Dion v Rieser

Supreme Court of NSW|2009-10-30|Before: Bryson AJ

DECISION : (1) Declare that the plaintiff Margaret Anne Dion was the de facto spouse of the late Richard Davis Rieser the intestate at the time of his death and is entitled to the real and personal estate of the intestate in accordance with Section 61B(1) and (2) of the Probate and Administration Act 1898. (2) Reserve costs.

CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - Intestacy - De facto spouse - Decision that plaintiff was de facto spouse of intestate - Review of evidence of events in relationship from February 1981 until death of intestate in February 2007 - Plaintiff and deceased had many journeys separately and apart and did not stay in one place for more than a few months at a time - Houses in New South Wales, Bali and New Mexico - Often physically separated but always returned to be together - Consideration of conduct during illness and hospitalisations - At time of death had not been together in same place for eight months - HELD - De facto relationship as defined, plaintiff entitled on intestacy.

Bar Mordecai v Hillston [2004] NSWCA 65 Bremer v Freeman (1857) 10 Moore Privy Council 306;14 ER 508 Hayes v Marquis [2008] NSWCA 10 Hillston v Bar-Mordecai [2003] NSWSC 89 CASES CITED : Howland v Ellis [2001] NSWCA 456 Jones v Grech [2001] NSWCA 208; 27 Fam LR 711 Robson v Quijarro [2009] NSWCA 365 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Sullman v Sullman [2002] NSWSC 169

TEXTS CITED : Conflict of Laws in Australia, 7th ed, 2002, Nygh and Davies p 679

Margaret Anne DION (plaintiff) PARTIES : Nancy Cimarron RIESER (first defendant) Steven Robert RIESER (second defendant) Estate of Richard Davis Rieser

COUNSEL : M B EVANS/ A KETAS (plaintiff) A SCOTTING (defendants)

SOLICITORS : Hungerford Lehmann & Andrews (plaintiff) Teece, Hodgson & Ward (defendants)

32 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

2008/291431 Margaret Anne DION v Nancy Cimarron RIESER & Ors - Estate of Richard Davis RIESER JUDGMENT 1 HIS HONOUR: INDEX TO JUDGMENT Intestacy, Will and Revocation 1 Letters of Administration in New Mexico 6 Claim for Administration in New South Wales, de facto spouse 7 Moveable Property In New South Wales 20 Claim to interest in house in New South Wales 22 Moveable property in New Mexico 30 Assets in Hong Kong 33 Land in New Mexico 35 Leased Land in Indonesia 39 Land formerly owned in Queensland 43 De facto relationship formation and early years 46 Projects in New South Wales, new house 58 Application for permanent residency in Australia 61 Addresses given by Mr Rieser 68 Last years: illness, hospitalisations, travels 69 Witnesses to the relationship Thomas Dion 96 David Halberd 103 Robert Burgmann 109 Rae Smart 115 Gordon Wright 118 David Allen 122 Nancy Rieser 127 Thomas Rieser 135 Steven Rieser 139 Lee Deschamps 147 Stowers and Bergolt 150 Shared life and travels 151 Review and Conclusions 158 Orders 167

2 These proceedings relate to intestate succession in the estate of the late Richard Davis Rieser, who died at 34 North Cloudstone Drive, Santa Fe, New Mexico in February 2007. The death certificate issued in New Mexico shows the date of his death as 8 February 2007, but the actual date is not known and it probably was several days earlier. Mr Rieser was born in Palo Alto, California on 7 February 1946. He is not known to have made a will which had effect at the time of his death; a will which he did make was revoked by a codicil. The parties have strong motivations to find any will, and they have made searches and inquiries without success. 3 Mr Rieser executed a Will on 21 March 1997. The Will was prepared for him by Fitz-Walter Walker, Solicitors of Surfers Paradise, Queensland and it appears to have been executed by him at or near Surfers Paradise. The Will gives his address as Unit 55, Ocean Sands, Main Beach. It contains provisions giving a million dollars to Mr M R Barber, an Attorney of Santa Barbara, California, who was appointed sole executor, a million dollars to Mr Robert Moore described as "my longstanding friend", the yacht "Swan" to Mr David Halberd of Santiago, Chile and : "6 The rest and residue of my estate I give to my long standing friend MARGARET ANNE DION of Puri Bayu, Kedewatan, Bali, Indonesia."

