Barry v Registrar of Births, Deaths and Marriages - [2022] NSWCATAD 203 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

Barry v Registrar of Births, Deaths and Marriages

[2022] NSWCATAD 203

NCAT Administrative and Equal Opportunity|2022-06-20

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2022-06-20

Catchwords

(2011) 258 FLR 236 Lynam v Director of Social Security (1983) 52 ALR 128, McDonald v Director-General of Social Security [1984] FCA 57

Source

Original judgment source is linked above.

Catchwords

(2011) 258 FLR 236 Lynam v Director of Social Security (1983) 52 ALR 128, McDonald v Director-General of Social Security [1984] FCA 57

Judgment (18 paragraphs)

[1]

The Applicant's Submissions

Ms Barry filed written submissions. In summary, those submissions were that: 1. Damien and Ms Froud were not in a de facto relationship at the time of Damien's death. 2. There existed a relationship between Damien and Ms Froud which could, at most, be described as "girlfriend and boyfriend" which was at times affectionate and sexual but this relationship did not constitute a mutual commitment to a shared life. 3. Alternatively, if a de facto relationship existed at some stage, Ms Froud had terminated it via a lengthy text message sent ten days prior to Damien's death. 4. Neither Ms Froud nor Damien had disclosed to Centrelink their relationship, if it existed. 5. Ms Barry had received advice from her barrister retained in the probate proceedings to the effect that it would be unlikely Ms Froud would be successful in establishing that a de facto relationship existed at the time of death. 6. The outcome of the probate proceedings established, by various means, that there was no de facto relationship in existence at the time of Damien's death. 7. From about December 2019, Damien was actively "seeking sexual relationships" and that, just prior to his death, he was in contract with potential intimate partners using a dating website called "Shemale".

[2]

