Bailey v Palombo

ieser [2010] NSWSC 50 Dwyer v Kaljo (1992) 27 NSWLR 728 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324 Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 FO v HAF [2007] 2 Qd R 138; [2006] QCA 555 Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61 Hayes v Marquis [2008] NSWCA 10 In re Blériot Manufacturing Aircraft Company (Limited) (1916) 32 TLR 253 In the Goods of William Loveday [1900] P 154 In the Marriage of Rolfe (1977) 25 ALR 217; (1979) ¶FLC 90-629 In the matter of the Estate of Peter Douglas Sigg, deceased [2009] VSC 47 Indjic v Stojanovic [2020] NSWSC 470 Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep) Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56 KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489 Light v Anderson (Court of Appeal (NSW), Handley JA, 4 August 1992, unrep) Lynam v Director General of Social Security (1983) 52 ALR 128 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Moby v Schulter (2010) FLC ¶93-447; [2010] FamCA 748 Na v Tiu (No 2) [2017] FamCAFC 269 Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 Paino v Paino (2008) 40 Fam LR 96; [2008] NSWCA 276 Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520 Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9 Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8 Piras v Egan [2008] NSWCA 59 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Ragland v Ballock [2020] FCCA 1685 Re Estate Jerrard, deceased (2018) 97 NSWLR 1106; [2018] NSWSC 781 Re Estate Miruzzi, deceased [2018] NSWSC 1899 Re Estate Wilson, Deceased (2017) 93 NSWLR 119; [2017] NSWSC 1 Reavill Farm Pty Limited v AR Mortgages Pty Ltd (No 3) [2020] NSWSC 740 Robson v Quijarro [2009] NSWCA 365 Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Limited [1921] 2 AC 438 Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 Sadiq v NSW Trustee and Guardian [2016] NSWCA 59 Schmidt v Malcolm [2016] WASC 209 Scragg v Scott [2006] NZFLR 1076 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Sullman v Sullman [2002] NSWSC 169 Taisha v Peng (2012) 296 FLR 350; [2012] FamCA 385 Talga Ltd v MBC International Limited (1976) 133 CLR 622; [1976] HCA 22 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe [2017] NSWSC 818 Ye v Fung [2006] NSWSC 243 Yesilhat v Calokerinos [2015] NSWSC 1028 Zetting v Müller [2017] NSWSC 659 Texts Cited: G E Dal Pont and K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis) P W Young, Declaratory Orders (2nd ed, 1984 Butterworths) Category: Principal judgment Parties: Jacqueline Bailey (Plaintiff) Gail Charlotte Palombo (Defendant) Representation: Counsel: D M Flaherty (Plaintiff) R W Tregenza (Defendant)

Solicitors: Caldwell Martin Cox (Plaintiff) Bell Lawyers (Defendant) File Number(s): 2019/00215421

Introduction

1. HIS HONOUR: In this case, the principal, although not the sole, issue for determination is whether Jacqueline Bailey, the Plaintiff, was the "spouse" of Brian Palombo (the deceased) as at 11 October 2018, the date of his death. If she was, it is then for the Court to determine how the deceased's estate is to be distributed, and also to whom administration of the deceased's intestate estate should be granted.
2. In this case, some of the persons involved share the same surname. As such, where it is necessary to do so, and without intending any disrespect, I shall refer to persons, other than the parties, by first name to avoid confusion.
3. By amended Summons filed on 20 May 2020, the Plaintiff sought the following relief: "1. A Declaration that the Plaintiff was the 'spouse' of the late Brian Palombo deceased ('the Deceased') within the meaning of Sections 104 and 105 of the Succession Act 2006 ('the SA') immediately before the Deceased's death. 2. A Declaration that the Deceased died intestate on 11 October 2018. 3. A Declaration that the Plaintiff and Defendant are entitled to the whole of the Deceased's estate in equal shares pursuant to the provisions of s 123 and/or s 125 of the Succession Act 2006. 4. An order that the NSW Trustee and Guardian be appointed as administrator of the estate of the Deceased. 5. An Order that an administration bond be dispensed with. 6. An order that the matter be referred to the Registrar to complete the grant. 7. Costs."
4. The Defendant named in the amended Summons is Gail Charlotte Palombo. There is no dispute that she and the deceased were married to each other at the date of the deceased's death but that they had been separated, and living apart, from about July 2010.
5. There were three children of the marriage of the deceased and the Defendant to whom I shall refer later in these reasons. Each has given evidence in these proceedings.
6. By Cross-Summons filed on 20 August 2019, the Defendant sought the following relief: "1. A declaration that Brian Palombo, late of St. Clair in the state of New South Wales, deceased died intestate on 11 October 2018. 2. An order that administration of the estate of the deceased be granted to the cross claimant. 3. An order that, in the event that the plaintiff/cross defendant was a spouse of the deceased at the time of his death (which is not otherwise admitted) that pursuant to section 126 of the Succession Act 2006 that a Distribution Order be made in relation to the estate of the deceased in relation to the defendant/cross claimant and the plaintiff/cross defendant 4. An order that the administration bond be dispensed with. 5. An order that the matter be referred to the Registrar to complete the grant. 6. Costs."

Post Hearing Development

1. Following the conclusion of the hearing, counsel for the Defendant, Mr R W Tregenza, sent an email dated 6 July 2020 to the Court (and to Mr D M Flaherty, counsel for the Plaintiff) in the following terms: "I have informed counsel for the plaintiff, Mr Flaherty, that the defendant received a significant insurance payout consequent on the death of the deceased. If convenient, could His Honour relist the matter on a day this week on or after Wednesday (allowing a day or so for the preparation of an affidavit by the defendant and for Mr Flaherty not being available tomorrow) raising the matter before the Court. Mr. Flaherty consents to this course. I am endeavouring to copy Mr Flaherty into this email, but as I am doing so on my phone from Penrith, if I do not do so successfully then I will send him a copy."
2. Although it was not expressed as such, I assumed that the Defendant was seeking leave to re-open her case. Such an application may be made under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 2.1 and 29.5, which provide, respectively: 2.1 Directions and orders The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. … 29.5 Conduct of trials generally The court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.
3. Any decision to grant leave to re-open is one that involves the exercise of discretion, and the question whether the interests of justice are better served by allowing, or rejecting, the application: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 (Clarke JA, Mahoney and Meagher JJA agreeing). The circumstances to be considered include: whether there is prejudice to the other party; the reasons why the evidence was not led in the first place; whether there had been a deliberate or tactical decision made not to call the evidence during the hearing; any delay in making the application; and the importance, relevance and probative value of the proposed new evidence to the issues in the case. See also Smith v NSW Bar Association (1992) 176 CLR 256 at 266-267; [1992] HCA 36 at [32] (Brennan, Dawson, Toohey and Gaudron JJ).

