Asquith v Registrar, NSW Births, Deaths and Marriages

Asquith v Registrar, NSW Births, Deaths and Marriages - [2015] NSWCATAD 8 - NSWCATAD 2014 case summary — Zoe

[3]

The parties

Ms Asquith's application to the tribunal named the Registrar of Births, Deaths and Marriages as the Respondent to the application. The tribunal later agreed to the joinder as Second Respondent of William Leslie Ross, father of the deceased Scott William Ross and of BNR, daughter of the deceased Scott William Ross as the Third Respondent. The tribunal determined of its own motion that as BNR is under the age of 18, an order should be made pursuant to section 64(1) (a) preventing the disclosure of her name as follows: Section 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) ………. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
The tribunal also determined to refer to another of Mr Ross's daughters as BCD and the mother of one of Mr Ross's daughters as RAS - in order to avoid identification of Mr Ross's minor children. The tribunal also makes an order under section 64(1) (a) prohibiting the disclosure of the name of the persons referred to as BCD and RAS.

[7]

Application for Review

In her application for review made to the tribunal Ms Asquith states as follows. I am seeking an Urgent Review of the decision on the following grounds, I need to apply for letters of administration in my de Facto partners estate within 12 months of his death. I have filed a Caveat but am unable to make the full application without a full death certificate. I am the De Facto Partner of Scott William Ross, deceased, of 2/5 Ocean Street Evans Head. Scott died suddenly of unnatural causes on 04 December 2013. When the death registration was filled in by the funeral Director and Scotts Father Bill Ross, they recorded Scott's marital status as Married instead of separated but not divorced and in a de Facto relationship with me. When I requested both the funeral home and Bill Ross correct this, they both refused and Bill said that was what he wanted the certificate to show. I later discovered that when the administrator (Linda) entered the data from the death registration into the BDM system, she knew that my partner was not married and so recorded him as separated contrary to the registration form, but still did not record me as the De Facto partner. I have requested that BDM amend this certificate and take appropriate action in regards to the falsification of the certificate and they have refused. I wish to have BDM directed to record my details as the De Facto partner. I have supplied documentation including the following to support my application - A copy of the interpretation act that is used when determining de facto status to show I meet the criteria of determining a De Facto relationship as no particular finding in relation to any of the matters is necessary but the fact that I meet all but one of the factors is compelling. Statements from Bill Ross to police to state that he knew I was living with Scott and had in fact visited our home we shared together. This also shows that he was not supportive of the relationship but that is irrelevant. Statement from Kym Ross to show that she was also aware of the relationship and that we had moved in together and had mutual care of (one of Mr Ross's daughters) when (that daughter) visited us. Copy of a utility not already provided to BDM in both mine and Scotts name for our address. Text messages showing the emotional and financial involvement not provided to BDM Response to my complaint to dept justice re falsification of death registration outlining criminal matters that this potentially involves. Legal fees paid by me in relation to the estate Correspondence to BDM in complaint form dated 3rd and 6th of August, 21st July and 19 June 2014 Request in stat dec form made in June to add additional information to initial request to have the certificate amended, including assorted attachments to verify De Facto Status, including the tenancy agreement signed by Scott on behalf of my business, police documentation showing me as the de Facto and the complaint sent to the Attorney General by me Response to initial request for amendment dated 16 April 2014 Initial application for amendment including a stat dec, the funeral notice showing I was acknowledged as Scotts partner as published by the funeral home, both mine and Scotts licenses showing our mutual residential address, a medical form filled in by scott in his own hand listing me as his partner and next of kin, confirmed by text message. Home contents policy in both our names and the home insured being our mutual address, and a bank statement of Scott's confirming the address along with a phone account in my name confirming my address. All of this is overwhelming evidence that we lived together, shared expenses, purchased a car together, which is also addressed in Bill Ross' statement, and shared care of the children, also confirmed in both Bill Ross' and Kym Ross' statements. I would also like a direction to BDM to investigate the false stat dec on the death registration and subsequent correspondence from Bill Ross refusing to add me as a De Facto partner even though it can be proven that he was aware of the nature of the relationship. I would like a direction made asap to amend the certificate and make it available to me so as to not further hinder the application of administration for this estate.

