Bennett v Registrar, NSW Births Deaths & Marriages & Anor [2005] NSWSC 653 | Case summary

13 Section 22 of the Sex Discrimination Act 1984 (Cth) provides: "Goods, services and facilities (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person. (2) This section binds the Crown in right of a State." 14 Section 45(1)(b) of the Act provides that the Registrar may correct the Register. That section provides: "45 Correction of Register (1) The Registrar may correct the Register: (a) to reflect a finding made on inquiry under Division 2, or (b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. (2) The Registrar must, if required by a court, correct the Register. (3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry." 15 Section 4(1) of the Property Relationships Act 1984 provides: "4 De-facto relationships (1) For the purposes of this Act, a de-facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de-facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (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. (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de-facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de-facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 16 Section 56 of the Act provides that a person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Administrative Decisions Tribunal for a review of the decision. 17 Pursuant to section 63 of the Administrative Decisions Tribunal Act 1997, in determining an application for a review of a reviewable decision the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all of the functions that are conferred or imposed on the Registrar. 18 In order to determine the application it is necessary that I form an opinion in regard to the nature of the relationship, if any, between Ms Schofield and the Deceased. The Evidence 19 The Applicant has provided an enormous volume of material for consideration by the Tribunal. The vast majority of this material was filed prior to the hearing of the matter however I note that further material has been filed since that date. I have not taken into account any of the material lodged after the date of hearing. The Registrar has filed a volume of material as required by section 58 of the Administrative Decisions Tribunal Act 1997. This material contains documentation that was the basis of the decision under review, including a number of statutory declarations. Ms Schofield filed an affidavit with a number of annexures, in support of her contention that she was in a de-facto relationship with the Deceased. The Applicant and the Registrar have filed written submissions. Ms Schofield adopted the Registrar's submissions. 20 In addition to the written evidence, the Applicant gave oral evidence in support of his contention that the Deceased's death certificate should be amended to remove the reference to Ms Schofield as being the Deceased's de-facto spouse. Mr David Bennett and Mr Michael Bennett attended the hearing and were subjected to cross-examination. Ms Schofield was also cross-examined. The relationship between Ms Schofield and the Deceased 21 The Applicant has provided a detailed account of the Deceased's life as he knew it and asserts that if the Deceased had been in a de-facto relationship with Ms Schofield, that relationship had ended long before the time of the Deceased's death. It is not in dispute that the Deceased had been married to the Applicant's mother from February 1964. They separated in June or July 1975 and were divorced in the late 1970s. Ms Schofield's evidence is that she met the Deceased when she was 28 years of age i.e. in about 1980. The statutory declaration of Susan Newcombe notes that the relationship was in existence since 1979. The statutory declaration of Paula Edlinger also dates the commencement of the relationship in 1979. 22 If a de-facto relationship existed between the Deceased and Ms Schofield, it is uncertain when that relationship commenced. Ms Schofield's evidence is that she was in a relationship with the Deceased from July 1980 until the date of his death on 26 April 2003. She says that they were living under the same roof from May 1997 but that they commenced a de-facto relationship in about 1981. 23 In a Superannuation Fund Application for invalidity benefit dated 14 April 1999 the Deceased indicated that he and Ms Schofield commenced a de-facto relationship as at 5 August 1981. 24 It seems that the Deceased became ill in 1997 and took leave of absence from the Police Force from May of that year. In August 1997 he was diagnosed as having melanoma. In September 1997 he had malignant melanoma on the right heel excised. The Deceased was discharged from the Police Service in April 1999. 25 In July 1999, the Deceased and Ms Schofield purchased a property at Kiama Downs as tenants in common in equal shares. Ms Schofield stated that they each contributed $15,000 as a deposit on the property but that she contributed a further $103,000 on the basis that the Deceased was to make the mortgage payments. On legal advice, the property was purchased as Tenants in Common rather than Joint Tenants to allow them to each ultimately provide for the children from their marriages. 26 The evidence suggests that the Deceased and Ms Schofield remained together in the property until mid 2002. Ms Schofield stated that they separate for a short time in 2001 but that they were soon reconciled. She further stated that the Deceased's personality and behaviour began to change dramatically in 2002 and that it became very difficult to live with him. In September 2002 she went to stay with her sister. The Deceased and Ms Schofield remained separated until December 2002. However, Ms Schofield stated that during the time that they lived apart they continued to have constant contact. In December 2002 they again lived together at the Kiama Downs property. In late December 2002 the Deceased was diagnosed as suffering from brain tumour. He underwent radiotherapy treatment in January 2003. Ms Schofield says that she cared for the Deceased from that time until his death on 26 April 2003. 