Issues for determination

1. Prior to the commencement of the hearing, the legal representatives agreed that there are a number of specific questions for the Court's determination. They are: 1. Was the Plaintiff the spouse of the deceased immediately before his death within the meaning of Ch 4 of the Act? In the events that have happened, this requires the Court to determine whether the Plaintiff and the deceased were in a de facto relationship that had been in existence for a continuous period of two years. 2. If the Plaintiff is a spouse of the deceased, should there be a distribution order made by the Court pursuant to s 126 of the Act? 3. If a distribution order is made, what is the just and equitable distribution of the estate of the deceased and should it include any conditions? 4. How should the costs of the proceedings be borne?
2. (As will be read, the last issue was resolved during the course of the hearing.)

Background facts that are not in dispute

1. I turn now to a more detailed consideration of the facts of the case.
2. The legal representatives of the parties provided to the Court a document that stated some of the agreed facts. I shall next set out these, and other, facts, which I consider are either undisputed, or which I am satisfied have been established on the evidence. 1. The deceased was born in March 1963 in Scotland, United Kingdom. He died, suddenly and unexpectedly, at the age of 55 years in October 2018. 2. The deceased did not leave any Will. 3. The deceased, at the date of his death, held property in New South Wales. 4. The Defendant was born in March 1962 and is now aged 58 years. 5. The Plaintiff was born in May 1965 and is now aged 55 years. 6. The deceased married the Defendant in March 1983 in Wishaw, Scotland. The marriage is a foreign marriage that is recognised as valid pursuant to Pt VA ("Recognition of foreign marriages") of the Marriage Act 1961 (Cth). 7. The deceased and the Defendant migrated to Australia in 1985. For a short period, after their arrival, they lived with the deceased's parents in the parents' home at Arundel Park Drive, St Clair (the St Clair property), a suburb of Sydney, about 39 kilometres west of the Sydney Central Business District. 8. In June 1986, the deceased and the Defendant purchased their own home, which was also located in St Clair. 9. The deceased and the Defendant had three children, being Ashleigh Anne Davis (née Palombo), who was born in January 1988; Emma Gail Schild (née Palombo), who was born in May 1989; and Kristy Nicole Palombo, who was born in September 1992. 10. The deceased and the Defendant separated in about July 2010. Immediately prior to separation, they had lived together in a property at Emu Plains, also a suburb of Sydney, about 58 kilometres west of the Sydney Central Business District. 11. At the date of the hearing, the Defendant continued to reside in the Emu Plains property. 12. Neither the deceased, nor the Defendant, following their separation, applied for a property declaration, or property alteration order, pursuant to s 78 or s 79, or entered into a Financial Agreement, under s 90C, of the Family Law Act 1975 (Cth). 13. The Defendant did not receive any correspondence from the deceased, or from any legal representative acting on his behalf, initiating proceedings, or even requesting that negotiations commence relating to a property settlement. 14. The Plaintiff has three children by a prior marriage, namely Adrian, who was born in June 1990; Danielle, who was born in July 1992; and Jasmin, who was born in October 1994. She and her husband separated in 2010 and a divorce order was made in 2013. (The names and dates of birth of the Plaintiff's children, and the year of separation from her husband, are taken from the chronology included in the submissions of counsel for the Plaintiff. They are not otherwise disclosed in the evidence. The facts have been included to complete a history of the parties.) 15. The Plaintiff and the deceased met in June 2011. 16. The deceased's mother died in September 2010, and his father died in July 2013. 17. The Plaintiff has remained living in the St Clair property, which is still registered in the name of the deceased. He had purchased the property, from his father's estate, in about May 2014. 18. In May 2019, steps were taken by Ashleigh to obtain a grant of Letters of Administration. Her application was rejected as she had no "interest" in the deceased's estate. 19. On 11 June 2019, the Plaintiff lodged a caveat requiring that "[n]o grant of Letters of Administration be made in the estate of [the deceased] … without prior notice to me". This is what is described as a general caveat. It has lapsed by effluxion of time, but the issue of administration has been overtaken by these proceedings.

The nature and value of the Estate

1. The Court made a direction on 13 May 2020 in the following terms: "4. Directs the parties to provide to the Chambers of the Succession List Judge, in hard and soft copy, an agreed schedule that contains: a. The assets and liabilities of the estate at the date of death; b. The assets and liabilities of the estate at the date of the schedule; c. The estimated costs and expenses of any property that is to be sold; d. The estimated costs of each party calculated on the ordinary and indemnity basis inclusive of GST; e. Any costs of any party that have been paid, and in relation to either party, whether those costs have been paid out of the estate of the deceased; and f. Any matters otherwise relating to the estate upon which agreement has been reached by 4:00 p.m. on 19 June 2020."
2. Although a document headed "Schedule of Assets and Liabilities as at 17 June 2020" was provided to the Court by the Defendant's solicitors, counsel for the Plaintiff, at the commencement of the hearing, stated that the contents were not agreed: Tcpt, 29 June 2020, p 3(36) - p 4(19). In the circumstances, it was returned to counsel for the Defendant and not included in the Court's papers.
3. The Court suggested that the parties, by their legal representatives, should endeavour to reach agreement on the assets and liabilities of the estate, and the value of those assets and liabilities, failing which it might be necessary to adjourn the proceedings. Indeed, an application to adjourn the proceedings was made by counsel for the Defendant on the second day, which application was refused: Tcpt, 30 June 2020, p 81(46) - p 82(01), p 87(32-50).
4. The complaint that had been made by the Plaintiff, throughout the proceedings, was that the Defendant had not disclosed the real value of the shares in private companies that the deceased held. The evidence revealed that there were, in fact, three companies, in which the deceased held shares, the value of two of which were the subject of dispute. The two companies, Kookaburra Sales & Services Pty Ltd and Kookaburra Plumbing & Electrical Pty Ltd, were used by the deceased to conduct his plumbing business. Kookaburra Plumbing & Electrical Pty Ltd had been registered on 23 December 2009. Kookaburra Sales & Services Pty Ltd had been registered on 15 March 1996.
5. In this regard, it is to be remembered that where an asset of a deceased's estate comprises shares in a company, in order to determine the value of the estate, the market value of the shares, rather than its nominal value, should be disclosed. This is because the nominal value will not, necessarily, reflect the financial worth of the asset, and, therefore, the financial benefit to which beneficiaries are entitled. In the case of shares held in a private company, there are well recognised methods of valuing those shares by suitably qualified professionals. Alternatively, it may be possible for the parties to agree on the company's accountants providing an estimate of the market value of the estate's shareholding: Bellman v Peters [2020] VSCA 143 at [74]-[75] (Tate, Kyrou and McLeish JJA). (As to the valuation of a proprietary company in the family law context, see the summary of the relevant principles in Ragland v Ballock [2020] FCCA 1685 at [24] (Judge WJ Neville).)