Mr Robert Moore and Mr Rieser were the principals of CTC Pty Limited, a film production company. Mr Rieser later had a bitter dispute with Mr Moore, and spoke of Mr Moore in terms which showed that Mr Rieser regarded Mr Moore as having defrauded him. Mr Michael Barber was an old college friend who practised law. 4 Mr Rieser executed a Codicil dated 10 December 1999 (Ex F page 8) by which he revoked "any will made by me in the State of Queensland, Australia and any gift made thereunder" but made no positive disposition. The Codicil was executed on 10 December 1999 at a law office in Santa Fe in the presence of an administrative assistant and a paralegal who worked there. The Codicil was prepared by a solicitor in Ballina, New South Wales, and not by Mr Fitz-Walter's firm. 5 Mr Rieser did not live an ordinary life. He was erratic and inconsistent in many ways. He did many things which were markedly unusual and seem difficult to understand. The evidence does not show clearly what assets and resources he had or what liabilities. He had a manner of using assets which were associated with him indirectly, sometimes through companies, sometimes through other persons. Mr Rieser's resources and his dealings are impossible to understand. Ms Dion was able to pay for his medical treatment and attendances in Santa Fe in 2005, with resources of his as well as money he borrowed from her and others. After leaving his large hospital bill to be attended to by the County Indigent Fund he in some way had resources with which to live, and to travel from continent to continent, to equip Ms Dion to pay for significant purchases of equipment for his boat project, to deposit $US11,000 in cash at the clinic at Tijuana; he owned glider aircraft in Australia and in the United States, and three vehicles at the house at Santa Fe (two of which were registered in her name), and a significant collection of artefacts there. It is quite possible that even in his last years he had resources which the parties to these proceedings do not know of. 6 The first defendant Ms Nancy Rieser is the sister of the deceased. She obtained a Grant of Administration from the First Judicial District Court of New Mexico. Letters of Administration were first granted to a Bank and Trust Company in an application of which Ms Dion was not given notice. When it appeared that there was a dispute the Bank and Trust Company withdrew and Administration was granted to Ms Nancy Rieser. In my understanding that grant is an interim grant and further proceedings are pending in New Mexico in which Ms Dion seeks its revocation and a Grant of Administration to her. 7 By summons issued on 18 January 2008 the plaintiff Ms Dion applied to this Court in common form for Letters of Administration of the estate. She claims to be entitled to a beneficial interest in all the assets in the estate absolutely, as Ms Rieser's spouse within the meaning of s 61B(2) of the Probate and Administration Act 1898. Section 61B(2) provides: "If the intestate leaves a spouse but no issue, the estate shall be held in trust for the spouse absolutely."

Section 32G makes the reference to the spouse of the intestate in s 61B(2) include a de facto spouse; Ms Dion claims that she was the de facto spouse. 8 Section 32G has been in its present terms since 23 September 1999 when the amendment effected by the Property (Relationships) Legislation Amendment Act 1999 s 4 and Sch 2 came into operation, and provides: " Interpretation

(1) In this Part: de facto relationship has the same meaning as in the Property (Relationships) Act 1984.

de facto spouse , in relation to a person dying wholly or partly intestate, means someone who:

(a) was the sole partner in a de facto relationship with the person, and (b) was not a partner in any other de facto relationship.

(2) Except where the contrary intention appears, a reference in this Part to the spouse of an intestate includes a reference to a person who, at the time of death of the intestate, was the de facto spouse of the intestate." 9 "De facto relationship" is defined in s 4 of the Property (Relationships) Act 1984, as amended by an amendment which also took effect on 23 September 1999: " 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."