Evidence, Relevant Facts and Findings

Damien Barry died on 29 August 2020. He had taken his own life.
Damien's body was found by Ms Froud shortly after he died when she attended his rented home on the Central Coast in New South Wales. Ms Froud's evidence was that she had travelled to Damien's house that day to spend the weekend with him as was customary for the relationship. Indeed, the staying with each other on weekends is evidenced by several text messages sent between them at earlier times.
On finding Damien's body, Ms Froud called the police and at some stage she also informed Ms Barry.
Ms Froud arranged the funeral and cremation and informed the Registrar of the death.
Damien died without a will and had no children of his own. The value of his estate was small - the assets comprising the estate are recorded as being less than $30,000. Despite this, it is apparent from the orders made in the Supreme Court of New South Wales that Ms Barry and Ms Froud both sought to be appointed as administrators of the estate. Additionally, Ms Barry commenced proceedings against Ms Froud in the Local Court.
Prior to his death, Damien was an employee member of Maritime Super, a superannuation fund and had directed his employer to make superannuation payments to Maritime Super. There was no evidence before the Tribunal as to the amount Damien's superannuation death benefit came to however given his entire working life had coincided the introduction of compulsory employer-sponsored superannuation, it is likely the sum was not trivial - at least to Ms Froud and Ms Barry. Superannuation benefits do not automatically form part of an estate of a deceased person, the powers of the superannuation trustee as set out in the deed of the fund usually operate to the exclusion of the deceased's will (where there is one) or a non-binding beneficiary nomination; see, for example, McIntosh v McIntosh [2014] QSC 99 and Brine v Carter [2015] SASC 205. Ms Froud was paid death benefit entitlements from Maritime Super however it is not clear the basis on which such payment was made - whether the fund determined that she was a spouse or dependent for the purposes of the Superannuation Industry (Supervision) Act 1993 (Cth), s 10 and the Superannuation Industry (Supervision) Regulations 1994 (Cth), r 6.22, or whether Ms Froud was nominated by Damien as the beneficiary of his death benefits pursuant to a binding death benefit nomination. Whatever the circumstances by which Ms Froud was paid the death benefit, her entitlement to that benefit was not to be the subject of any challenge after entry of orders in the Supreme Court proceedings. However, I note that prior to those consent orders Ms Barry had strongly asserted to Maritime Super that Damien's superannuation benefit formed part of his estate and various complaints were either made or proposed by her to Maritime Super and government regulators.
In support of her application before the Tribunal Ms Barry relies in large part on the material provided by the Registrar in the bundle of documents filed pursuant to the Civil and Administrative Tribunal Act, s 58 (the s 58 Bundle). Ms Barry also relies on statements, text messages and screen shots from a computer which are described below.
The s 58 Bundle contains, among other things, the following: 1. a lengthy statement from Ms Froud in support of the existence of a de facto relationship. I will address aspects of her statement relevant to the considerations of whether there existed a de facto relationship at the time of Damien's death in detail below. 2. Material included with Ms Froud's statement being the following documents and materials (where convenient I have attempted to summarise Ms Barry's submissions regarding this material): 1. Numerous forms completed Damien where he nominated Ms Froud as his "girlfriend", "partner" and, in one instance, as his "misso". Ms Barry's submissions deal with this material only to this extent: firstly there is an unsubstantiated claim that one document is in Ms Froud's handwriting (even if it was, Damien presumably submitted the form and agreed with its contents) and secondly, that the other references to Ms Froud "notably" are not to her as Damien's fiancé. 2. Birthday, Christmas and anniversary cards shared between Ms Froud and Damien. Ms Barry's submissions are to the effect that even close friends exchange greeting cards and this material does not advance the matter. 3. A note of service for the funeral of Ms Froud's father which listed Damien as a pall bearer. 4. An email exchange in March 2019 from Damien Barry to his employer in which he asks for some leave to be with Ms Froud after she experienced a miscarriage of pregnancy. Ms Froud, in her statement says this was the second miscarriage she had experienced involving Damien and that, up to the date of his death, there is a suggestion that they had continued to discuss and try to conceive a child. 5. Emails sent by Ms Froud making inquiries about a business venture with Damien. Ms Barry's submissions note that the business referred to in the emails did not eventuate and hence has no relevance, however that submission fails to grapple with the fact that this material evidences a shared future as between Ms Froud and Damien. 6. Numerous photographs and social media posts depicting Damien with Ms Froud, her children and other family members. Ms Barry submits that several of the social media posts were made after Damien had died and that the number and substance of this material is poor given the extent of the relationship asserted by Ms Froud to have existed. 7. Bank statements for an account in Damien's name showing frequent transactions between Ms Froud and Damien between 1 October 2018 and 31 March 2020. There is no suggestion that Damien had any other bank accounts and from a review of those bank statements it appears this was the account into which Damien received salary and wages and from which he met all his expenses. Copies of bank statements which show frequent transactions between Ms Froud and Damien over time up to 31 March 2020. 8. Various correspondence, texts, emails and social media posts concerning Damien's death, funeral and the disposal of his remains including text messages sent by Ms Froud inviting people to the funeral and wake. The material shows that none of the steps taken by Ms Froud with regard to the funeral and disposal of Damien's remains was orchestrated by Ms Barry or performed at her request. Equally, there is no evidence that Ms Barry made any objection to Ms Froud carrying out the funeral and disposal of Damien's remains. 9. A set of text messages between Ms Froud, Ms Barry and Glenn Barry in the period after Damien's death and prior to the commencement of proceedings in the Supreme Court of New South Wales. Ms Barry does not deny these exchanges nor does she provide any further context for them. 1. In addition to the material the Registrar had received from Ms Froud, there were documents received from Ms Barry including: 1. Three unsigned, draft affidavits prepared in respect of proceedings in the Supreme Court of New South Wales, and 2. a copy of the judgment/order made by consent of the parties in the Supreme Court of New South Wales in respect of those proceedings showing Ms Froud as plaintiff and cross-defendant and Ms Barry as defendant and cross-claimant.
Ms Barry, in her submissions and in her correspondence with the Registrar, relies heavily on the consent orders made in the Supreme Court proceedings. It is her submission that by settling the proceedings or "relinquishing her claim", Ms Froud has admitted that she was not in a de facto relationship with Damien at the time of his death and that order 4 "dismissed Ms Froud's claim of entitlement to grant of letters of administration on the basis that she was in a de facto relationship at the time of the death of the deceased". Further that the Court must be satisfied with compliance of the rules of probate before granting letters of administration.
As the Registrar submitted, the proceedings in the Supreme Court were determined in a manner consistent with the standard rules of evidence and procedure and in particular: 1. The proceedings were concluded at an early stage without any evidence being tendered, submissions filed or findings made by the Court; 2. The Court did not consider whether Ms Froud was Damien's de facto and made no finding either way. 3. The proceedings were determined by entry of orders by consent; 4. The grant of administration was made to Ms Barry as a result of consent orders, this does not mean no other person was eligible since the Court had never heard any evidence or submissions and had made no findings to that effect; and