LIABILITIES Description Estimated value

1. MORTGAGES (a) Westpac Mortgage A/C - xxx4509 $ 181,613 (b) Westpac Mortgage A/C - xxx9049 $ 366,690 (c) Westpac Mortgage A/C - xxx4810 $ 184,570 (d) NAB Business Markets Loan A/C - xxx324 $ 650,000
2. CREDIT CARDS (a) NAB Visa - xxx2348 $ 5 (b) NAB Visa - xxx2920 $ 5,760 (c) AMEX - xxx008 $ 26,701 (d) CBA - Mastercard - xxx3979 $ 2,731
3. MISCELLANEOUS DEBTS (a) Revenue NSW - Land Tax (2018 instalment and estimated liabilities for 2019 and 2020) $ 38,726 (b) Penrith City Council - xxx Severn Street, St Marys $ 2,080 (c) Penrith City Council - xxx Arundel Park Drive, St Clair $ 2,972 (d) Penrith City Council - xxx Christie Street, St Marys $ 8,295 (e) Shoalhaven Water - xxx Walmer Avenue, Sanctuary Point $ 1,015 (f) Shoalhaven Water - xxx Naval Parade, Erowal Bay $ 1,937 (g) Shoalhaven City Council - xxx Walmer Avenue, Sanctuary Point $ 2,855 (h) Shoalhaven City Council - xxx Naval Parade, Erowal Bay $ 2,981 (i) BGT Tree Services $ 4,950 (j) AK Buckley Building $ 14,409 (k) Australian Taxation Office - Taxation liability (2017) $ 45,997 (l) Australian Taxation Office - Taxation liability (2018) $ 35,486 (m) Australian Taxation Office - Taxation liability (2019) - estimated to be $ 12,000 TOTAL $ 1,591,782 Net Estate - $2,687,941

1. A slight arithmetical error in the above went unnoticed during the hearing. Although it is of little moment, for completeness, the total assets had an estimated, or known, value of $4,279,623 and, consequently, the value of the net estate was $2,687,841.
2. However, as earlier noted, Ex SAL1 included the liability of $650,000 that is properly described as a liability of the business secured on the property of the deceased. Accepting the estimate of the value of the shares, but removing the liability from the calculation, increases the value of the deceased's estate to $3,337,841.
3. Again, on the third day of the hearing, the parties provided an agreed document identifying the nature and value of the property owned by the deceased and the Defendant as joint tenants at the date of the deceased's death. That document was marked Ex SAL3.
4. There was no dispute that the property identified as jointly held would pass to the Defendant as the surviving joint tenant. There was also no dispute that depending upon the nature of the distribution order, she would have to pay the debts secured on the jointly held properties. (The Defendant did not provide evidence that each of these properties had been transmitted to her following the death of the deceased.)
5. There was some dispute about whether the debts secured on the jointly held property would become debts of the Defendant. Mr Tregenza submitted that there was a continuing liability for contribution on the estate to bear part of the burden of these debts (presumably as a liability of the estate): Tcpt, 30 June 2020, p 56. Mr Flaherty took the opposite position (Tcpt, 30 June 2020, p 140) referring to s 145 of the Conveyancing Act 1919 (NSW). He did so again on the third day of the hearing. However, neither made any detailed submissions on the topic and no part of the debts secured on jointly held property was included in Ex SAL1.
6. As will be read, these reasons include a reference not only to the agreed value of each jointly held property, but also a reference to the debts secured thereon. While there was some minor dispute over the values of the jointly held property, the legal representatives provided an amended version of Ex SAL3 that was in the following terms (as further amended to correct apparent mathematical errors): Description Particulars of Other Joint Owner

1. Counsel agreed to the quantification set out above at the hearing: Tcpt, 1 July 2020, p 201(30-39).
2. Despite Ex SAL3 having been tendered, what use could be made of the evidence was the subject of dispute. Counsel for the Plaintiff submitted that the total net value of the properties, jointly held, which passed to the Defendant by survivorship, should be considered in determining the distribution order that would be just and equitable. Counsel for the Defendant submitted that it was irrelevant in the Court making that determination.
3. For reasons to which I shall come, I am of the view that the net value of property which the Defendant will receive by survivorship is a matter that is relevant, although that value will not be used in determining the value of the deceased's estate from which a distribution order may be made.
4. It became apparent, during the closing submissions of counsel, that which of the deceased's properties remained encumbered would be relevant to the nature of any distribution order. I therefore directed at the conclusion of the final day of the hearing that: "Directs the parties to forward to the Chambers of Hallen J by 4:00 p.m. on 2 July 2020 an agreed schedule disclosing the properties which are encumbered and the amount secured on each of them."
5. The solicitors for the Defendant duly provided that agreed schedule to my Chambers by email dated 2 July 2020. That schedule was in the following terms: Westpac Loan No Amount outstanding Properties secured #4509 $181,930 XX Arundel Park Dr St Clair NSW XX Arundel Park Dr St Clair NSW #9049 $367,836 XX Walmer Ave Sanctuary Point NSW XX Naval Pde Erowal Bay NSW #4810 $184,570 XX Walmer Ave Sanctuary Point NSW Total liabilities $734,336

1. It will be observed that there are slight differences in the amounts above and those disclosed in Ex SAL1. Presumably they arise from the differences in the loan balances outstanding at the date of the Schedule as compared to 2 July 2020. Accordingly, the total has been taken into account in determining the net value of the deceased's estate.

Credibility of the Witnesses

1. Whether or not the parties were in a de facto relationship is determined on an objective, not a subjective, basis. Some assessment of the reliability of the parties', and their witnesses', evidence is required. Credit findings assume a greater significance in cases where one party to the asserted relationship is dead: see, for example, Indjic v Stojanovic [2020] NSWSC 470 at [90]-[97].
2. Because of the position of the parties and the witnesses, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), which version of events is the more probable. It is also the case that a de facto relationship means a relationship which exists in fact and that is established by determining what the parties to the alleged relationship are doing.
3. No submissions were made about the credibility of any witness or the reliability of her, or his, evidence generally. Yet, the only truly independent witnesses are the witnesses called by the Plaintiff, namely, Christopher Palombo Snr, the oldest brother of the deceased, John Palombo, an older brother of the deceased, Christopher Palombo Jnr, a nephew of the deceased, Domenico Valenti, a labourer employed by the business conducted by the deceased, and Margaret Sutherland, a neighbour of the deceased. Each is truly independent as he, and she, does not have any direct, or indirect, interest in the estate or in the result of the proceedings. Each of the other witnesses is either a party, or in the case of the Defendant's witnesses, related by blood, or marriage, to her.
4. In relation to the Defendant and her witnesses (all family members), there is one matter that is pertinent in the assessment of her, and his, evidence respectively. It was not disputed that the deceased, intentionally, did not disclose to any of them that he was in a relationship with the Plaintiff. Indeed, despite encouragement from his nephew, and from Mrs Sutherland, he refused to do so, and each of them felt constrained to keep his confidence. It is clear that the Defendant, and her witnesses, only saw part of the picture.
5. The reasons for the deceased's non-disclosure, as expressed, appear to have been financial and emotional. He did not wish to have family law proceedings, principally by way of a claim for a property adjustment order, brought by the Defendant. In addition, he did not wish his children to know of his relationship with the Plaintiff.

