existed between 2003 and 2010.

2. The respondent deposed that a sexual relationship existed for about one year.

3. It is not necessary or possible to determine which version should be accepted.

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

1. The respondent had his own income and property and was not dependent on the applicant. He was not a named beneficiary of her superannuation entitlements.

2. His financial situation was superior to that of the applicant.

3. The applicant worked, usually in two jobs, one as a public servant and the second in retail. She rented her home.

4. The respondent provided financial support for the applicant.

5. The respondent gave the applicant birthday presents.

6. The applicant deposed that, for her birthday in 2003, the respondent gave her a gold bracelet and a cheque for $1,000. She deposed that he gave her other presents of jewellery. On her birthday in 2014, she received a cheque for $1,000.

7. Ms Styles deposed that from about 2004 the respondent asked her to organise the birthday presents and Ms Styles would choose a present. In 2013 and again in 2014, Ms Styles gave the applicant a cheque for $1,000 and told the respondent that she had done so. That evidence was not challenged.

8. Initially, the respondent gave the applicant $65 per week towards her rent. The evidence does not establish when that started.  

9. The applicant cooked meals for the respondent and delivered cooked food to his home. She continued to do that after he was hospitalised in July 2010, although the evidence does not establish how often that occurred.

10. In 2006 the respondent advanced $6,000 to the applicant to pay the costs of the applicant’s daughter obtaining a professional certification in Australia. The respondent deposed that the transaction was a loan and that the money has not been repaid.

11. In 2009 the respondent gave the applicant money to pay for surgery on her eyes. The applicant said in cross-examination that the sum was about $3,000 for the first operation.

12. Ms Styles deposed that she and Ms G took over the respondent’s financial affairs after he was hospitalised in July 2010.

13. In about August 2010, the applicant had a conversation with Ms Styles about the payments she had been receiving from the respondent. She told Ms Styles that he had been paying her $165 per week. Ms Styles asked the respondent how much money he had been giving the applicant. He could not remember. Ms Styles decided to pay the applicant $165 per week. She drew the money weekly from an ATM and gave the applicant $170 because the machine did not dispense $5 notes. She also gave the applicant $660 in “back pay” that the applicant said she was owed because of the four weeks that the respondent had not been able to have access to his accounts.

14. After the respondent was hospitalised in 2010, the applicant had a conversation with Ms Styles on the topic of being reimbursed for money the applicant spent on the respondent. There is a dispute about whether Ms Styles offered the reimbursement or whether the applicant asked for it. Ms Styles deposed that the applicant asked to be reimbursed for a birthday cake she bought for the respondent.

15. Annexed to the affidavit of Ms Styles are numerous text messages from the applicant to Ms Styles asking for reimbursement of small sums such as $6 for denture tablets, $12 for shaving cream and $10 for wet wipes. The applicant also bought clothes for the respondent and was reimbursed by Ms Styles. There are texts asking for reimbursement for food that the applicant purchased for the respondent, both take away food and ingredients for meals she cooked. She also asked to be reimbursed for taxi fares when she used a taxi to visit the respondent.

16. There is no evidence that the applicant provided things for the respondent at her own expense and without being reimbursed.

17. In mid-2011, the applicant needed more money for a second eye operation. She gave evidence that the respondent offered to pay. Ms Styles deposed that she had a conversation with the respondent where he asked her to arrange to pay $4,000 to the applicant for the operation and she did so.

18. Ms Styles deposed:

    I believed that [the applicant] would continue to provide friendship to [the respondent] as long as she was being paid. It was also clear that she was not prepared to spend any of her own money on [the respondent]. I expected that, had we stopped paying [her], she would have stopped providing this companionship for [the respondent].

19. Ms Styles also paid the applicant $1,000 from time to time to house sit for her and care for her dogs.

20. Towards the end of 2012, the applicant asked Ms Styles for $10,000 to bring her daughter from the Country P and enroll her at a professional school. After discussing the matter with Ms G, Ms Styles agreed to lend the applicant $5,000 but to deduct $100 per week from the $170 she was then giving the applicant until the loan was repaid. Ms Styles deposed that she later forgave the loan and was not aware of how much remained owing to the respondent.