27 Ms Schofield provided evidence in regard to the nature of her relationship with the Deceased. She says that they had sexual relationship throughout their 23 years together; they shared a joint bank account with the Police Credit union, as well as our own separate bank accounts; the Deceased nominated her as his spouse and beneficiary with the Police Superannuation Fund; they had a mutual commitment to a shared life; they cared for and supported their children both financially when needed and emotionally; and they shared household duties including cooking, cleaning and maintenance of the homes they shared. She says that their relationship was respected by their children as well as their extended families and by their many friends. She provided a number of Statutory Declarations that support this contention. 28 To the extent that it was possible for them to do so, the evidence given by Mr David Bennett and Mr Michael Bennett also supports Ms Schofield's contentions. 29 In contrast, the Applicant asserts that there was no de-facto relationship between Ms Schofield and the Deceased. He points to the Deceased's rural postings as a police officer during the period 1980 to 1997 and Ms Schofield's separate residence as supporting this proposition. He refers to the Deceased's hobbies that Ms Schofield did not share, family gatherings that Ms Schofield did not attend and various aspects of the Deceased's life which he says indicate that Ms Schofield and the Deceased lead lives that were inconsistent with the existence of a de-facto relationship between them. He referred to a number of documents where he says that one would expect the existence of a de-facto relationship to be disclosed if in fact it did exist and where neither Ms Schofield nor the Deceased had identified the existence of such a relationship. 30 The Applicant asserts that the Deceased did not disclose on his tax returns that he was in a de-facto relationship with Ms Schofield. The Applicant further relies on the tax returns of the Deceased for the financial years 1996, 1997 and 1998 to substantiate his claim that the Deceased was not in a de-facto relationship with Ms Schofield. The tax return for the 2003 financial year states that the Deceased had a spouse from 01/07/2002 to 26/04/2003, these dates relevantly being from the commencement of the 2003 financial year to the Deceased's death. However, these returns were based on information supplied by Ms Schofield. 31 The Applicant further asserts that the documents which Ms Schofield provided as evidence can be proved irrelevant and false. He says that a defacto relationship requires consistency in duration and that those in a relationship are only formally committed to each other once they move in together. Ms Schofield and the Deceased had not done this up until late 1999. The Applicant asserts that by 1999 the Deceased was suffering from physical and mental conditions that he could not control. He was vulnerable and needed help. He says that the Deceased suffered from menta1 illness and was granted retirement because of this and his cancer. He was under psychiatric care and medicated. The Applicant says that he doubts that the Deceased was even aware of what documents he had signed or what details were included in those documents. He would have signed wherever a signature was needed. 32 The Applicant says that if the Deceased had lived with Ms Schofield in 1997, then Ms Schofield's mortgage payments, rate notices, electricity bills, water rates, phone bills, should have the Deceased listed as a partner to those expenses. He says that Ms Schofield did not apply to have herself included on the Deceased's Medicare card until January 2003 and that if a de-facto relationship had existed earlier than that time she would not have waited to do this. He contends that these omissions suggest that Ms Schofield and the Deceased were not living together as a couple. 33 The Applicant says that Ms Schofield had known about the Deceased's terminal illness since 1997. Everyone who knew the Deceased knew he had a malignant melanoma. He further asserts that when Ms Schofield found out that the Deceased was admitted to hospital, she took control over all of his affairs. 34 The Applicant points to numerous other items, which he says support his contention that there was no de-facto relationship between the Deceased and Ms Schofield. In short, the Applicant asserts that there was conspiracy that was apparently designed to allow Ms Schofield to be supported financially by the Deceased's superannuation. Findings 35 As noted above, the Act does not define the term "de-facto relationship". I have been referred to the definition contained in the Property Relationships Act for some guidance in how the term may be defined. In determining whether two persons are in a de-facto relationship for the purposes of that Act, all the circumstances of the relationship are to be taken into account. Significantly, there is no requirement for the parties to a de-facto relationship to have cohabited on an uninterrupted basis for a minimum period of time. In my view, a similar approach should be taken in determining whether or not a de-facto relationship exists for the purposes of the Act. 36 The Registrar has referred to a number of authorities in which the factors that allow for a relationship to be characterised as a de-facto relationship have been judicially considered. I agree that these authorities are relevant to this matter.In Wheatley v Wheatley [1950] 1 KB 39, King CJ held at 43 that: "To cohabit as husband and wife means no more than to live together as husband and wife, the wife rendering wifely services to her husband, and her husband rendering husband-like services to his wife. They must live together not merely as two people living in one house, but as husband and wife". 