The Statutory Framework - an intestate estate

1. Before turning to the other facts in the case, it is convenient to describe the statutory framework that applies in relation to an intestate estate in a claim such as this one. There is an absence of case law going to the scheme created by this part of the Act (although Lindsay J has written an extremely analytical, and learned, judgment in Re Estate Wilson, Deceased (2017) 93 NSWLR 119 at 121 [1]; [2017] NSWSC 1 at [1], which was "the first case of its kind to come before the Court … [involving] competing claims to administration, and beneficial ownership, of the intestate estate of a 56-year-old deceased Aboriginal man (adopted at birth into a non-Aboriginal family) …").
2. Consideration will be given to the relevant parts of Ch 4 of the Act (ss 101-140). The Chapter was inserted into the Act by the Succession Amendment (Intestacy) Act 2009 (NSW), which was assented to on 9 June 2009 and which came into operation on 1 March 2010 and it applies to persons dying intestate on, or after, that date: see Sch 1, Pt 4, cl 13 of the Act.
3. The long title to that Act stated that it was "to amend the Succession Act 2006 and the Probate and Administration Act 1898, to revise and re-state the rules for distribution on intestacy; and for other purposes".
4. Chapter 4 "must be read in the context of the Act as a whole, with an appreciation that the Act governs the making, alteration, revocation, revival and construction of wills (Chapter 2), applications for family provision relief (Chapter 3)", and to make provision for the distribution of intestate estates: Re Estate Jerrard, deceased (2018) 97 NSWLR 1106 at 1113 [33]; [2018] NSWSC 781 at [33] (Lindsay J).
5. In summary, Part 4.1 (entitled "Preliminary"), comprising ss 101-109A, contains foundational definitions. Part 4.2 (entitled "Spouse's entitlements") comprising ss 110-126, contains the entitlement of a surviving spouse. Division 3 of this Part, comprising ss 122-126, deals with the entitlement of multiple spouses where, for example, the intestate was married and also has one, or more, domestic partners, and the Court's power to make a distribution order, where an application is made for such an order.
6. Section 101 of the Act, relevantly, provides: eligible relative means a relative of the intestate who is entitled to share in the distribution of the intestate estate under Part 4.3. … intestate estate means: (a) in the case of an intestate who leaves a will - property that is not effectively disposed of by will, and (b) in any other case - all the property left by the intestate.

The Plaintiff's Evidence

1. I accept the following evidence given by the Plaintiff.
2. She met the deceased in June 2011 and "commenced a romantic relationship with him soon after". She said they "commenced living together as man and wife although not married to each other on or about 25 April of 2012", that is to say that on 25 April 2012, "the Deceased and I commenced living together in the … [St Clair property] being my current residential address".
3. There was a sexual relationship between them and that they "shared the usual house hold duties, went on numerous holidays together and attended many social functions together as a couple".
4. She admitted that "I rarely if, ever, saw the Deceased's children and we did not engage in social events with them". She also wrote: "12. I was (and still am) employed throughout my 6½ year relationship with the Deceased. I have lodged a tax return every year. My stated address on my tax returns in the 6 ½ years of living with the Deceased was never the same as that of the Deceased. I did that because the Deceased told me not to. 13. The Deceased and I would see each other every day during our relationship except when one or both of us were away for work commitments. As far as I am aware the Deceased did not see the Defendant very often after he separated from her in 2010. 14. The Deceased stated to me on a number of occasions, the last being whilst we were on holiday in Bali in September 2018, that due to the significant assets he had he didn't want to go through the hassle of a divorce with the Defendant. Also, the Deceased said that he did not want the Defendant or his children to know of his relationship with me as he didn't believe they would approve of it. Accordingly, I made sure that whenever the Deceased told me that one of his children was coming to visit him at the St Clair property, I put all of my clothes and belongings in cupboards where they could not be readily seen."
5. She said that she attended the deceased's funeral, as did her children. (The Defendant denied that the Plaintiff attended the funeral but since she had not met, or seen, the Plaintiff, she would not have known if the Plaintiff was there.)
6. The Plaintiff acknowledged that she "did not involve myself in his work activities". She knew that the deceased's daughter, Ashleigh, and, to some extent, the Defendant were employed in the deceased's business.

The Defendant's Evidence

1. The Defendant gave evidence that she and the deceased separated after 27 years together. She continued to live in the former matrimonial home at Emu Plains. Initially, they would see each other several times each week "for coffee and to discuss family arrangements". Over time, their meetings lessened although she and the deceased would often meet if the Defendant attended the Kookaburra Plumbing business premises.
2. The Defendant, despite the separation, continued to be in contact with the deceased's parents, visiting his mother at a nursing home in Penrith, where she would often see the deceased, who happened to be visiting at the same time. She continued to be in contact with the deceased's father, also.
3. The Defendant gave evidence that she and the deceased would attend weddings and family events, whilst the Plaintiff would not. She also referred to attending a nursing home at St Marys to visit the deceased's father. She also gave evidence that after the deceased's father died she would attend for dinner with the children, at the St Clair property, once a month. In giving this type of evidence, I did not form the view that she was endeavouring to paint a picture of their marital relationship continuing.
4. I shall not repeat all of the Defendant's evidence about her married life with the deceased or the contributions of each to the building up of their assets. She was not cross-examined upon her assertion that, during the marriage, she "undertook all the household duties. [The deceased] did not even mow the lawn. I brought up our three daughters without any significant assistance or support from [the deceased] other than financial support".
5. I have earlier referred to the property of the deceased at the date of the schedule and to the property that he jointly held with the Defendant.
6. The Defendant gave the following evidence of her financial circumstances: "39. My only income which I received and from which I can draw personally is from my wage with New South Wales Health. 40. I am now the sole proprietor of six properties and as a tenant in common with the estate of Brian of one strata unit, the latter being that at XX Severn St, St Marys. I am not certain as to the current occupancy of the strata title unit XX Severn St, St. Marys. I believe that it is rented and encumbered with National Australia Bank. 41. I live at XX River Road, Emu Plains. 42. The property at XX Jody Place, St Clair was, when Brian died, was rented to tenants. The premises were then unoccupied whilst renovation work was undertaken and has, since about August 2019 been occupied by tenants who pay rent. 43. The property at XX Elizabeth Drive, Vincentia is not tenanted. 44. The property at XX Alec Avenue, Mermaid Waters, Queensland is occupied by tenants who pay rent but, as far as I am aware, the rent is applied in payment of the mortgage to National Australia Bank. 45. The strata unit title at XX Mistletoe Street, Claremont Meadows was purchased in 2000 in joint names."