[9]

Relevant Legislation

The legislationrelevant to registration of a death is set out in the Births Deaths and Marriages Registration Act 1995 and the Births Deaths and Marriages Registration Regulation 2011. Births Deaths and Marriages Registration Act 1995 Section 42 Registration (1) The Registrar registers a death by making an entry about the death in the Register including the particulars required by the regulations. (2) However, if the particulars available to the Registrar are incomplete the Registrar may register a death on the basis of incomplete particulars. Section 45 Correction of Register (1) The Registrar may correct the Register: (a) to reflect a finding made on inquiry under Division 2, or (b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. (2) The Registrar must, if required by a court, correct the Register. (3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry. Births Deaths and Marriages Registration Regulation 2011 Clause 15 Registration of death For the purposes of section 42 of the Act, the following particulars are required: (a) the date and place of death of the deceased, (b) the sex, date of birth (or age at death) and place of birth of the deceased, (c) the usual occupation of the deceased before death and whether or not the deceased was a pensioner or was retired immediately before death, (d) the date of disposal of the remains of the deceased, (e) the full name and business address of the funeral director or other person who arranged for the disposal of the remains, (f) if the deceased was born outside Australia, the period of residence in Australia of the deceased before death, (g) whether or not the deceased was of Aboriginal or Torres Strait Islander origin, (h) whether, immediately before death, the deceased was married, divorced, widowed or in a de facto relationship or had never married, (i) if the deceased had married, the date of marriage (or age of the deceased at the date of marriage), the place of marriage and the full name (including, if applicable, the original surname) of his or her spouse (and such particulars in relation to each marriage of the deceased if the deceased had married more than once), (j) the full name (including, if applicable, the original surname) of any de facto partner of the deceased, (k) the full names, sex and date of birth (or age) of the children (if any) of the deceased (including deceased children), (l) the full name (including, if applicable, the original surname) and occupation of each parent of the deceased.
The Interpretation Act 1987 sets out at section 21C the meaning of de facto partners and de facto relationships. 21C References to de facto partners and de facto relationships (1)Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or (b) the person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) bthe nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
The parties agreed at hearing that section 21C of the Interpretation Act set out the applicable definitions of de facto partner and de facto relationship for the purposes of the tribunal's decision.

[14]

Mutual commitment to a shared life

Ms Asquith had advised Centrelink that she was living with Mr Ross in September 2013 at the Lismore property. Centrelink had reduced the family tax benefit payable to her. Ms Asquith said that their commitment to a de facto relationship had commenced or about 11th October 2013 when they had moved into the Evans Head property.Ms Asquith said thatMr Ross had proposed marriage to her in late September 2013 and they planned to marry on a cruise ship in October 2014.
She and Scott had made plans to marryin BNR's presence. Ms Asquith pointed to Scott's nomination of her as his next of kin and carer on his medical record. She referred to the wills that they had drafted jointly. She said that Scott had had his will witnessed when he went to the Coastguard and that he had put it in the wardrobe. However it had disappeared sometime after his death between 4 December 2013 and 13 December 2013. She said that the document before the tribunal which was unsigned was a copy of the will - although the signed version had been a little bit different.
Ms Asquith referred to text message exchanges between herself and Scott which were put before the tribunal, demonstrating the depth of their personal commitment
When they moved to Evans Head they commenced sharing the house work.
Under cross-examination Ms Asquith was asked whyshe had not told anyone previously that she and Mr Ross had started seeing each other in 2009. Mss Asquith said that Scott had been private about their relationship. She was also asked why she had not provided the information sought by Births Deaths and Marriages since January 2014 such as evidence of joint bank accounts. She indicated that these were requests not requirements from Births Deaths and Marriages. When she was asked why she had not attempted to adduce any evidence supporting her position from other persons Ms Asquith said that she had attempted to get evidence from Mr Ross's workmates however Jamie, his friend, would not support her and had made defamatory and derogatory comments about her.
She said that she and Mr Ross had set up a joint bank account in around August 2013 with a view towards saving for the bond for a joint property. She was asked why she had refused to provide the joint funeral policy to the tribunal and responded that she did not wish to rely on it. She had not shown Mr Bill Ross, father of Scott Ross, the funeral policy because he hadn't asked to see it. She said that Bill Ross wanted to pay for his son's funeral because he would get a discount.
She had not previously raised the fact that Scott Ross was working in her business providing local knowledge because she had not previously been asked about this. She did not see the need to tell anyone that they were developing a business together. She agreed that Scott would speak to his father a couple of times a week on the telephone. He had not told his father about their relationship until they had signed the tenancy agreement on the Evans Head property.
She had not checked the forms submitted by Bill Ross to the funeral director at the time of Scott Ross's death to check the information provided in relation to whether or not Scott Ross was married separated or in a de facto relationship.