21. In July 2014, the applicant asked Ms Styles to pay for an airfare to Country P. Ms Styles wrote the applicant a cheque for $2,000 from the respondent’s account but did not tell the respondent.

22. In October 2014, the applicant told Ms Styles that her rent was being increased by $100. After discussing the matter with Ms G, Ms Styles arranged to give the applicant a further $30 per week, a total of $200.

23. That payment continued until the events of 6 September 2015 when the relationship between the applicant and the Styles family terminated.

24. There is some dispute about whether or when the respondent told his daughters that he wanted to make a significant provision for the applicant in his will. The respondent’s daughters were aware that there was a provision for the applicant in the respondent’s will. The applicant deposed that there was a conversation where they were all present. The respondent’s daughters denied any such conversation.

25. The applicant deposed that, in January 2015, she told the respondent that she was planning to retire but that she could not afford to live on her income and considered going back to the Country P. The applicant deposed that the respondent said to her “Make a letter that I will provide you with a property when I die and I will sign it”.

1. The applicant prepared a document which stated, “This letter is to confirm our conversation on 3^rd of January 2015 where I have acknowledged in consideration of our relationship and your care and Supporting (sic) me that on my death, you will be given a property suitable for you to live in.”

2. The respondent signed the document on 4 January 2015.

3. The applicant sought legal advice and was told that, for the document to have effect, certain words should be used and the document must be witnessed.

4. She prepared a second document which read:

   DEAR [THE APPLICANT],

   I HAVE ACKNOWLEDGED IN CONSIDERATION OF OUR RELATIONSHIP WITH YOUR CARE AND ALWAYS SUPPORTIVE ON ME (sic), THAT ON MY DEATH, YOU WILL BE GIVEN A PROPERTY SUITABLE FOR YOU TO LIVE

   YOURS SINCERELY,

   (Signed)

   MR STYLES

   WITNESSES

   THIS CODOCIL (sic) WAS SIGNED BY THE TESTATOR IN THE PRESENCE OF BOTH OF US WITNESSES AS AND SIGNED BY BOTH OF US IN THE PRESENT (sic) OF THE OTHER, AND IN THE PRESENCE OF THE TESTATOR/TESTATRIX.

5. That document is dated 4 February 2015 and bears the respondent’s signature. Two people have signed as witnesses. The applicant said that one was a friend and one was a member of the staff at the aged care facility. Their names and addresses are noted on the document.

6. The applicant deposed “Several weeks later I spoke to a friend and he suggested that [the respondent] should sign a form of codicil to confirm his promise. My friend sent me the form.”

7. The document, titled “Codicil to the last will and testament of [the respondent]” was signed by the respondent on 5 May 2015. Relevantly it provided, “that it shall be added to my Will, and shall read that [the applicant], my girlfriend for 11 years, I acknowledge in consideration of my relationship to her and care for me, that on my death she will be given a property suitable to her to live in (sic).”

8. That document was signed by the respondent and the same two witnesses.

9. In cross-examination, the applicant was asked why she did not discuss the codicil with the respondent’s daughters and she said that she knew they would not agree.

10. Neither of the persons who signed as witnesses gave evidence in the proceedings.

11. The applicant was present when the respondent signed the document. It was not read to him. He was not given a copy of the document.

12. The respondent deposed that he was not aware that he had signed a document which provided for him to leave a property for the use of the applicant.

13. Ms G gave unchallenged evidence that in August 2015 she had a conversation with the respondent where he said to her “[The applicant] keeps telling me I own a lot of property and I don’t know what property she’s talking about. She seems to know more about what I own than I do.”