Submissions regarding the relationship

1. I have been assisted by the submissions which counsel made both in their written outlines and orally during the hearing. Whilst I have had regard to each of the submissions made, I do not propose to repeat all of them. What follows, therefore, is merely by way of emphasis. I shall deal, at this point, particularly, with the submissions on the topic of the de facto relationship.
2. Mr Flaherty, for the Plaintiff, in his written outline submitted that the Plaintiff and the deceased entered into a de facto relationship upon the commencement of cohabitation. Therefore, he said that they had been in a de facto relationship for the six and one half years prior to the deceased's death.
3. Mr Flaherty pointed to the corroborating evidence of the witnesses called by the Plaintiff. He submitted, in my view correctly, that none of the corroborating witnesses had any financial interest in the outcome of the case.
4. Mr Flaherty discounted the relevance of the relationship having been kept secret from the Defendant and the deceased's daughters. The reasons behind that deception, he submitted, could only be a matter of speculation. Finally he submitted at par 1.9 of his written outline: "But the fact that the Defendant and the Deceased's daughters were unaware of that relationship that the Deceased had with the Plaintiff does not mean that such relationship did not exist. The evidence is overwhelming that it did so exist."
5. In his oral submissions, Mr Flaherty reiterated that the Plaintiff's evidence of the relationship was corroborated by the witnesses called by her. He submitted that their evidence should be accepted.
6. As to the conflict between the evidence of the Plaintiff and her witnesses on the one side, and the Defendant and her witnesses on the other, Mr Flaherty submitted (Tcpt, 1 July 2020, p 170(06-12)): "It's quite clear - and I think your Honour made this observation from the bench during the course of the hearing - this is not a case where you have to form a view that one person is lying, and another person is not lying. Because it's quite clear that both the plaintiff and the deceased went to great lengths to keep their relationship secret from the defendant, and in particular, the daughters. They didn't keep their relationship secret from anyone else that we know of."

Determination regarding the relationship

1. Naturally, that the deceased failed to disclose his relationship with the Plaintiff to his immediate family over a period of six and one half years, and that the Plaintiff participated in that silence, is a relevant and important matter. Furthermore, any statements by the deceased, apparently inconsistent with the existence of the relationship, are also important. However, whilst, perhaps, complicating the resolution of the issue, neither is determinative of the ultimate issue. Both matters have been taken into account as part of all the circumstances.
2. I accept that if no person, other than the Plaintiff, had been aware of the relationship, and if the statements said to have been made by the deceased were accepted, the Plaintiff's evidence may not have been entirely credible, and might have spoken, loudly, against the existence of the relationship as a couple. But this was not the case. Others, independent of the Plaintiff and the Defendant, gave evidence of his, and her, observations, all of which are consistent with the existence of a de facto relationship.
3. Furthermore, there is an explanation for the deceased not having revealed the existence of the relationship to members of his immediate family. The Plaintiff gave evidence about her discussions with the deceased, at par 14 of her affidavit affirmed 20 June 2019: "The Deceased stated to me on a number of occasions, the last being whilst we were on holiday in Bali in September 2018, that due to the significant assets he had he didn't want to go through the hassle of a divorce with the Defendant. Also, the Deceased said that he did not want the Defendant or his children to know of his relationship with me as he didn't believe they would approve of it."
4. She also gave the following oral evidence, which I accept (Tcpt, 30 June 2020, p 68(06-09)): "Q. Did you just press Brian at some stage, you've got to tell your daughters about me? A. I didn't press him. I did ask if it would happen and he said one day it would but at this stage he didn't think they would accept me."
5. Both aspects of the Plaintiffs evidence were corroborated by others, to whom the deceased had given similar explanations: Affidavit, Christopher Palombo, 2 October 2019 at par 10; Affidavit, John Palombo, 3 October 2019 at par 9; Affidavit, Christopher Palombo, 15 June 2020 at par 11.

Evidence regarding what distribution is "just and equitable"

1. In considering what distribution in this case is "just and equitable" it is necessary to examine a range of circumstances as revealed in the evidence.
2. I have found it convenient to do so by examining the evidence under several headings or categories. In doing so, I am not suggesting that the matters the Court may consider under s 126 are confined to those factors. Those factors are merely those that have assumed a particular significance in the present case on the evidence before the Court and I have not ignored other factual matters referred to earlier.

Nature and Extent of the Deceased's Estate

1. I have already addressed above, in some detail, the nature and value of the deceased's estate. As stated above, the net value of the deceased's estate available to be distributed is $3,337,841.
2. It is, therefore, an estate of reasonably significant value.

Maintenance of Each Spouse

1. This is not a case where either spouse was being wholly maintained by the deceased during the periods of the respective relationships. The Plaintiff did not suggest otherwise although there was some financial support given to her.
2. The Plaintiff was employed throughout her relationship with the deceased. She deposed, in her affidavit affirmed 18 June 2020, that she receives a gross income of $51,202 per annum. It can be assumed, given that she has remained in the same position throughout her relationship with the deceased, that she received a reasonable income throughout the period of their relationship.
3. Although the Plaintiff had this income, and, presumably, met some of her own day-to-day living expenses, she deposed: "[The deceased] also contributed financially to my living expenses such as paying the mortgage, bills, my tolls and sometimes taking my car and putting in fuel in it. He would also often buying [sic] me clothes, shoes and presents."
4. In addition to that contribution to her living expenses, the Plaintiff also resided in the St Clair property. As stated earlier, the evidence did not disclose that she paid any rent or occupation fee on account of that residence.
5. I am satisfied that the Plaintiff was partly maintained by the deceased throughout their relationship.
6. There may have been a period when the children were young that the Defendant did not work, but this is not entirely clear. In any event, it was many years before his death and their separation. The Defendant remains employed. Her evidence, in cross-examination, was that her position is currently part-time at three days per week. It was unclear whether that has always been the case or whether the position was once full-time.
7. The Defendant gave evidence, in her affidavit sworn 18 June 2020, that she and the deceased had not entered into any financial agreement pursuant to s 90C of the Family Law Act. She added, however, that the deceased continued to contribute to her living expenses even following their separation. She deposed in her affidavit sworn 21 August 2019 at par 18: "Since the time of our separation Brian supported me financially. Brian met the mortgage payments on jointly owned property and paid the purchase price [of] a new vehicle for me, being a Volkswagen CC in February 2013. He paid all of my household bills and credit card bills, except for food."