[19]

Evidence of William Ross

Mr Bill Ross is the father of the late Scott William Ross.Mr Ross lives in Iluka, northern NSW.
Mr Ross obtained leave to be joined as the Second Respondent to these proceedings.
Mr Ross provided a Statutory Declaration to the tribunal. He was also cross examined under oath by telephone. Mr Ross's statutory declaration is extracted as follows: I considered it improper that Emmelline Asquith be recorded on Scott Ross's death certificate as his de facto. As far as I was aware Ms Asquith knew Scott for only about four months before his death. Scott and I were very close. He wasn't just my son but was my best mate also. We would speak at least 3 or 4 times a week on the telephone and we would catch up whenever I was in Lismore which was about once a week. I first met Emily Snow in about the middle of September 2013 when Scott turned up at my place with Emily, simply introducing her as "Emily". Scott hadn't previously mentioned Emily to me and didn't refer to her as his girlfriend. Around the end of September Scott told (me) he was going to move out of his place in High St, Lismore and was moving to Evans Head. Scott mentioned that Emily wanted to move to Evans Head and that he and Emily would share the rent and expenses of the place, saying to me it would be cheaper for him to share as he would be able to save some money. I remember telling Scott that he was mad to move and told him he should stay in Lismore. Sometime after first telling me he was moving to Evans Head, and prior to moving, Scott rang me and told me he had found a townhouse in Evans Head and was moving as soon as he could. I asked Scott if he and Emily would be living together to which he replied no they would just share the premises. Emily would be upstairs and he would have the downstairs with his daughters, BNR and BCD on the weekends he had them. He also told me that Emily would only really be there on weekends as she would be away on business during the week. I visited Scott in Evans Head three times when my two granddaughters, BNR and BCD were staying with him. Each time I stayed overnight. Emily was there on two of those occasions with her daughter. Just before Scott died I saw him at work in Lismore on Tuesday the 3rd of December and arranged to stay at his place the following weekend with my grandchildren BNR and BCD. Scott died the following night. On the morning of the 4th December Scott's friend Jamie informed me that Scott had passed away the previous night. I couldn't go to Scott's unit as the police were conducting an investigation and weren't allowing anyone in. I went over to my partners house and stayed the night. On Friday I met with Jamie at his place to organise Scott's funeral. Emily turned up at Jamie's house and started screaming and yelling at Jamie and saying that she should have been put down as next of kin. At this stage I was not aware that Jamie had given my name to the police and the funeral home as next of kin however it was not surprising to me as I was Scott's father and Scott's mother had passed away two years earlier. I specifically recall Emily saying words to the effect "I have to be recorded as next of kin". I was quite shocked at the way Emily behaved and her demands. I stated to Emily words to the effect "I am Scott's father and I am his next of kin". After a while Emily calmed down and we all went to the funeral home in separate cars. After meeting at the funeral home we sat down with the funeral director, Malcolm Guthrie. Malcolm asked me details for the funeral notice and death certificate. Emily was there when Malcolm asked "is Scott married" to which I replied "yes". Emily did not make any objection or mention that she was Scott's de facto. After taking all the details from me Malcolm handed the papers to me and said to me words to the effect "is this all true and correct" to which I replied "yes" and signed the papers. Emily was present the whole time and did not complain about any of the information I gave to the funeral director. A couple of days later I went back to the funeral home with Emily, BNR and BNR's mother, RAS to pick out the coffin. Whilst there Emily told me that she had an insurance policy that would pay for the funeral and coffin. When I asked to see the policy Emily told me she couldn't show me as it was in Sydney. After Scott's funeral Emily told me that the wake wasn't good enough and that Scott would have wanted an all-night party with free beer and a band playing Guns and Roses music. When I asked her where the money would come from for a party she told me that there was an insurance policy that would cover it all. When I asked for proof of the policy Emily told me again she couldn't show me. About a week after the funeral Emily contacted me and asked to meet. I met Emily at the East Lismore Bowling club car park. Emily said to me "We have to get things sorted out, we have to get the money and put it in my account". I said to Emily "what money, Scott only has super, long service leave and a bit of holiday pay". Emily said to me "no there is a lot more". Emily contacted me a number of times over the next week or two demanding to have the money sorted out. After a while I refused to talk to her anymore. Emily came to my caravan a few days later and threw down a piece of paper saying "this is Scott's will". I looked at the paper and said to Emily "this is not signed and not dated" Emily replied to the effect "it doesn't matter it is still a legal document. Sometime later I was contacted by a representative from MLC who told me about Scott's superannuation and death benefit in the amount of $395,000.00. The representative also advised me to go and see a lawyer. Emily started contacting me two or three times a day demanding she go on the death certificate so she could claim Scott's insurance. I got to the stage where as soon as I would see Emily's phone number I would cancel the call. I have been informed by my son's wife, Kym that Emily has sent her over 150 messages of abuse. Stating such things as "Scott divorced you three years ago, you aren't married to him". Kym has informed me she has changed her phone number to stop the abuse. I am aware that Emily has advertised to administer my son's Estate. I have sought legal advice about this and have lodged a Caveat with the Supreme Court. In my opinion Emily was not Scott's de facto and is only seeking to be listed on Scott's death certificate for financial gain.