37 Jacobs J in Re Fagan Deceased (1980) 23 SASR 454, considering section 11 of the Family Relationships Act 1975 (SA), a provision defining a "putative spouse", referred to the above passage. At 464 Jacobs J expressed the view that the expression "cohabit as husband and wife": "... does not necessarily imply that they are always living together under the same roof, and there may be states of cohabitation where they see as much of each other as they can, and yet are not separated because there has not been any real suspension of their ordinary conjugal relation. A man may be cohabiting with his wife even if he is away on a visit or on business because the conjugal relationship is not determined in any shape or form Kay v Kay [1904] P 383 at 389. In my judgment the words "as husband and wife" in s 11 do no more than give this secondary meaning to the word "cohabit" the primary meaning of which is simply "to dwell with, or live together". Counsel opposing the application invited me to treat the words "cohabit as husband and wife de-facto" as importing a narrower and more restrictive view of the concept of putative spouse, a view which would require some, if not all, of the criteria of a common law marriage, including a holding out of the de-facto spouse as a wife or a husband as the case may be, and at least a monogamous relationship in the sense of cohabitation with the putative spouse to the exclusion of all others. On the literal meaning of the language, I can find no warrant for any such limitation. In the first place, the legislation mentioned earlier in this judgment, which imports the concept of a putative spouse, clearly contemplates the co-existence of a putative spouse and a lawful spouse; but apart from that, the section has nothing to say about marriage in its accepted sense as "the voluntary union for life of one man and one woman to the exclusion of all others": Hyde v Hyde and Woodmansee (1866) 1 LR P & D 110 at 130 and it would need much clearer language than Parliament has used to support the proposition for which counsel contended, that "only a monogamous relationship and a holding-out can convert a mistress into a putative spouse". 38 In Weston v Public Trustee (1986) 4 NSWLR 407, Young CJ in Equity, held that it was not fatal to the plaintiff's case that she and her purported de-facto spouse did not cohabit together. In that case, the evidence was that the plaintiff was divorced in 1944, that she had gone out casually with the deceased in the 1940s and from the 1950s it had been customary for him to stay the night with her in her bed and in her flat on two to three nights a week and virtually all weekends. This arrangement continued for some thirty years. The plaintiff's evidence was that a typical week would mean that the deceased would stay the weekend with her at Homebush and then, after he retired, he would go back to his flat at Bondi for two to three days through the week. Young CJ stated: "I thought when 1 first considered this case it was a borderline case and some of the factors that made me think that it may be on the defendant's side of the line were that the parties had maintained two residences, they seemed to be financially independent, she paid the expenses for her unit and he for his flat. She had only met one of his brothers, though he had two brothers and a sister, and that brother only once, though she did know his sister before the sister died. Also the plaintiff was known by three names, Miss Burnett at work, Mrs Weston at church and Mrs Campbell on holidays, though this is perhaps over-stating the position. Although these are some indications that one goes the defendant's way, as has been pointed out in many of the social security cases it is wrong to dwell on a particular factor or factors and one must look at the whole picture bearing in mind the circumstances in which the parties were living. When both parties had a steady job and were able to support themselves, one does not look for quite the same financial support of one for the other as one does with people on the poverty line who do need to support each other financially much more. With people such as the plaintiff and the deceased, one looks far more to emotional support and commitment to each other. Her evidence shows that their relationship lasted for thirty years. The plaintiff says that it was an exclusive relationship and there is no material to indicate otherwise. The evidence shows that when one was sick, the other one would look after the sick one. The evidence shows that generally speaking, though both the plaintiff and the deceased valued their independence and the deceased to a great degree did what he liked, he would listen to what the plaintiff said as to her wishes and generally fall in with them. In all the circumstances it seems to me that the plaintiff does qualify as a person who was living with the deceased at the date of his death on a bona fide domestic basis as his wife and hence is an eligible person to be considered under the Family Provision Act 1982." 39 In Blyth v Spencer; Spencer v Neville [2005] NSWSC 653, the two proceedings were heard together before Macready AJ. The first proceedings concerned an application brought by Mrs Blyth under section 66G of the Conveyancing Act for orders for sale of a property bequeathed equally to her, her brother and Mr Spencer, a long partner of the deceased Betty Kathleen Neville. 