Nature and Duration of Each Relationship

1. The Defendant and the deceased were married in March 1983 and separated in July 2010, after 27 years. As stated above, no divorce order was made. As at the date of the deceased's death, although separated, they had been married for over 35 years.
2. There was little evidence of the nature of the relationship between the Defendant and the deceased during the 27 years that they were together. The Defendant did give some evidence that she, through that time, attended to all the household duties and the raising of their daughters.
3. She gave further affidavit evidence, admitted over objection, that the deceased had been verbally abusive towards her and their children at times. It was her evidence that she initiated the separation.
4. That evidence was, the objection aside, unchallenged. It may be well so, although it is not necessary for me to make a finding to that effect. Suffice it to say, despite that evidence, it is plain that the relationship between the two of them irretrievably broke down with no suggestion that it might recommence.
5. The evidence from the Defendant, her daughters and the husband of each daughter, showed that the Defendant and the deceased continued to get along amicably at family events and on other social occasions. They also interacted on a frequent basis through the Kookaburra Plumbing business.
6. Even after the separation, the Defendant remained involved with the deceased's parents, and visited them when they were in nursing homes.
7. The deceased, too, showed a continued care for the Defendant. Kristy gave evidence that he surprised the Defendant with concert tickets: Affidavit, Kristy Nicole Palombo, 21 August 2019 at par 31.
8. I am satisfied that the deceased and the Defendant remained on reasonably good terms following their separation. That does not, however, detract from the fact that they were separated. Their relationship after 2010 must be viewed in that light.
9. The Plaintiff and the deceased met in June 2011 and commenced their relationship soon thereafter. By April 2012, they were living together, in the Plaintiff's words, "as man and wife".
10. I have already discussed, in some detail, the nature of the relationship between the Plaintiff and the deceased in coming to the conclusion that they were in a de facto relationship. Those matters are also relevant in determining a just and equitable distribution, although I will not repeat what has been written above.

Age and State of Health of Each Spouse

1. The Defendant is currently 58 years old. She did not give any evidence going to her state of health.
2. The Plaintiff is currently 55 years old. Similarly, she did not give any evidence going to her state of health.

Any Physical, Intellectual or Mental Disability of Either Spouse

1. Neither spouse disclosed any physical, intellectual or mental disability.

Nature and Extent of Obligations or Responsibilities Owed by the Deceased

1. Naturally, the deceased owed obligations to each of the parties, as a spouse. The nature of that obligation, however, varies.
2. The Defendant, on the one hand, was separated from the deceased. However, on the other, they remained married and the deceased continued to provide financial support to her up until his death.
3. Their relationship, even before separation, was of a considerable duration. That length strengthens the obligation and responsibility owed by the deceased to the Defendant.
4. In contrast, the relationship between the Plaintiff and the deceased was not of anything like that duration. Whilst six and one half years is not a very short relationship, it is substantially less than the length of the marriage of the Defendant and the deceased.
5. Nevertheless, the Plaintiff, too, was the deceased's spouse and, consequently, he owed an obligation and responsibility to her. Like he did the Defendant, the deceased partly financially supported the Plaintiff. It is also relevant that the relationship between the Plaintiff and the deceased persisted at the date of his death.
6. Although the Plaintiff and the Defendant are the parties to these proceedings and, ultimately, the deceased's estate will be distributed between them, they are not the only persons affected by any distribution order to be made. The deceased's children will be indirectly affected, even though none of them sought to make a family provision order.
7. As issue of the Defendant, a surviving spouse, the deceased's children have no entitlement under the rules of intestacy: s 123 of the Act. The learned authors of G E Dal Pont and K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis) explained in respect of s 112 of the Act: "If the intestate leaves a spouse but no issue, or leaves issue that are all also issue of the spouse, the spouse is entitled to the whole of the intestate estate. This represented a change from the previous law, which generally divided the estate as between the surviving spouse and the issue, driven in part by research revealing that only rarely did deceased persons bequeath their estate to be divided between their surviving spouse and their children. The children, it is assumed, will inherit from the surviving spouse."

Any Prior Agreement or Representation as to Division of Property

1. As has been repeated above, neither the deceased, nor the Defendant, made an application for any property adjustment order, pursuant to s 79 of the Family Law Act. It was a course that the deceased seemed determined to avoid. The Defendant was not asked why she did not make such an application. (Her evidence, in cross-examination, was that she did not want to get a divorce: Tcpt, 30 June 2020, p 113(06-17).)
2. There was no evidence given on the Plaintiff's part that suggested any kind of agreement had been reached by her, or representation had been made to her, in respect of the deceased's property.

Reasonable Held Expectations of Each Spouse

1. Neither the Plaintiff nor the Defendant gave evidence that they held any expectations as to what, if any, property they were to receive on the deceased's death.

Testamentary Intentions of the Deceased

1. In setting out the evidence of Christopher Palombo Jr above, I have already referred to the evidence available going to the deceased's testamentary intentions. He gave evidence of conversations with the deceased, in which the deceased signalled his intention that "the house" (which I take to mean the St Clair property) should pass to the Plaintiff: Affidavit, Christopher Palombo Jr, 15 June 2020 at par 18.
2. I accept that this was a more accurate reflection of the deceased's testamentary intention than what he communicated to Ashleigh, namely that he wanted the house to "stay in the family": Affidavit, Ashleigh Anne Davis, 19 June 2020 at pars 5-6, as it is consistent with his desire not to inform the Defendant and their children of the Plaintiff's existence.
3. There was no other evidence that went to the deceased's testamentary intentions.

Nature of any Jointly Held Property

1. As previously adverted to, the deceased held a significant amount of property jointly with the Defendant. In summary, the assets jointly held and the liabilities jointly owed comprised: 1. Six parcels of real estate with an agreed value of $4,412,820; 2. A bank account containing $115,352; and 3. A liability owed to the National Australia Bank secured by a mortgage totalling $1,021,060.
2. The net value of the jointly held property is, therefore, $3,507,112.
3. Because the jointly held property does not form part of the deceased's estate, it cannot be the subject of a distribution order under Pt 4.2 of the Act. It is not actual estate and Ch 4 contains no notional estate provisions of the kind found in Ch 3. This does not mean, however, it should not be considered in determining what is just and equitable.
4. Yet, it must be borne in mind that both the deceased and the Defendant chose to retain the jointly held property as such after their separation. It would have been a relatively simple matter, for either, or both, to sever the joint tenancy: see Real Property Act 1900 (NSW), s 97. Thus, it is important to respect circumstances that the deceased and the Defendant can be assumed to have considered, whether, or to what extent, there should be some different arrangement concerning their assets (whether held individually or in common) whilst their marriage subsisted and, in the present case, after their separation. Whatever express, or implicit, assumptions that each may have made to the effect that existing arrangements of marital property interests were sufficient, or appropriate, during the continuance of their marital relationship were not brought to an end with the cessation of that relationship.
5. Even so, the fact that jointly held property, passes by survivorship to the Defendant, provides a significant benefit, which the Defendant, and the Defendant alone, receives as a result of the death of the deceased.
6. In contrast, there was no evidence that the Plaintiff and the deceased held any property jointly.