14. Later, after speaking to Ms Styles, Ms G had another conversation with the respondent where she asked him if the applicant had ever asked him to sign anything. He told her that he had signed something a few months ago but he did not know what it was because he could not read it. He told her the document was of one page and was typed. Ms G asked if anyone else was in the room when he signed the document and the respondent said “No, after I signed she took it outside”. Ms G asked whether the applicant had told the respondent what he was signing and the respondent said “She said it said that I would look after her”.

15. On 2 September 2015 Ms G and Ms Styles spoke to the applicant, in the respondent’s presence, and asked her what the document was. The applicant told her “It was to leave me a suitable property in which to live”. Ms Styles asked the respondent if that was what he intended and he replied “No way”. They asked for a copy of the document and the applicant said she did not have a copy and the original was in Perth. Ms G told the applicant she was prepared to discuss the terms of the respondent’s will once a copy of the document was available. The applicant said “I need to know how much he is leaving me so I can work things out”. Ms Styles told the applicant “It’s a good amount but not enough to buy a property”.

16. Ms Styles deposed that she then spoke to the respondent about his will and how much he wanted to leave the applicant. The respondent suggested $100,000. Ms Styles suggested $200,000 which would equate to about $200 per week for twenty years. The respondent said “No. That’s too much”. That evidence was not challenged.

17. The applicant provided a copy of the document (I assume the codicil) to Ms Styles a few days later on 5 September 2015.

18. On Sunday 6 September 2015, Ms G and Ms Styles met with the respondent for breakfast and read the document to him. Ms G deposed that the respondent said “She tricked me. I trusted her” and that he was angry.  The applicant arrived. The respondent refused to speak to her.

19. Ms G and Ms Styles took the respondent back to his room. Ms G deposed that the respondent said to her, “[She] tricked me, she breached my trust, I don’t want to ever see her again. I want you to stop giving her money and I don’t want to leave her anything in my will. I want you to tell her today.”

20. That evening, Ms G, in the presence of the respondent, had a conversation with the applicant and said, “I have now read to my father the document you asked him to sign and he believes you have breached his trust and he doesn’t want to see you anymore. He would like you to leave now.” Ms G deposed that the applicant said “I’m not going anywhere”, and the respondent told her “I don’t want to see you anymore and I want you to leave now.”

21. Ms G’s evidence about those conversations was not challenged in cross‑examination.

22. There is a dispute as to whether the alleged codicil was actually witnessed by two witnesses in the present of the respondent. The respondent, in his affidavit, asserts that the witnesses were not present. Once the respondent joined issue on that point, the onus of proof switched to the applicant to prove that the witnesses were present.

23. She did not call the witnesses to give evidence and gave no explanation for not doing so even though she described one of them as a “friend” and the address of the other was known to her.

24. The applicant has not discharged the onus of proof. I accept the evidence of the respondent and the unchallenged evidence of Ms G as to the circumstances surrounding the signing of the document.

25. I am not satisfied that the respondent intended to make a substantial provision for the respondent in his will, although I accept the evidence of Ms G that the applicant was told that a provision had been made.

26. I accept that, until July 2010, the respondent paid a small sum to the applicant each week. By 2010, that sum was either $65 per week or $165 per week. Thereafter, it was Ms Styles who paid $170 per week to the applicant and reimbursed her for any money she spent on the respondent. I accept the evidence of Ms Styles that she continued the payments to ensure that the applicant continued to provide companionship to the respondent.

The ownership, use and acquisition of their property

1. The parties had no joint property.  

2. They had no joint bank accounts.

3. The applicant had no association with the respondent’s business.

4. There is no evidence that the applicant was aware of the details of the respondent’s financial position.

The degree of mutual commitment to a shared life

1. The applicant did not depose to any conversation with the respondent, evidencing a mutual intention to “live together on a genuine domestic basis”.

2. Nothing in the applicant’s evidence suggested that she had any expectation that their relationship would change from the form it had reached in July 2010.

3. To the contrary, the statements made by the respondent to his daughters, to the effect that he regarded the applicant as his girlfriend and had no wish to take the relationship further, to live with her or marry her, suggest that there was no mutual commitment to a shared life.