(The reference in s 4(4) to s 6 does not affect the present case.) 10 The Property (Relationships) Act 1984 when first enacted was entitled the De Facto Relationships Act. That Act conferred power on the Court to adjust property interests of parties to a de facto relationship, and amendments to the Probate and Administration Act 1898 (then entitled the Wills, Probate and Administration Act) conferred rights on de facto spouses, including rights in intestate succession. The amendments in 1999 restated the definition of "de facto relationship" but did not make the definition any narrower. There was no large departure from the previous definition as it had been judicially expounded in case law since 1984. The list of matters for consideration set out in subs 4(2) had been evolved in that case law. 11 In my opinion the present definition should be applied when deciding whether a de facto relationship existed before 1999. I follow the opinion adopted for the definition of "close personal relationship" in s 5(1)(b) by McColl JA in Hayes v Marquis [2008] NSWCA 10 at [68]. 12 The present definition was substantially modelled on judicial analysis of the earlier definition: see Hayes v Marquis at [72]. On the continued application of earlier judicial opinion after the amendment see Jones v Grech [2001] NSWCA 208, 27 Fam LR 711 at 715 - 716 [7] Powell JA, and Sullman v Sullman [2002] NSWSC 169 at [45], [46], Campbell J. The reference in the earlier definition to living together as "husband and wife", which could lead to inappropriate search for analogies to that legal relationship, has been recast. The definition no longer uses the Latin phrase "bona fide" which led me into error in Hillston v Bar-Mordecai [2003] NSWSC 89, corrected by the Court of Appeal Bar Mordecai v Hillston [2004] NSWCA 65. In my understanding the new definition re-states and somewhat amplifies the earlier definition and does not make a large departure from it. The definition should be understood and applied in whole and should not be dissected into discrete elements each of which must be fulfilled; as Kearney J said of the earlier definition in Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685, there is "a single composite expression of a comprehensive notion or concept, … to be approached by considering the expression as a whole and not in several parts." This observation was applied in Hayes v Marquis at [73] - [74] where McColl JA said: "73 In his Honour's view determining whether the statutory definition applied required the Court to make a value judgment having regard to a variety of factors relating to the particular relationship. Although his Honour enumerated many such factors, he made it plain that they were not exhaustive, an approach reflected in s 4(3) of the Act. Kearney J adopted Powell J's approach in Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 (at 685), holding that the definition of 'living with … on a bona fide domestic basis' in s 6 of the Family Provision Act 1982 was a 'single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts'. These cases establish that definitions of relationships are not to be dissected into discrete elements, an approach endorsed by Mason P, Tobias JA and Davies AJA in Bar-Mordecai v Hillston [2004] NSWCA 65 (at [86], [125]). What this means practically, is that it is necessary to consider the evidence as a whole, not under isolated headings: Barnes v De Jesus [2001] NSWSC 19 at [26] per Windeyer J.

74 This approach was highlighted by Bryson J in Burden v Cottee (Supreme Court of New South Wales, Bryson J, 31 July 1998, unreported), speaking of the factors Powell J had enumerated in Roy v Sturgeon : 'The Court is to make a value judgment having regard to a variety of factors affecting the particular relationship, including those which are relevant of the ten factors listed at 459. Many of the factors listed by Powell J are difficult to appraise and none is conclusive; the presence or absence and the intensity of a sexual relationship are not conclusive … I too regard it as necessary to review the facts of each case and then make a finding of fact, referred to by Powell J as a value judgment, on whether the definition as a whole is fulfilled. Such an exercise when applied to a domestic relationship cannot really be reduced to an orderly or syllogistic demonstration.'" 13 McColl JA also said: "79 Similarly, in my view, the question whether a couple are 'living together' for the purposes of s 5(1)(b) will turn on an evaluation of the nature and extent to which they share a household. Having regard to the fact, however, that they do not have to live together as a couple to satisfy s 5(1)(b), it might be thought the requirement of a common residence might be somewhat more attenuated than in s 4.

80 Further, the concept of "living together" is only one of the three indicia of the relationship in s 5(1)(b). The decision as to whether the statutory definition is satisfied will, like the decision about whether a de facto relationship exists, ultimately be a value judgment which has regard to the three indicia to determine whether there is a relationship which fulfils the definition as a whole."

These observations illustrate the application of s 4. Beazley JA agreed in substance with McColl JA. Einstein J's views were not entirely uniform with those of McColl JA, but I regard her Honour's reasons as authoritative. 14 A de facto relationship is a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close their involvement in each other's emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element. Judicial consideration of separation intervals during a relationship has not been extensive and has usually related to relatively short intervals such as holidays or hospitalisations. Once a de facto relationship exists its termination is not readily assumed. In Howland v Ellis [2001] NSWCA 456 at [20], Stein JA said: "20 However, more than a mere physical separation is required for a de facto relationship to come to an end. The physical separation of the parties must be accompanied by an intention on the part of either partner to permanently end the relationship."