Nature of any Property Otherwise Passing to Each Spouse

1. It was only after the conclusion of the hearing that the Court was informed that the Defendant had received a sizeable life insurance payment consequent upon the death of the deceased. In her affidavit sworn 13 July 2020, the Defendant made, for the first time, the following disclosure: "I am the sole beneficiary of AMP insurance policies numbered XX and YY held, I believe by the deceased and paid for by the business of Kookaburra Plumbing and Electrical Pty Ltd out of the bank account of Kookaburra Sales & Service Pty Ltd in respect of the life of the deceased and from which I received payments totalling $4,243,505.97."
2. The Defendant annexed to that affidavit two letters from AMP confirming the finalisation of the claims on the respective policies. Both letters were dated 6 February 2019 and confirmed the deposit of $1,269,291.23 and $2,974,214.74 respectively into the Defendant's nominated bank account.
3. It should be observed that the full amount had, therefore, been received by the Defendant prior to the filing of the Summons that commenced these proceedings. There was no explanation for her failure to disclose the information in her affidavits earlier than she did.
4. Mr Flaherty submitted at par 1.17 of his supplementary written submissions: "Secondly it is submitted that, given the failure of the defendant to make disclosure of such a significant payment in a timely fashion, inferences can and should be drawn as to the Defendant's credibility. What else has she failed to disclose? In such circumstances the Court is entitled to be bold."
5. Mr Flaherty also submitted at par 1.15 of his supplementary written submissions: "The belated disclosure of by [sic] the Defendant of the receipt of this large sum raises a number of issues. Firstly it is clear that the submissions of the Plaintiff referred to above have to change. If not, and the Plaintiff's submissions (as they stand) were accepted, the Defendant would, as a result of the death of the Deceased receive [$7,533,968.97]."
6. I should note that the solicitors for the Plaintiff were not entirely unaware of the Defendant's receipt of the life insurance payment. I have had regard to a letter dated 23 May 2019 from Bell Lawyers (the solicitors for the Defendant) to Caldwell Martin Cox (the solicitors for the Plaintiff) which was annexure D to the Plaintiff's affidavit affirmed 20 June 2019.

Eligibility of Each Spouse to a Pension, Allowance or Benefit

1. There was no evidence that either the Plaintiff or the Defendant was in receipt of a pension, allowance, or benefit, from either a Government scheme or a superannuation fund.
2. Indeed, the agreed schedule of assets and liabilities (Ex SAL1) did not disclose that the deceased was the member of any superannuation fund.

Contributions to the Acquisition, Conservation and Improvement of the Deceased's Estate

1. I propose to separate the discussion of the contributions, respectively, of the Plaintiff and the Defendant to the deceased's estate from those contributions to the deceased's welfare. I do so only for convenience, and do not suggest that any primacy should be afforded to contributions to the deceased's estate.
2. Beginning with the contributions made by the Defendant, it will be apparent from the evidence above that the deceased acquired a number of properties throughout his marriage to the Defendant. The majority of these properties were held with the Defendant as joint tenants. Those properties (as found in Ex SAL3) were: 1. XX Elizabeth Drive, Vincentia, acquired in 1999; 2. XX Mistletoe St, Claremont Meadows, acquired in 2000; 3. XX Jody Place, St Clair, acquired at some point prior to 2001; 4. XX Severn Street, St Marys, acquired in 2001; 5. XX River Road, Emu Plains, acquired in 2001; and 6. XX Alec Avenue, Mermaid Waters, acquired in 2003.
3. The properties at Jody Place, St Clair and Emu Plains served, respectively, as the matrimonial home.
4. There was also evidence of a second property at Jody Place, St Clair, which had been purchased earlier by the Defendant and the deceased (but later sold). This property also served as the matrimonial home for a time.
5. The properties at Vincentia and Mermaid Waters served as holiday homes or, when not used for that purpose, were tenanted. There was also evidence from the Plaintiff that the Jody Place, St Clair property had been rented by her daughter since 2016. The rent was paid to the Plaintiff who passed it on to the deceased: Tcpt, 30 June 2020, p 59(20-42).
6. The property at XX Severn Street, St Marys was, from 2001, used as the factory premises for the Kookaburra Plumbing business.
7. It was unclear on the Defendant's evidence what, if any, use was made of the Claremont Meadows property.
8. In addition to the jointly held properties, the deceased acquired other properties in his sole name, or as tenants in common in equal shares with the Defendant, during their relationship. Those properties (as found in Ex SAL1) were: 1. YY Severn Street, St Marys, acquired in 1998; and 2. WW Severn Street, St Marys, acquired in 2007.

Contributions to the Deceased's Welfare and the Relationship

1. The process of determining such contributions, quintessentially, is not a mathematical exercise. They should be regarded as neither less valuable nor less important than other contributions.
2. Although there was not a great deal of specificity in the evidence as to the contributions made, I remember what Brereton J (as his Honour then was) (Basten JA and Hunt AJA agreeing) said in Kardos v Sarbutt (2006) 34 Fam LR 550 at 561 [36]; [2006] NSWCA 11 at [36], albeit in the context of the Property (Relationships) Act: "Thirdly, in proceedings under s 20, the court is not required to undertake a reductionist process analogous to the taking of partnership accounts by examining every alleged 'contribution' of the kinds described in the section with a view to putting a monetary value on each in order to reach an accounting balance one way or the other, then to be eliminated by the requisite financial adjustment; rather, the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind: Davey v Lee (1990) 13 Fam LR 688; (1990) DFC 95-084 (McLelland J)."
3. Equally in an application for a distribution order, it would not, in my view, be appropriate to attempt to put a precise monetary value on the contributions made by each spouse to the deceased's welfare.
4. I have already referred to the evidence, limited though it is, as to the Defendant's contributions as a parent and a homemaker. She gave evidence that: "During the 27 years when Brian and I lived together I undertook all the household duties. Brian did not even mow the lawn. I brought up our three daughters without any significant assistance or support from Brian other than financial support."
5. She also deposed at par 46 of her affidavit sworn 21 August 2019: "I contributed non-financially as his wife, particularly by bringing up our daughters and undertaking household duties."
6. She was not challenged on that evidence during cross-examination.
7. In the case of the Defendant, it is clear that her non-financial contributions were significant throughout the marriage relationship. For the most part, those non-financial contributions ended once the two of them separated.
8. Even so, there was some evidence of continuing contribution even after this time. The Defendant continued to participate and maintain the family unit comprised of her, the deceased and their daughters. Undoubtedly, the continuation of that family dynamic would have been to the deceased's welfare.