4. I accept that the applicant had a conversation with Ms G in 2010 where the applicant said that she wanted to move into the respondent’s home and care for him. That offer was declined by Ms G who told the applicant that the respondent required trained medical care.

5. I accept that from 2006 until July 2010, the applicant and the respondent had a romantic relationship where they enjoyed each other’s company and went out dining and dancing together.

6. I accept that, after July 2010, the applicant cared for the respondent, visited him in his hospital and his care facility and assisted him with small day to day matters. She cleaned his dentures for him, and provided companionship.

Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship

1. There was no provision for the registration of a de facto relationship in New South Wales until the Relationships Register Act 2010 (NSW) came into effect on 1 July 2010.

2. Section 5 of that Act sets out the criteria for registration in the following terms:

   5 Eligibility for registration

   (1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar for registration of their relationship.

   (2) A relationship cannot be registered unless at least one of the adults resides in New South Wales.

   (3) A relationship cannot be registered if:

   (a) either adult is married, or

   (b) either adult is registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, or

   (c) either adult is in a relationship as a couple with another person, or

   (d) the adults are related by family.

3. There was no evidence that the applicant was aware of those provisions.

4. I draw no inference from the fact that the relationship was not registered.

The care and support of children

1. Each of the applicant and the respondent has children from their previous relationships.  

2. There is no evidence that either made any contribution towards the care or support of the other’s adult children.

The reputation and public aspects of the relationship

1. The applicant did not name the respondent as her spouse on either her tax returns from 2006 to 2015 or on the documents relating to her superannuation.

2. The applicant’s witnesses, Mr Q, Mr R, Mr S, Ms S, Ms T and Mr U, all deposed to seeing the applicant and the respondent at social functions at clubs to which they all belonged. The gravamen of their evidence was that the applicant and the respondent danced together and seemed very happy and in love. None of those witnesses have seen the respondent since July 2010. None deposed that the respondent had ever referred to the applicant as other than his “girlfriend”.

3. Ms F, who was a nurse, deposed that the applicant referred to the respondent as “my partner” and the respondent referred to her as “my girlfriend”. That evidence was contradicted by the applicant who said that she did not speak to the nursing staff about the nature of her relationship with the respondent.

4. The applicant’s daughter, Ms N, does not suggest that she was introduced to the respondent as her mother’s partner or that her mother ever told her that she was the respondent’s partner or de facto partner.

5. Various hospital records were tendered showing references to the applicant as “girlfriend” and as “partner”. On one occasion, Dr J issued a medical certificate at the request of the applicant referring to the respondent as her “husband”. Dr J swore an affidavit in which he deposed that he was not aware of the nature of the relationship between the applicant and the respondent. Dr J was not required for cross‑examination. The applicant, in cross-examination, said that she did not tell Dr J that she was the respondent’s wife.

6. The applicant herself, in cross-examination, said that she did not talk to other people about the nature of the relationship.

7. On 22 April 2012, the applicant attended a case conference at Suburb E. She completed the form naming the participants in the conference and described herself as “girlfriend”.

8. Most relevantly, in the purported codicil, which was drafted by the applicant’s friend, after she had received legal advice, she refers to herself as the respondent’s “girlfriend of 11 years”.

9. It was the respondent’s daughters who made the arrangements for his medical care and made the decisions as to where he would live. Ms G was his Enduring Guardian and Ms Styles held his Power of Attorney and was a signatory to his bank accounts.

10. Ms G and Ms Styles took the respondent to medical appointments.

CONCLUSION

1. The applicant has not demonstrated that, having regard to all of the considerations in s 4AA of the Act, she and the respondent lived in a de facto relationship commencing in 2006.

2. Having regard to the finding that there was no de facto relationship between 2006 and 2010, I am not required to determine whether a de facto relationship would have continued when, in circumstances beyond their control, the respondent was hospitalised in 2010.

3. The application will be dismissed.  

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 September 2017.

Associate: 

Date:  22/09/2017