The Registrar's submission is correct and is accepted by the Tribunal. Ms Barry cannot rely in these proceedings on a set of consent orders where no findings have been made by the Court to assert that Ms Froud, in agreeing to such orders, conceded for all intents and purposes that she was not Damien's de facto partner. To the extent matters in the Supreme Court proceedings are relevant to the matters to be determined here, they are addressed below.
As noted above Ms Barry filed and served additional material on which she relied to assert that there did not exist a de facto relationship between Ms Froud and Damien. This material included the following: 1. Emails between Damien and Ms Froud between 22 and 25 January 2019 including a long message from Ms Froud concerning their living and financial arrangements. 2. Statutory declarations from Demelsa Watts and Shane Watts. As noted above, draft affidavits from Ms Watts and Mr Watts are also enclosed in the s 58 bundle and contain largely the same material. The draft affidavits and statutory declarations made by Ms Watts and Mr Watts bear comment. 1. These were people who purported to know Damien well and who say they were in a position to observe the relationship existing between him and Ms Froud, in particular from about March 2018. 2. In my respectful opinion, the content of the draft affidavits (and likewise the statutory declarations) would not have been capable of being admitted in court proceedings - not only in terms of form but also because of the substance of the material deposed. Much of the text of each deponent is identical to the other suggesting that the documents have been developed together in a manner makes it impossible to discern what each witness alone, saw or heard or did. In these proceedings, the Tribunal cannot be confident that these statements give a true account of the facts known to either witness nor can the Tribunal be confident that the statements were not contaminated by a process of discussion, group drafting or, in some instances direct copying of material. 3. To the extent there is any original content in those affidavits, that content is vague and conclusionary about key matters. Each purport to know the inner-most feelings of Damien about Ms Froud without identifying with the basis for such knowledge. 4. Both statements are highly critical of, and provide florid commentary about, Ms Froud's behaviour and character in a manner which is frankly scandalous. One example of many in her statement is where Ms Watts makes derogatory observations about Ms Froud becoming pregnant at an early stage in her relationship with Damien when she also had teenage children. This material could not assist the Tribunal in any determination of matters before it. 5. The content of Ms Watts' statement is markedly at odds with the text exchanges between Ms Watts and Ms Froud which Ms Watts discloses as part of her statement. The text messages commence from about 10 October 2020 (about a month after Damien's death) and continue over several weeks. It is apparent from those text exchanges that Ms Froud considered Ms Watts a close confidante in whom she confided intimate details of her health, her relationship and her complex grief arising from Damien's death and her discovery, after his death, that Damien had sought sexual encounters outside the relationship. 6. Despite both Ms Watts and Mr Watts being manifestly ill-disposed towards Ms Froud, both contents of the statements demonstrate that Ms Froud was a significant feature in Damien's life up to an including the period immediately before his death and the statements also suggest Damien was intimately involved in providing care as well as financial and emotional support to Ms Froud at all times before his death. 1. A draft affidavit from a third person, Adam Rounce, is included in the s 58 Bundle, the draft is unsigned and, unlike Ms Watts and Mr Watts, Mr Rounce does not provide a signed statement. The Tribunal places very little weight on the unsigned draft. As with the material provided by Ms Watts and Mr Watts, Mr Rounce's draft statement contains material which is highly derisive of Ms Froud but again, the draft statement (to the extent any weight can be given to it) discloses that Ms Froud and Damien were in a relationship and, though turbulent, the relationship was a constant feature in of Damien's life - though Ms Rounce gives not indication of whether he was in a position to observe the relationship at the time of Damien's death. 2. An affidavit of Ms Barry in response to a requisition from the Registrar of the Supreme Court of New South Wales, the affidavit is entitled "Affidavit Negativing a De Facto Relationship". This affidavit was provided after Ms Barry and Ms Froud had settled their respective proceedings where each sought to be appointed as administrator of Damien's estate. While I have no doubt that Ms Barry truly and sincerely considers the content of that affidavit to be true, the affidavit discloses only her opinion which is to be considered as one part of the factual matrix in these proceedings. 3. A text message recovered from Damien's mobile phone dated 19 August 2020 (about 10 days before his death) from Ms Froud which suggests that there had been discussion between them about ending their relationship. Ms Froud's message, in part states: I think what we said to each other on Saturday is correct. We need a break. I am not sure if this is the end of our story - but for now I feel we have no choice.
Absent from the materials before the Tribunal is any statement from Ms Barry or Glenn Barry. There is no onus in these proceedings, however the absence of evidence from Ms Barry is a matter to be taken into account in determining the extent to which Ms Barry's submissions are based on her own knowledge or on evidence she has tendered before the Tribunal.
Ms Froud provides some explanation as to why Ms Barry and Glenn Barry may not have been able to provide direct observational evidence, however she also gives unchallenged evidence of contact between Ms Barry, Damien and Ms Froud. Specifically, Ms Froud states that; 1. When Ms Froud and Damien first met, he was estranged from his family including Ms Barry and Glenn Barry. 2. Damien had told Ms Froud that he had, as a child, been the subject of physical, mental, and emotional abuse and neglect. 3. Shortly before his father's death in about February 2020, Damien started to have contact with his father and mother. 1. Damien contacted his father in late December 2019 after many years of estrangement and visited shortly before his father died. 2. Damien contacted his mother, Ms Barry, after the death of his father, or shortly after February 2020. 1. After coming back in contact with him, Ms Barry invited Damien and Ms Froud to visit her at home for tea. Damien and Ms Froud had duly made that visit. 2. Later, Ms Barry had gone to Ms Froud's home on one occasion, where she, Damien and Ms Froud's children dined together. 3. On the day prior to Damien taking his own life, he spoke to Ms Froud on the telephone about a bottle of aftershave his mother had given him for his birthday (on 10 August). Damien told Ms Froud that he had discovered his mother had given him a gift of aftershave for his birthday which appeared to be second-hand and that he was deeply hurt by this discovery.
Having regard to the material before the Tribunal, it is apt to address and make findings with respect to each of the non-exclusive criteria provided in the Interpretation Act , s21C.
In doing so, the Tribunal is mindful of the approach taken by the authorities with respect to similar provisions referred to above; Lynam v Director of Social Security (1983) 52 ALR 128, Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551 at [51]-[56], Haninkson v De Vries [2015] FamCA 833 at [92] and Herford & Berke (No.2) [2019] FamCAFC 182 which is to take account of all the circumstances, noting that the factors are non-exhaustive, and that the presence, absence or strength of any particular factor is not to be determinative. Fitzgerald J in Lynam at [131], stated: Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