Meagher JA and Ipp AJA concurred. Stein JA made this observation in relation to a well-established de facto relationship in which there was a physical separation when one party was arrested, held without bail and later sentenced to imprisonment. The relationship continued for several years in the intentions of the parties, and also according to their conduct subject to the severe limitations of imprisonment. This opinion establishes that physical separation is not inconsistent with the continuance of the relationship. 15 The State law confers the same succession rights on de facto spouses as it confers on spouses in marriages. The State law does not create a marriage. It would be beyond the legislative power of the State to do so, as the power to make laws with respect to marriage is conferred by the Constitution s 51 (xxi) on the Commonwealth Parliament and has been exercised. 16 The Succession Act 2006 has taken the place of the Probate and Administration Act 1898, but does not apply to this case because Mr Rieser died before the Succession Act took effect. Commonwealth legislation has taken the place of the Property (Relationships) Act 1984, but did not apply at the times now relevant. 17 This Court has jurisdiction to grant administration because Mr Rieser left assets situated within the State of New South Wales: s 40 of the Probate and Administration Act. If Ms Dion is to be granted administration she must establish that she is entitled to an interest in his assets, and to do that she must show that she was his de facto spouse at the time of his death. The defendants are the sister and two brothers of the deceased, and they dispute that she was. If Ms Dion is not entitled on intestacy under the law of New South Wales his sister and brothers are. The hearing before me has not related to the whole of her application for Letters of Administration, but to the separate question whether she was Mr Rieser's de facto spouse. Her application turns on the separate question: if she succeeds, her application becomes a formality. 18 In Conflict of Laws in Australia, 7th ed, 2002, the learned authors Nygh and Davies say at p 679: "[37.2] It has been trite law, at least since Pipon v Pipon (1744) Ambler 25; 27 ER 14 that the succession to moveable property on intestacy is determined by the law of the domicile of the intestate at the time of death: Bremer v Freeman (1857) 10 Moore Privy Council 306 at 358."

Bremer v Freeman is also reported at 14 ER 508. Observations by the Privy Council at 357 - 358, 526 - 527 support these learned authors. The Privy Council cited Story, "Conflict of Laws" s 380. 19 The law of New South Wales governs intestate succession to any interest in real property situated in New South Wales. The law of succession which applies to moveable property, wherever it is, is the law of the domicile at the time of Mr Rieser's death. I have been told by counsel that the parties contemplate that questions of domicile and succession according to the law of domicile will be decided in New Mexico. According to the registration particulars in Mr Rieser's birth certificate each of his parents had been resident in California for their whole lives. California was probably his domicile of origin. It could be quite a difficult and elaborate inquiry to determine what was his domicile at the date of his death and whether he had ever acquired a domicile of choice in a place other than California. His sister and brothers claim that his domicile was in New Mexico, and that they are entitled to intestate succession to his moveable property according to the law of New Mexico; and that the law of New Mexico does not recognise any status or succession rights of Ms Dion as de facto spouse. 20 At his death Mr Rieser owned assets situated in New South Wales. In her inventory of estate assets Ms Dion disclosed a Caproni jet glider and trailer situated at Myocum, New South Wales, estimated value $AUD66,000, and bank accounts at the Commonwealth Bank and St George Bank containing a total of $AUD1,155.12. Evidence refers also to a partly constructed aluminium patrol boat to which some value should be attributed, although it would be difficult to value. These assets are moveable property. 21 The Taipan project was a project for design and construction of a small but very fast coast guard or patrol boat, to be manufactured in Australia, suitable for fisheries but also for coast guard and similar duties with governments; Mr Rieser hoped to sell boats to governments in Asia. The project and the expected business were involved in his plans for obtaining residency in Australia on business grounds. 22 Mr Rieser claimed an interest in real property situated in New South Wales, a house and farm property situated at Seven Mile Beach near Broken Head and south of Byron Bay, New South Wales (Certificate of Title Volume 13603 Folio 199, Lot 11 Deposited Plan 594611), of which Ms Dion is the sole registered proprietor. Mr Rieser's claim was recorded in two caveats which he lodged. Caveat W674542 lodged on 18 December 1986 claimed "Estate or interest pursuant to deed made 11th April 1984". Caveat Y968142 verified on 6 April 1990 made a claim in the same terms. The caveats remain on the Title Register but the validity of his claim has never been tested. As later passages in these reasons will show, I conclude on the evidence that he had a claim to have some equitable interest in this property. An equitable interest in real property situated in New South Wales would pass on intestacy in accordance with the law of New South Wales, wherever he was domiciled. 23 Inquiries and searches have not produced any clear information about whether any deed dated 11 April 1984 was executed or where it now is. A letter from Mr A R Williams, Public Accountant, of Kirribilli, New South Wales to Ms Dion dated 16 April 1984 (Ex B document P) according to its terms forwarded documents for her to execute, including a declaration of trust in respect of a property purchased in the Byron Shire. A declaration of trust which was enclosed was a draft for a proposed deed between Ms Dion and Richard Wellingham, "a duly registered British West Indies company having its registered office at Hunt Law Building, Fort Street, Grand Cayman BWI." The draft bore the date 11 April 1984, but as it was enclosed with a letter dated 16 April 1984 it obviously was not executed on 11 April. According to the terms of the draft Ms Dion declared that she was to hold the land as to six-sevenths in trust for Richard Wellingham although she was to enter into the contract of sale as purchaser. There is no executed deed in the terms of the draft, and Mr William's letter of 16 April makes it plain that it had not been executed on 11 April 1984. Inquiries of Mr Williams and of the solicitor who prepared the caveat have not resulted in any significant information about the existence or location of the deed. 24 Other documents in Ex B apparently relating to the purchase include an uncompleted form of directors' minute of Richard Wellingham of 10 April 1984. This resolution if passed would have said: "that the company purchase real property in NSW, Australia in partnership with Margaret Anne Dion and that the proportion of partnership interest be as follows:

M Dion 1/7th Richard Wellingham 6/7th"

The minute went on to appoint her as nominee of Richard Wellingham for acquiring its six-sevenths interest. 25 Mr A R Williams' letter also enclosed a document called "Memorandum re Property Purchase, Byron Shire, NSW". The means and objects of the acquisition are set out at length and as described included provision of $AUD350,000 funds for the purchase - $AUD50,000 by Ms Dion, $AUD225,000 by Richard Wellingham and $AUD75,000 by a loan arranged by Richard Wellingham which Richard Wellingham was to repay. The land was to be a rental property and there were plans for disposition of the rent and for the burden of taxation on the rent received. It does not clearly appear whether any or how much of this proposal was ever carried out. The arrangements about rental appear to have lacked reality; there was no likelihood of much rental income from the property and no indication that there ever has been any. 26 Exhibit B tab Q is a message from Ms Dion to Mr Fitzgerald, solicitor dated 30 December 1991 by which she sent him "a copy of a rough draft that you made for me in 1990" and asked him for some information about it. She enclosed a handwritten rough draft for a deed between Ms Dion and Mr Rieser (identified by their initials) which would have established that Mr Rieser procured the advance to Ms Dion of $300,000 to be applied to the purchase of the property at Broken Head and had also procured release of the obligation to repay the advance with interest, and would have gone on to provide that Ms Dion declared that she held the property as trustee for herself as to one seventh share and for Mr Rieser as to six seventh shares. The draft concluded "both MAD and RDR declare that they hold their shares as joint tenants in the proportions referred to above". The existence of this draft and the way it was considered in 1990 and 1991 support the conclusion that the arrangements contemplated in 1984 had not been carried out and the documents of 1984 had not been executed. There is no indication in the evidence that a document like the 1990 draft was ever executed, but if it had been the interest of Mr Rieser as joint tenant would have determined at his death leaving Ms Dion as sole owner. 27 I find on the probabilities that the arrangements contemplated by Mr A R Williams were not carried out, the draft deed bearing date 11 December 1984 was not executed and there was no resolution by the directors of Richard Wellingham. Until the end of his life Mr Rieser maintained caveats asserting an interest arising under a deed of 11 April 1984; but a deed in accordance with the draft bearing that date would not have conferred any interest on him. It seems possible that he may, or may arguably have had some resulting trust interest arising from contributions to purchase moneys; but if he did that would pass on intestacy to Ms Dion if she succeeded in establishing that she was his de facto partner. No evidence before me establishes that Mr Rieser's estate owns any continuing interest. What he had was a claim, which he alleged in his caveats but did not ever establish. 28 Ms Dion gave evidence that she regarded the house at Broken Head as their home. This is her interpretation, but it is a subject on which a categorical conclusion is difficult. There were many comings and goings to and from Broken Head and it is not possible to assess in a clear way what proportion of their time was spent there, or how much time cumulatively that amounted to. Ms Dion gave evidence about references made by Mr Rieser to Broken Head as his home; I accept what she says: "29 Richard always referred to the property at Broken Head as 'our home' or as 'home'. When we were travelling, including the times we spent in Bali, Richard would say words to the effect of, 'When we get home', and 'Since we left home' and, when we were about to or planning to return to Australia from Bali or some other destination, he would say words to the effect of, 'We will be flying home' or 'We will be going home' or 'We will get home'. In each of those contexts he always referred to the property at Broken Head. Richard said to me more times than I can count words to the effect, 'Australia is my home. I want to be an Australian. I am packing up my personal things to ship from Santa Fe to Australia. I am doing everything I can to obtain permanent resident status.' Richard often referred to the United States as the 'United Snakes'. He said to me on many occasions that, 'I don't like the United States because there is an atmosphere of fear and Australia has the "can do, no worries mate" attitude that is so positive.'" 