[20]

Evidence of BNR

BNR is the daughter of the late Scott William Ross.BNR who is under 18 years of age gave evidence and was cross examined under oath in the presence of her tutor.
BNR provided the tribunal with a statutory declaration.
The following is an extract from BNR's statutory declaration. 2. The first time I heard about Emily Asquith (Emily Snow) was when I spoke to my dad on the telephone whilst on a school trip to Great Keppel Island on 10 September 2013 when he told me that he had gone to Dreamworld with a lady called Emily. 3. Around 16 September 2013 I was introduced to Emily Snow as "my friend" by my father while at dinner with my dad and sister at a Tavern in Queensland. 4. A little while after that dad told me he was looking to move to Evans Head for a change of scenery and that Emily's company would be paying half the rent and he would cover the other half. He also told me that Emily would have to travel between Noosa and Sydney for her business and that she would stay with him in Evans Head when she got the chance to. Dad told me he and Emily were dating and he wanted to see where things would go. He also told me that if things did not work out between him and Emily he would take over the lease at Evans as it wouldn't be hard to find a roommate. 5. After dad had moved into the house at Evans Head he told (my sister) and I that we would have our own rooms. As it turned out a friend of Emily's, Laila Asante was in my room and I had to share with my sister. Dad told us that this would only be temporary as Laila would be heading home to Czechoslovakia soon. 6. Just before dad died I had arranged to start a trial of living with dad for one week on and then one week off when I would live with mum. 7. I had only started the trial one week before dad passed away and since my dad's death I have only gone to the property at Evans Head once to pick up my belongings. Aside from this one time I have not seen nor spoken to Emily and have been living with my mother (name deleted by tribunal) in Casino. 8. It is my opinion that dad and Emily Snow were in the very beginnings of a relationship and whilst they may have been boyfriend and girlfriend were not in a de facto relationship as I understand a de facto relationship to be.
BNR confirmed that when she had stayed at the Evans Head property Ms Asquith and Dad had slept upstairs - while she had slept downstairs in one of the 2 downstairs bedrooms. She had seen only her father's clothes in the wardrobe upstairs.
She said she had asked her father, then Ms Asquith, if she could move in to live with them at Evans Head.
BNR confirmed that on an occasion when she was staying at Evans Head she had heard her father and Ms Asquith having a conversation in the kitchen about babies. She had heard her father say to Ms Asquith "Marry me then."

[40]

Findings on facts and law

Having made the above determinations of fact, the tribunal has turned its mind to their application to the law. Section 21 C sets out the following 4 steps in determining whether a person is a de facto partner of another person.

a person is the de facto partner of another person if the person is in a registered relationship (not relevant in this matter) or is in a de facto relationship with the other person.
a person is in a de facto relationship with another person if they have a relationship as a couple living together and they are not married to or related to each other. The tribunal accepts that Ms Asquith and Mr Ross were not married or related to each other.
in determining whether 2 persons have a relationship as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case. Matters a) to i) have been set out above.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. (underlining is the tribunal's)

Accordingly the tribunal has considered all the circumstances put before it of Ms Asquith and Mr Ross's relationship, including its findings on matters a) to i) in considering whether or not Mr Ross and Ms Asquith were in a relationship as a couple and hence de facto partners in a de facto relationship.
The tribunal is satisfied that the relationship of commitment had been of short duration.Mr Ross and Ms Asquith had lived together in a common residence for a very brief period.
Perhaps as a result of this brief cohabitation in the same area of NSW, the relationship was of limited reputation with friends and family of Mr Ross and Ms Asquith.
It appears to the tribunal however that Mr Ross and Ms Asquith had a very close emotional attachment which they underlinedin their brief period living together with financial interdependency including the lease of their home at Evans Head and a car purchase.
The tribunal notes that some of the material before it upon which the tribunal's decision is based, such as the text of SMSs between Ms Asquith and Mr Ross and a joint utility account - were not before the Registrar of Births Deaths and Marriages when the Registrar made its previous decision.
In the circumstances, the tribunal is satisfied that in all the circumstances, Ms Asquith and Mr Ross had a relationship as a couple living together and that they were de facto partners in terms of section 21 C of the Interpretation Act.
Accordingly, the correct and preferable decision is that the decision of the Registrar, NSW Births, Deaths and Marriages to decline to record Ms Asquith as Scott William Ross's de facto partner is set aside. Ms Asquith should be recorded by the Registrar, NSW Births, Deaths and Marriages as Mr Ross's de facto partner at the time of his death.

At a glance

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Judgment (41 paragraphs)

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Cited By (3)