[3]

The duration of the relationship

Having regard to the material before the Tribunal, the Registrar correctly identified that Damien Barry and Ms Froud commenced their relationship in about June 2017. The evidence on which this finding is based is Ms Froud's statement which sets out the date and details of when the relationship started. There is nothing in the evidence before me which contradicts that evidence. Assuming the relationship continued on until Damien Barry's death, then it was a relationship which existed for a little over three years.
Ms Barry submits the 19 August 2020 text message is conclusive evidence demonstrating the relationship between Damien and Ms Found had ended before Damien's death. Whether a relationship continues after an expression by one of the parties of an intention to "take a break" is a matter of judgment having regard to all the evidence available, see for example Garrick v NSW Registry of Births, Deaths and Marriages [2017] NSWCATAD 306.
Evidence after 19 August 2020 points to the relationship continuing past this date and up to Damien's death; 1. The text messages in evidence before the Tribunal continue to show a regular, loving and affectionate exchanges between Ms Froud and Damien after the 19 August 2020 text message was sent up to 27 August 2020. The substance of those messages indicate that Ms Froud and Damien continued to see each other in person and continued to express love and affection for each other. 2. The work application completed by Damien on 27 August 2020, two days before his death, where he records Ms Froud as his emergency contact, describing her relationship with him as "misso" - which the Tribunal considers to be an abbreviation of "the missus". This description, made by Damien on a work form tends strongly to suggest that as close to two days before he died, Damien considered his relationship with Ms Froud to be continuing. 3. A text message from Ms Froud to Ms Watts (and tendered by Ms Barry) in which Ms Froud reports that Damien had called her at 2:18 AM on the day of his death. 4. Ms Froud's unchallenged evidence about the telephone conversation with Damien where he expresses his hurt feelings about Ms Barry's birthday gift. 5. Ms Froud's unchallenged evidence that she attended Damien's Central Coast property on the day of his death to spend the weekend with him. 6. Ms Froud, on finding Damien's body, alone took on the responsibility of notifying police and making the arrangements with the police, coroner and funeral director. Had she been a former partner, it is unlikely she would have taken on such a burden and even more unlikely that Ms Barry or Glenn Barry would have allowed her to continue had she tried; White v Williams [2019] NSWSC 437 at [35], [96]. There is no suggestion in any of the materials that Damien's brother Glenn Barry, who resides with his mother in NSW, was not available or capable of taking on these responsibilities at Ms Barry's direction. 7. Further text exchanges sent by Ms Froud after Damien's death which Ms Barry has relied upon show that Ms Froud retained Damien's personal effects at her home, some of which Ms Froud said she destroyed.
Having regard to the totality of the evidence before the Tribunal, I consider the 19 August 2020 text message did not have the effect of terminating the relationship. The evidence points to the relationship between Ms Froud and Damien continuing after this date and being in existence up until his death on 29 August 2020.
Accordingly, I find the duration of the relationship was about three years, commencing in June 2017 and continuing up to Damien's death on 29 August 2020.

[4]