29 I also accept Ms Dion's evidence that Mr Rieser often expressed to Ms Dion an intention that they would retire to the Broken Head farm and that he would continue to design boats there. The usual routine was that Ms Dion did all the cooking except that Mr Rieser prepared sashimi, Japanese raw fish cuisine. Mr Rieser worked on designs of their houses, villas and boats for clients and did consulting work. He sometimes referred to his occupation as architect. His design and consulting work on projects in Australia and Asia earned some income. There was also some business income from providing accommodation at the villa in Bali. 30 Mr Rieser owned moveable property situated in New Mexico. There are furniture and personal effects in the house he occupied at 34 North Cloudstone Drive, Santa Fe. He owned three motor vehicles kept at the house in Santa Fe; for one of them, a Porsche, Ms Dion was the registered owner. After Mr Riser died, Ms Dion signed over the Porsche to Thomas Rieser and Steven Rieser for a nominal $US1. One other of the vehicles was also registered in her name. 31 There are a number of art works and artefacts in the house. Photographs of these objects appear in Ex 3, taken by Mr Rieser's brothers after his death. It is clear and undisputed that a significant number of them belonged to Mr Rieser. The art works and artefacts are of many different kinds, paintings, stone statuettes and carvings, metal castings, scrimshaw work on ivory, narwhal tusks, metal urns. They are drawn from many different cultures. There is no evidence about their value but it appears to me that their total value could be quite considerable. They could not be treated as small household effects not likely to have realisable value. Most of the artworks and artefacts were stored in a cellar or strong room accessible only with a code. There were also household effects in the house. It took several people a number of days to pack them up. Plainly Mr Rieser made little progress on his project of packing them up and preparing them for shipment to Australia. Ms Dion marked a copy of the photographs so as to show which of the objects she asserts belonged to Mr Rieser, which were hers and which were owned by them together. I was not prepared to embark on evidence in detail about ownership or to make findings about who owned them. To decide that would have required much hearing time and had little or no bearing on the issue before me. I find that Mr Rieser at his death owned artworks and artefacts of significant value which were located in the house. 32 Ms Dion found two receipts in the house, each dated 29 January 2007, issued by a clinic in Tijuana, Mexico. One was a receipt signed by Dr Socorro Gonzalez for $US4,000 "Deposit for future treatments IBC Hospital", and the other was a receipt for $US7,000 "For future treatment for him and wife". Ms Dion gave Mr Rieser's brothers the receipts and a written authority to hand these amounts to Mr Rieser's brothers - Ex F page 7. They went to Tijuana and collected the money, and took it back to New Mexico. 33 The house at 34 North Cloudstone Drive, Santa Fe was acquired by Leckerman Enterprises Limited, a Hong Kong company. There were two issued shares in that company, the holders of the shares were two other Hong Kong companies; and the ownership of those shares was subject to a declaration of trust. Although it does not appear clearly how he did so, Mr Rieser controlled and was in the economic position of owning those shares, so indirectly he controlled ownership of the house. The shares were moveable property situated in Hong Kong at the time of his death. 34 On 28 November 1987 Mr Rieser writing from Santa Fe sent a letter to Mr Armando Chung of Hong Kong sending him all deeds, title insurance and covenants for the Leckerman properties in Santa Fe and Taos for safe keeping. He also stated this: " Benificiary Statement [sic]

In the event of my death all Leckerman properties in Taos and Santa Fe and all other interests including accounts and anything else that should acquire in the future is all to go to Margaret-Anne Dion. In such situation you are authorised to transfer all holdings to her or if she wishes to continue the company with her, MAD Dion, to be the new benificial [sic] owner."