40 In respect of the second proceedings, the application was brought under the Family Provision Act by Mr Spencer against Mrs Blyth's husband and brother, who were the executors of the deceased's will. Relevantly in that matter, in 1972 Mr Spencer moved and lived at the deceased's home. In January 1975 there were various statements made to the Department of Social Security by the deceased that she received an income from a boarder and that Mr Spencer was a boarder and not a de-facto partner. The deceased bought a property ("the Lindsay St property") in 1976 and both she and Mr Spencer moved into it. Over the years from 1976 through to 1992 there were many statements completed by the deceased given to the Department of Social Security stating that Mr Spencer was simply a lodger and not a de-facto partner. In 1994 Mr Spencer moved out of the Lindsay St property and went to live with his family, namely, his children. On this happening the deceased told the Department that Mr Spencer had left Lindsay St and was no longer a lodger. In that year Mr Spencer retired. He remained away but returned in 1996 and moved back to Lindsay St. 41 Macready AJ held that the relationship was from 1972 to 1994 and 1996 until the date of death and there was a common residence for the whole of the relevant period. His Honour also accepted Mr Spencer's evidence on this aspect that there was a sexual relationship between them. His Honour noted that each of the parties had a single pension and there was not a substantial amount of dependence. On this issue, his Honour noted that: "This question of whether they had separate pensions in the various declarations which were given to the Department of Social Security obviously is a matter which might indicate not interdependence and also tell against any de-facto relationship. However, sad though it may be, this is very common and seems to be very commonplace in the Australian community. Many many people think it appropriate to mislead the Department and make false claims and that is so well known one rarely places little reliance upon such statements." 42 His Honour noted that there was very little evidence, in fact none, on the reputation and public aspects of the relationship. However, having regard to the fact that there was a sexual relationship, in fact, although they lived a quiet life together, his Honour was satisfied that they were de-facto partners. 43 In Dunk v Public Trustee [2003] NSWSC 37, unreported, Supreme Court, (Master McLaughlin), 11 February 2003, the Plaintiff asserted that she was the de-facto wife of the deceased at the time of his death, an assertion disputed by the defendant. The defendant disputed the existence of the alleged de-facto relationship between the plaintiff and the deceased and relied upon the fact that the parties did not occupy the same residence for seven days a week. Master McLaughlin on this issue stated: "Although relevant to the question of whether or not the Plaintiff was the de-facto spouse of the Deceased at the time of his death, the fact (which 1 accept) that the Deceased was in the habit of spending several nights each week at the residence of the Plaintiff is not of itself conclusive of whether or not such a de-facto relationship existed between the Plaintiff and the Deceased. As will later appear, the nature and extent of common residence of the Plaintiff and the Deceased is only one of a number of matters which may be relevant in determining whether a de-facto relationship existed between them." 44 I note that I accept Ms Schofield's evidence as a truthful account of her relationship with the Deceased. In the present matter, Ms Schofield states that her relationship with the Deceased lasted 23 years. For the greater part of that period they maintained individual residences and for significant periods, resided significant distances from each other. While the authorities referred to above suggest that the relationship could be characterised as being de-facto during the period to 1997 notwithstanding those facts, such characterisation would be difficult in some of that period. 45 In the circumstances it is not necessary to form a view on that point as I accept that the evidence supports the contention that the Deceased and Ms Schofield cohabited from 1997 onwards. The Registrar submits that it is not necessary to determine whether the relationship between the Deceased and Ms Schofield is properly characterised as being de-facto during the period to 1997. I agree with that submission. 46 I do not agree with the Applicant's contention that the failure by the Deceased and Ms Schofield to evidence their relationship in tax returns and other documentation precludes the existence of a de-facto relationship. Despite the attempts by the Applicant to discredit the witnesses and the documentation presented in support of the contention that a de-facto relationship existed, it is my view that the overwhelming evidence supports the existence of a de-facto relationship by the Deceased and Ms Schofield at least for the majority of the period from 1999 to the date of the Deceased's death. I am satisfied that the relationship can be categorised in that way at the date of the Deceased's death. 47 Having formed that view, I am satisfied that the decision taken by the Registrar is the correct and preferable decision and accordingly it should be affirmed. Order The decision under review is affirmed.

Bennett v Registrar, NSW Births Deaths & Marriages & Anor

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