The nature and extent of their common residence

In her statement, Ms Froud said that she and Damien retained separate residences throughout their relationship and they would typically stay together overnight at each other's respective residences.
The text of s 21C refers to the "extent of common residence" - there is clearly no requirement for full-time co-habitation though it is a highly relevant factor to be considered. Living together full-time is not required to meet the definition of "living together as a couple"; Hayes v Marquis [2008] NSWCA 10; White v Williams [2019] NSWSC 437 at [97], NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894 at [13]. There is also no requirement of uninterrupted co-habitation for a minimum period; Bennett v NSW Registrar of Births, Deaths and Marriages [2006] NSWADT 33 at [35].
Though it is common, and indeed typical, for de facto partners to live at the same residence on a full-time basis, there are many examples in the authorities where a de facto relationship has featured a pattern of regular staying-over at respective residences of each partner; Hayes v Marquis [2008] NSWCA 10; White v Williams [2019] NSWSC 437, NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894; Weston v Public Trustee (1986) 4 NSWLR 407; Jonah v White [2011] FamCA 221; (2011) 258 FLR 236. Hence the pattern of residence described by Ms Froud does not preclude a finding of a de facto relationship.
The essence of "living together" is the merging of lives so that they are, for all practical purposes, living together as a couple on a genuine, domestic basis which as Murphy J in Jonah & White (2011) 258 FLR 236, considering similar legislation on Queensland, expressed as the concept of "coupledom".
In Yesilhat v Calokerinos [2021] NSWCA 110, NSW Court of Appeal considered the question of whether a de facto relationship could exist in circumstances where the members of the alleged couple had never lived together. The facts of that case differ materially from the present however, in reviewing the authorities, the Court stated at [134]: Each of the three relevant categories of eligibility therefore involves "living together", a concept which involves mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis. It is not essential to a finding of a de facto relationship that there be unbroken common residence, and it is not incompatible with the existence of a de facto relationship, as defined, that a party spend some nights each week elsewhere than in the "matrimonial home". This is supported, in the case of a de facto relationship, by Interpretation Act, s 21C(3)(b), which in referring to "(b) the nature and extent of their common residence", acknowledges that its nature and extent may vary. Many authorities, some of which are referred to below, acknowledge that continuous full-time cohabitation is not essential, although the reason for the absences will be relevant: thus absence for work travel, or leisure, will rarely if ever be inconsistent with "living together", whereas absence because the person is maintaining another household might well be so, even if not invariably. However, some element of common residence is indispensable. As will appear, no authority holds that persons can "live together" or be members of the same household if they do not, to some extent, have a common residence.
As to the extent of their common residence, Ms Froud's evidence was that; 1. Depending on each other's schedules and whether her children were staying with their father, she and Damien would stay overnight either at her house or at his, 2. On the day on which she found his body, Ms Froud had gone to Damien's home on the Central Coast for the purpose of spending the weekend with him. 3. They would dine together each evening, Ms Froud would cook Damien's meals. 4. They each had keys to their respective residences and they each were able to come and go from their respective places of residence as they wished. 5. Ms Froud would wash Damien's clothes and maintain his residence while he was away working. 6. Damien would assist in the maintenance of Ms Froud's residence including gardening, furniture construction and would also assist with car repairs. 7. Damien kept belongings at Ms Froud's house including toiletries, clothes, shoes and sporting equipment. Indeed, Ms Froud's evidence on this point is corroborated by text messages sent by Ms Froud to Ms Watts which Ms Barry tendered. In those messages Ms Froud refers to burning and smashing Damien Barry's belongings which were at her home after his death.
The arrangement in the present case appears to have arisen from two requirements. 1. Firstly, Ms Froud's required a separate residence because she had previously been subjected to violence by an intimate partner from which she was not fully recovered. 2. Secondly, Ms Froud's teenage children had substantial emotional, physical and psychological needs which were best suited to an arrangement which did not require them to move from their home and established school and other networks. The needs of Ms Froud's children were obviously paramount to Ms Froud and, from the correspondence before the Tribunal, to Damien also. The nature and extent of those needs was corroborated by the statements of Ms Watts and Mr Watts on which Ms Barry relied.
Ms Barry's submissions place great emphasis on the fact that, about six weeks before his death, Damien Barry had rented a property on the Central Coast - placing him at greater distance from Ms Froud's home in Sydney than previously. Ms Froud does not explain why Damien Barry chose to relocate from Sydney to the Central Coast at this time.
I am unable to place great weight on the statements of Ms Watts and Mr Watts concerning Damien's decision to move. In their statements, Ms Watts and Mr Watts assert that Damien moved to the Central Coast primarily to get away from Ms Froud. Their statements fail to properly justify the basis of the assertions they make, the only matter of clarity is their marked dislike of Ms Froud. Further, the statements of Ms Watts and Mr Watts are at odds with the following matters, noting that each factor identified in s 21 may overlap or give colour to the other factors: 1. Damien nominated Ms Froud as his emergency contact on his rental application form, and in doing so stated Ms Froud was his "partner"; 2. Damien nominated Ms Froud as his emergency contact, stating her relationship with him was his "misso" on a form he completed and sent to an employment agency two days' before his death; 3. Damien and Ms Watts remains in contact by text messages and those messages suggest that they continued to stay over-night with each other at their respective residences; and 4. According, to Ms Watts' own statement, Damien continued to remain in contact with Ms Froud once he had moved and, on at least one occasion to Ms Watts' knowledge, he travelled to Sydney to assist Ms Froud her in the course of a family crisis.
Ms Barry submits that Damien simply used Ms Froud's address as a post box over the years and that when he was not working on ships he sometimes slept in his car. While Ms Froud also states that Damien was homeless at times and when they first met, he was sleeping in his car however the evidence before the Tribunal suggests that Damien was almost always living in rental accommodation proximate to Ms Froud's residence.
The bank records contained in the s 58 Bundle show Damien spent money on rent from time to time and that he paid a small amount to rent a garage space. His bank records also show spending on hardware and other items in the same suburb and surrounds as Ms Froud's residence and the amount and frequency of his expenditure suggests that he was involved in the maintenance of her residence.
The emails between Ms Froud and Damien dated between 22 and 25 January 2019 tendered by Ms Barry, show the intention to reside in a single residence was under active consideration between Ms Froud and Damien at that time. The content of these emails suggests that Ms Froud and Damien were committed to a relationship each other but that there were perceived disadvantages in moving into the one residence including the loss of Ms Froud's Centrelink benefits and the disruption to the lives of her children. 1. Ms Barry submits that this is evidences a lack of intention to ever share a common residence - and that is certainly one interpretation. 2. Another interpretation is that these emails show an intention to cohabit in the future and not at that time which would tend to suggest that, at least in late January 2019 Ms Froud and Damien were not in a de facto relationship but were planning to enter such a relationship at time in the future. 3. A further interpretation of these emails is that they evidence a genuine commitment by both Ms Froud and Damien to an on-going and shared future the emails forming part of a serious consideration about the specific requirements of all those who would be impacted by the establishment of a single residence, including Damien's tastes, Ms Froud's finances and Ms Froud's children.
In my respectful opinion and having regard to the context of the communications, including that Ms Froud experienced a miscarriage of pregnancy in the weeks following this exchange, I consider this third interpretation more likely. In any event, I do not place great weight on this material since a de facto relationship requires a continual and on-going intention and these emails were dated more than six months prior to Damien's death.
Aside from the fact that he in fact moved and the statements of Ms and Mr Watts, there is no other evidence to suggest that the move to the Central Coast was predicated on, or designed to cause, the end of his relationship with Ms Froud. Indeed, as I have found above, Damien nominated Ms Froud as his emergency contact and described her as his "partner" on the rental application for that property and he remained in seemingly constant contact with her. I find, therefore that though he had moved from Sydney, the relationship between Ms Froud and Damien continued without interruption.
Having regard to all the material above, I accept Ms Froud's statement that she and Damien Barry would spend nights together at each other's residences, that they typically were living together across two residences accommodating their work commitments and the particular needs of Ms Froud's children and that they resided in this way throughout their relationship.
Accordingly, I find that they resided at a common residence to a large extent from the period after January 2019 until his death on 29 August 2020.