Character and Conduct of Each Spouse and of Any Other Person

1. I have already referred to the conduct of the Plaintiff, the Defendant and the deceased's children above.
2. I am satisfied that each had a positive relationship with the deceased. This was not a case where, for example, there was a degree of estrangement between the deceased and a spouse or other family member.
3. To the extent that the character and conduct of any person reflects positively upon them, I have taken it into account as the contribution that she, respectively, made to the deceased's estate and welfare.

Financial Resources and Needs of Each Spouse

1. The Defendant did not give any evidence specifically going to her financial resources and needs. She did give evidence of her income from her employment at New South Wales Health. Albeit she clarified in cross-examination that the position is only part-time. Additionally, she gave evidence that three of the jointly held properties are tenanted, evidence that she confirmed in cross-examination. That is another income stream for the Defendant, although one the value of which was unclear on the evidence.
2. It is clear that she holds the property formerly held jointly with the deceased. That jointly held property has a total net value of $3,507,112. She has also received the death benefits of $4,243,505, to which reference has been made.
3. The Defendant gave evidence that one of the St Marys properties that forms part of the deceased's estate was purchased by the deceased and her in 1998 as tenants in common in equal shares: Affidavit, Gail Charlotte Palombo, 21 August 2019 at par 26. Presumably, although unclear on the evidence, she retains the one half share in the property (which, based on Ex SAL1, would be worth $200,000).
4. There was also evidence, annexed to the Defendant's affidavit sworn 21 August 2019, that she held one of the two ordinary shares in Kookaburra Sales & Services Pty Ltd (the other being held by the deceased). However, as discussed above, the value of the company was not disclosed on the evidence. Whatever its value, the Defendant is entitled to the shares.
5. Without evidence, it is difficult to form any view of the Defendant's financial needs. It provides a basis for the Court to infer that she has sufficient income and resources to meet her needs. Taken with the properties she now holds, or will come to solely own, by survivorship, and the amount she received from life insurance, it is easier to draw this inference.
6. Conversely, the Plaintiff did, albeit belatedly, affirm an affidavit going to her financial circumstances.
7. She receives gross income from her position as an area manager ($51,202 per annum), a tax-free travel allowance ($185 per week) and a net income from her investment property ($816 per annum).
8. Her assets include a property at Sanctuary Point ($400,000 - $500,000), a motor vehicle ($29,000) and superannuation ($173,400). Her only liability is a loan secured by a mortgage against her Sanctuary Point property ($259,140).

Commitments of Each Spouse

1. Neither spouse has any commitments to support any other person.
2. As the Plaintiff acknowledged, her three children are now adults and are not dependent upon her. She did not allude to any other person being dependent upon her.
3. Similarly, there was no evidence that the Defendant was liable to support any other person. All three of the deceased and her children are now adults and there is nothing in the evidence to suggest that they remain dependent upon the Defendant (or, indeed, the deceased).

If Either Spouse is Cohabiting with Another Person - The Financial Circumstances of the Other Person

1. Neither the Plaintiff nor the Defendant is cohabiting with any other person.

Any Other Person Liable to Support Either Spouse

1. On the evidence before the Court, it does not appear that there is any other person liable to support either spouse.

Effect of Any Proposed Order on the Earning Capacity of Each Spouse

1. It is unlikely that a distribution order would have any significant impact upon the earning capacity of the Plaintiff or of the Defendant. At its highest, it may slightly improve the earning capacity of each to the extent that a distribution allows each of them to pay down her respective debts.

Submissions regarding what distribution is "just and equitable"

1. Mr Flaherty, in his written outline, addressed what was to be understood by the use of the phrase "just and equitable" in s 126 of the Act. However, he did so under the heading "The Defendant's Cross - claim", apparently labouring under the apprehension that s 126 was not relevant to the Plaintiff's claim.
2. Mr Flaherty began with the observation that the phrase "in any way it considers just and equitable" invokes an exercise of the Court's discretion. He likened that discretion to the one found in s 79 of the Family Law Act (and, I observe, similarly in s 90SM of the Family Law Act).
3. He acknowledged that s 126 of the Act does not set out a list of factors to be taken into account. However, he submitted that, reading the section alongside other provisions to be found in Pt 4.2, there was a presumption of equality of division amongst the spouses. He submitted at par 3.6 of his written outline: "Even so it is submitted that in order to make an order different from that contemplated by s124 and/or s125 (1) (c) and/or s125 (2) of the SA (equal division between spouses) there must be some basis for so doing in order to make any unequal division 'just and equitable'."
4. Mr Flaherty submitted that the Defendant had not led any evidence providing a basis for an unequal division of the deceased's estate in her favour. To this end he pointed to the lack of evidence adduced by the Defendant going to her financial circumstances. He concluded at par 3.9 of his written outline: "This is not the Family Court of Australia. The Defendant cannot use these proceedings to argue those matters which may have been available to her in the Family Court any time after separating from the Deceased in 2010 and whilst he was still alive."
5. I am unable to accept either of these submissions as they fly in the face of s 126(4) which specifically states that if the Court considers it just and equitable to do so, it may allocate the whole of the property to one of the spouses to the exclusion of the other or others.
6. In his oral submissions, Mr Flaherty submitted that the discretion in s 126 was unfettered to the extent that the Court was required to take into account all of the circumstances and not just the period of each relationship: Tpct, 1 July 2020, p 178(14-22).

Determination

1. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered. It is not necessary to repeat the factual matters which have led me to reach the conclusion set out below.
2. Importantly, I have considered the duration of each relationship, the length of the deceased's separation from the Defendant, all the contributions, both financial and non-financial of each of the parties to the acquisition, conservation and improvement of the assets of the deceased, as well as to the welfare of the deceased during cohabitation (respectively) and after separation (in the case of the Defendant). This has led me to weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of her respective cohabitation with the deceased. Naturally, in broad terms, I have analysed the nature, form, characteristics and origin of the property currently comprising the estate of the deceased and the existing property interests of each of the parties in the deceased's property and otherwise.
3. I have also considered the financial and material circumstances of each of them (so far as they are known) as well as the other factors to which I have referred above. They are of similar age and neither appear to have any health issues. The Defendant is still involved in the lives of the children and makes some contribution in that regard. The Plaintiff does not have to make any contribution to a child of the relationship. Neither is cohabiting with any other person nor has any responsibility to support any other person.
4. Remembering that the determination of what is just and equitable is not a mathematical calculation, and having considered the range of considerations, I am of the view that a distribution order which provides the Plaintiff with the St Clair property, unencumbered, and a lump sum of $500,000, would satisfy the requirement imposed on the Court in relation to the distribution order made. Such a distribution order would ensure that she is secure in accommodation, that she would have enough to repay the debt secured by the mortgage on her Sanctuary Point property, and still leave her with a lump sum of about $250,000 for exigencies of life.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2020