[8]

Transfer of money between Damien and Ms Froud

The s 58 Bundle includes bank statements for an account in Damien's name showing frequent transactions between Ms Froud and Damien between 1 October 2018 and 31 March 2020. There is no suggestion that Damien had any other bank accounts and from a review of those bank statements in the s 58 Bundle it appears this was the account into which Damien received salary and wages and from which he met all his expenses.
The bank statements included in the s 58 Bundle show at least 45 transfers between Ms Froud and Damien from November 2018 to 31 March 2020. Commonly, the transfers are from Damien to Ms Froud - though there are also several instances where Ms Froud transfers money to Damien. There is no indication that any of those transfers from Ms Froud or from Damien are in the nature of repayments of earlier advances made between the pair.
Most transfers made by Damien to Ms Froud are narrated with an expression of love and affection. For example, transfers of $150 and $240 made on 19 March and 20 March 2020 respectively both bear the narration "love u farty party". These narrations are consistent with the pet names used by Damien and Ms Froud in their text messages.
In her statement, Ms Froud provides a summary table of all the transactions which she says occurred between she and Damien however her summary extends to cover the period for which no bank statement is supplied. The material provided by the Registrar (and therefore to the Tribunal) is missing statement 51 which covers the period from March to Damien's death. Though Ms Barry is the administrator of her son's estate, she has not tendered a copy of bank statement 51. In an email to Ms Froud's solicitor in April 2021, Ms Barry expressly states she has Damien's bank statements. Ms Barry nonetheless makes submissions concerning that period. I have therefore concluded that Ms Barry accepts of the accuracy of Ms Froud's summary table as a correct record of the size and scale of the money transfers between them over the period of dates set out in the table.
Ms Barry contends the total amount transferred by Damien to Ms Found was a trivial sum of only $3,616.40. This figure is incorrect. 1. According to the information on the summary table, the total amount paid to Ms Froud by Damien over the period between 18 November 2019 and 11 August 2020 was about $10,031.40. 2. The total amount paid to Damien by Ms Froud was $2,695. 3. The total transfer sum identified by Ms Barry significantly understates the amounts shown as paid to Ms Froud in Damien's the bank account statements. Even accepting her submission that $2,850 paid by Damien to Ms Froud apparently to meet a veterinary bill was a gift (and there is no basis for any finding about that payment) and then, additionally, reducing the sum by any amounts transferred to Damien by Ms Froud (again, there is no suggestion that these amounts are repayments) Ms Barry's understatement remains significant.
More important than the arithmetic error is the fact that Ms Barry's submissions fail to engage with the regularity of the transfers and the narrations which accompany them. The regularity and narrations are, in my respectful opinion, of rather more significance to the matters to be determined on this application than the total amount transferred.
In that regard, the transfers were made on a regular basis over the entire period of their relationship and at least up to 11 August 2020. In circumstances where neither Damien nor Ms Froud could be described as being well-off financially, I find the frequency over a period of years to be a significant indication that there was a moderate degree of financial dependence and interdependence between them and that Damien in particular provided financial support to Ms Froud up to a date close to his death.
The narrations accompanying the transfers are, as noted above, typically intimate or affectionate connoting a level of intimacy which again tends to confirm that depth of the relationship. Significantly, the narrations by Damien and Ms Froud do not indicate that the transfers are in the nature of loans or repayments.

[9]

Payment of Expenses

Ms Froud's statement also asserts that Damien was always happy to provide her with money for a range of expenses including groceries, petrol, clothing for herself and her children, school items for her children and "anything else I required". She further states that Damien was generous with any additional cash he had over and that he often purchased treats and gifts for her children and provided them with spending money. None of this was the subject of challenge by Ms Barry and the Tribunal accepts Ms Froud's evidence about this aspect of financial support and interdependence.
As to further evidence of financial inter-dependence, Ms Watts and Mr Watts both give almost identical evidence about the trip Damien and Ms Froud took to the Central West of NSW in the month before Damien's death. In their evidence, noting the difficulties I have set out above, they both assert that Ms Froud had pressured Damien to go on holidays on the basis that she would pay for the trip. Both Ms Watts and Mr Watts then report that Damien in fact paid for everything on that holiday - once again demonstrating that the finances of Ms Froud and Damien remained closely intertwined in the weeks leading up to Damien's death.
A further aspect of the evidence which may suggest Damien's finances were closely connected with Ms Froud and comes from one of the text messages between Ms Watts and Ms Froud which was tendered by Ms Barry. In that message, Ms Froud complains to Ms Watts that she has to pay out a credit card debt accrued by Damien which, at the time of his death was a little over $5,000. Though tendered by her, Ms Barry does not account for this statement and gives no evidence that she, as the administrator of the estate, sought to repay Ms Froud as Ms Barry might be expected to do had Ms Froud not been Damien's de facto partner at the time of his death.
Having regard to the above evidence, I find that there was a moderate degree of financial interdependence between Ms Froud and Damien up to and including the time of his death.

[12]

The ownership, use and acquisition of property

Damien and Ms Froud did not share bank accounts and neither owned real property. Ms Froud's receipt of Damien's superannuation death benefits is an indication (albeit only a moderate one) of an intention on Damien's part to give Ms Froud ownership of his most significant asset. Had there been evidence of a binding nomination this would have resonated significantly in respect of this indicator of the existence of a de facto relationship but the evidence does not go as high as this.
In her statement, Ms Froud states that Damien purchased for her a new laptop computer, jewellery, kitchen knives, bedding and sunglasses. She further deposes that she and Damien purchased a new bed for her residence specifically to accommodate Damien. None of these items are particularly consistent with joint use or ownership of personal property, they are in my respectful opinion, neutral in terms of determining whether a de facto or some less significant relationship existed.
On Ms Barry's evidence, Ms Froud transferred into her own name a Nissan Patrol motor vehicle, a boat and a boat trailer after Damien had died. Neither party gave any account about the transfer of these assets nor how they were purchased or intended to be owned.
I note the consent orders in the Supreme Court, provide that Ms Froud was to retain Damien's personal effects including the balance of his bank account and any of the funds from the sale of the motor vehicle. In circumstances where Ms Barry's claim to be appointed as administrator of Damien's estate and in circumstances where she relies heavily on the consent orders to assert that Ms Froud was never Damien's de facto partner the absence of an explanation about why she agreed to resolve the Supreme Court proceedings in a way indicates an acceptance, on Ms Barry's part, of Ms Froud's ownership interest in these items.
Ms Froud's evidence is to the effect that she and Damien used each other's residences and personal property as though they had common control over that material. Her actions in transferring items into her own name and retaining ownership of those items in resolving the Supreme Court litigation suggest that there was a significant degree of ownership of personal property. Aside from his superannuation benefits, Damien's assets and possessions at the time of his death were minimal. Had he been a person of wealth and means, the transfer of a car, boat and trailer may have been had less significance that the present case. However, these were items which comprises a substantial portion of his possessions. Even taking account of the pressure of litigation, the consent orders evidence that Ms Barry was content to agree to Ms Froud retaining those items and provides no proper explanation about the circumstances of her consent to those orders. Consequently, I find that Damien and Ms Froud did have a substantial degree of common ownership of assets between them.

[14]

The care and support of children

As noted above, Damien died without having children of his own. Ms Froud gives evidence that she experienced two miscarriages of pregnancy in the course of their relationship and that Damien supported her throughout each event. Despite having no children of his own it is clear that Damien was involved in the lives of Ms Froud's children to a moderate degree.
It is fair to say, from the evidence, that Damien was not a person experienced with the parenting and support of teenage children and nor did he appear, on the evidence, to have the temperament which is sometimes required for providing care and support to children at that stage of development - let alone children who may have specific needs. His attempts, therefore, to be involved with Ms Froud's children are all the remarkable for this.
There is an abundance of photographic material showing Damien on holidays and at leisure (in particular fishing) with Ms Froud's children and Ms Froud's statement suggests that he provided her children with emotional and financial support.
Mr Watts and Mr Rounce (though I can place very little weight on a draft, unsigned affidavit) recall the efforts Damien took in trying to interact with Ms Froud's teenage children. While those efforts were not very successful, the statements show that Damien made real efforts nonetheless and the evidence speaks to an intention, on Damien's account, to be part of the lives of Ms Froud's children and to be involved in their upbringing.
Ms Froud's statement is to the effect that the decision to remain in her home was partly determined by the agreement, as between Damien and Ms Froud, that her children's interests were best served by not moving and being able to remain in their current schools.
Ms Watts, whose opinion of Ms Froud was relentlessly negative, nonetheless recounts a critical incident involving one of Ms Froud's children where Damien travelled down from the Central Coast to assist Ms Froud and her child. Had no relationship existed or had there been no willingness to provide care or support to Ms Froud and her child, I consider it very unlikely that Damien would have travelled down to Sydney to provide support as he in fact did.
The subject matter of the text message sent by Ms Froud to Damien on 19 August 2020 is principally concerned with matters concerning the care and support of her children and of Damien's interactions with them. While Damien's interactions with Ms Froud's children were occasionally volatile, contentious and often unsuccessful, the text message when viewed in the context of the other evidence, shows again clear attempts made by Damien to be an active part of the care of Ms Froud's children.
I note Ms Froud's evidence, also uncontradicted, was that Damien regularly gave her children gifts, sweets and pocket money. It is possible that a person who, for example, is a "boyfriend" or fiancée might provide gifts such as these, and without more I would not be able to consider this material as being of assistance to any determination about the care and support of children. However, having regard to the other evidence concerning his interactions with Ms Froud's children I am inclined to consider Damien's gift and money-giving to be the actions of considerate adult attempting to make a connection with the teenage children of his partner rather than a more casual relationship and that the provision of monetary gifts was a direct method of financial support to them.
Having regard to the matters above, I have concluded that Damien was involved in the care and support of Ms Froud's children and that his involvement continued up to the time of his death though due to the age and needs of the children, his own temperament, and his inexperience in parenting his involvement was not akin to that of a close parental figure.

[16]

The reputation and public aspects of the relationship.

Each of the witness statements tendered by Ms Barry show that Damien's relationship with Ms Froud was public and acknowledged. This was not a secret relationship. The question in this case is the extent and degree. Ms Barry contends that Damien and Ms Froud were "boyfriend and girlfriend" and not a de facto couple.
Ms Barry does not tender any evidence to contradict Ms Froud's statement that that Ms Barry entertained Ms Froud and Damien in her home together shortly before his death, nor does she contradict Ms Froud's statement that Ms Barry attended Ms Froud's home to have dinner with Damien, Ms Froud and Ms Froud's children.
While going to dinner or afternoon tea at each other's houses is not a clear indication of the extent of a relationship, it does indicate that Ms Barry had also acknowledged Ms Froud to be in a relationship of some kind with her son.
The social media posts (excluding those of Damien's funeral, memorial and tributes) were posted on social media sites from December 2017 up to the end of July 2020 (weeks before Damien's death) and show numerous photographs of Ms Froud and Damien together in poses where their arms are around each other or where they standing in a way so as to be touching each other's bodies, suggesting a couple. The photographs are taken at various times including major holidays and when at home or away on holidays over the period of about two and half years. In some instances, Ms Froud's children are depicted in the photographs with their mother and Damien. The stance taken by all in those photos suggests a great deal of physical closeness. Again, the social media and photographic material clearly show that the relationship was publicly known and acknowledged by Damien and Ms Froud's friends and family. I do not accept Ms Barry's submission that the amount of social media posts and photographs is not significant given the extent of the relationship asserted by Ms Froud - there is an abundance of this type of material before the Tribunal. Despite this abundance, while all of the social media and photographic material provided suggests that Ms Froud and Damien acted in a manner consistent with being a couple, absent other evidence, this material would not have a great deal of weight in determining whether they were in a de facto relationship.
Ms Froud gives uncontradicted evidence that Damien was her emotional support when her father died and she provides a copy of the order of service of her father's funeral where Damien is listed as a pallbearer. Again, this evidence is not completely determinative but shows that the relationship was close and acknowledged by Ms Froud's family.
Damien's actions with regard to the public aspects of the relationship are significant. When Ms Froud experienced a miscarriage of pregnancy in March 2019, Damien told his employer expressly that he required leave in order to take care of his "girlfriend". His disclosure to his employer about the miscarriage shows that he regarded and was willing to express to his employer, the existence of the relationship. He subsequently completed forms where he described her as his partner or "misso".
Likewise, having regard to each of his employment, medical and rental forms where Ms Froud is nominated as Damien's emergency contact and where she is described in 2017 as his girlfriend however by July and August 2020 she is described by Damien as his partner or "misso" are also significant. Most significant to the current application is that fact that, in the form he completed just two days' before his death, Damien nominated Ms Froud as his emergency contact and described her relationship to him as "misso" which, as above, I have interpreted as being an abbreviation of "missus" - connoting a permanent and committed relationship.
It is clear from the witness statements tendered by Ms Barry is that Damien and Ms Froud were frequently seen by others in each other's company. Ms Watts, Mr Watts and Mr Rounce's unsigned statement all describe instances where Damien and Michelle were present at various events though they also try to minimise the number of times they saw the pair together. The instances where these witnesses admit Damien and Michelle were together report they couple having fights and arguments in public which may have made those events more memorable than an uneventful evening out. The existence of such volatility rather reinforces the existence of a relationship, albeit a turbulent one.

Parties

Applicant/Plaintiff:

Barry

Respondent/Defendant:

Registrar of Births, Deaths and Marriages

Legislation Cited (10)

Acts Interpretation Act 1907(Cth)

Births Deaths and Marriages Registration Act 1995(NSW)

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Evidence Act 1995(NSW)

Family Law Act 1975(Cth)

Interpretation Act 1987(NSW)

Property (Relationships) Act 1984(NSW)

Superannuation Industry (Supervision) Act 1993(Cth)

Superannuation Industry (Supervision) Regulations 1994(Cth)

Cases Cited (23)

Jurisdiction, Parties, Onus

The Births Deaths and Marriages Registration Act 1995 (NSW), Part 8, requires the Registrar to maintain a register of all registrable events - including deaths (the Register).
Pursuant to Division 2 of Part 8, the Registrar is empowered to, among other things, conduct an inquiry to find out whether particulars of a specific registrable event have been correctly recorded on the Register.
Various particulars are required to be provided on the registration of a death including, whether immediately before death, the deceased was married, divorced, widowed, in a registered relationship or an interstate registered relationship or in a de facto relationship or had never married; Births, Deaths and Marriages Registration Regulation 2017, r 16(h).
The Registrar may correct the Register to reflect a finding arising from an inquiry under Division 2 or bring an entry into conformity with the most reliable information available to the Registrar of the registrable event pursuant to Births Deaths and Marriages Registration Act, s 45. Correction of the Register is undertaken by adding or cancelling an entry or adding, altering or deleting particulars contained in an entry.
A person who is dissatisfied with a decision of the Registrar made in the exercise of a function under the Births Deaths and Marriages Registration Act may apply to this Tribunal for administrative review of that decision; Births Deaths and Marriages Registration Act, s 56(1) and Administrative Decisions Review Act 1997 (NSW), s 9.
In determining an application such as this, the Tribunal is to decide the correct and preferrable decision having regard to the material before it, including any relevant factual material and any applicable law; Administrative Decisions Review Act, s 63.
As the parties point out in their written submissions, these proceedings are not adversarial and hence neither party bears the burden or onus of proof; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]). The standard of proof is the civil standard, that is, the balance of probabilities and in particular the standards of proof suggested in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12].

De facto Relationship

The Interpretation Act, s 21C provides: (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) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of 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.
As may be appreciated from the text of s 21C, the factors set out with regard to the definition of a "relationship as a couple" are non-exclusive and non-exhaustive and no particular finding in relation to any of the factors is determinative; Thompson v The Public Trustee of NSW [2010] NSWSC 1137 at [78]; Asquith v Registrar of Births Deaths and Marriages [2015] NSWCATAD 8.
Similar definitions are found in a number of other pieces of legislation in NSW and in other Australian jurisdictions, in particular the Evidence Act 1995 (NSW), Dictionary Part 2, cl 11, the Family Law Act 1975 (Cth), s 4AA, the Acts Interpretation Act 1907 (Cth), s 2F and the Property (Relationships) Act 1984 (NSW), s 4.
In the recent decision of Fairbairn v Radecki [2022] HCA 18 at [28], the High Court in considering the definition in the Family Law Act and stated that: … Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate. [Footnote omitted]