The persons in control of the trust in Hong Kong gave effect to this nomination and transferred the shares to Ms Dion after his death. 35 At his death Mr Rieser also controlled ownership of two parcels of land in Taos County New Mexico, near Kiowa Village and adjacent to Carson National Forest. One contains 40 acres and one 16 acres. The 40 acre lot was held on trust for him by Safeco Title Insurance Company, a Californian company which has changed its name to Security Union Title Insurance Company. It was conveyed by Warranty Deed dated 3 February 1986 to Safeco Title Insurance Company, noted in the Warranty Deed to be trustee under a holding agreement. The other lot was conveyed to Leckerman Enterprises Ltd, the Hong Kong corporation. An easement granted by the United States Forestry Service on 16 January 1997 provided access to the county road for roadway and utilities over a strip 20 feet wide. 36 Exhibit 12 contains papers produced in evidence by Mr Lee Deschamps, an attorney practising in Taos, New Mexico. They contain some information about Mr Rieser's business affairs, including dealings with the house in Santa Fe during the year 2000. This correspondence shows that for some months from about December 1999 Sotheby's Real Estate of Santa Fe was engaged by Mr Rieser to have work carried out on the house to put it in a suitable state for sale, and to list it for sale. This project was not carried through. Mr Rieser was very unsatisfied with Sotheby's performance and had investigations made and correspondence written on his behalf by Ms Valerie Kessler, who conducted investigations under the business name Eurolink and had an office in Poole, Dorset, United Kingdom. On 14 April 2000 Ms Kessler sent a message on Mr Rieser's behalf to Sotheby's terminating their engagement as selling agents and making many complaints about their work. On 12 May 2000 Mr Rieser, in a rare example of a message written by himself, sent a fax message to Mr Deschamps which contains references to these concerns. Among other things this message shows that Ms Yvette R Roybal worked for him and was managing some aspects of his affairs related to the Santa Fe house; he asked Mr Deschamps to give her $US7,000 "out of my client escrow acct". He also referred to some business affairs relating to land in Taos County. Exhibit 12 shows that Mr Rieser had business affairs in which Ms Dion had little or no involvement and was assisted by other persons including two women in managing his business affairs. 37 Mr Rieser acted as the agent for Leckerman Enterprises Ltd, the owner of the house. When they were in Santa Fe, where they went for about a month each year over many years, Mr Rieser and Ms Dion would stay in the house and attend to maintenance tasks, which included putting on a new roof, reworking sky lights, working on plumbing or whatever work needed to be done. They were there most years but not all years. In later years there was considerable damage to the adobe walls caused by water entry and rising damp. Ms Dion described the work on the house in recent years as a major refit. Photographs in evidence show work being done in 2006, and show deterioration in the walls. Photographs of the interior appear to show a severe need for repair work and cleaning. Clearly the house was not in a good position to be offered for sale when these photographs were taken. 38 Mr Rieser had an arrangement for mail to be delivered to a mail call business in Santa Fe; this was the address usually used for mail. The property in Santa Fe has a guest house attached. The guest house was rented on a minimal rent with an arrangement that the tenant would pass on any mail received at the main house and look after the main house. When Mr Rieser died the guest house tenant, Ms Sollinger knew the lock code for the main house and was able to admit the Sheriff's Officers. 39 In 1983 Ms Dion and Mr Rieser leased some land in Bali, Indonesia, on which they later built a one-bedroom house and a guest house. The land is at Kedewatan, Ubud, Bali. The land was leased for a term of 23 years. Ms Dion is the leaseholder. The lease was renewed about March 2007, after Mr Rieser died, for another term of 23 years. They carried out a project of designing and building the house as their home. Mr Rieser designed the house and took part in its construction. Ms Dion did the interior design and staff training. The construction project took six and a half years to complete. The house was treated as a home for both of them and its construction was a shared project. For a long time it was used as a holiday house for Ms Dion and Mr Rieser, their friends, guests and family members. They began to use it as a rental property, a business venture, about 2003. 40 This is a striking instance of shared endeavour, involving attendances over some years which led to the construction of the house, involvement of Mr Rieser in projects relating to the house including the water supply which benefited the surrounding village, and much use of the house in the course of many visits over many years. Mr Rieser owned some effects and artefacts in the house at Ubud. 41 Ms Dion also leases a one room house on the coast at Candidasa about one and a half hour's drive from Ubud which she sometimes occupies, sometimes leases, and sometimes she allows friends to stay there. 42 While in Bali Ms Dion and Mr Rieser took part in Hindu religious ceremonies and observances there. They had involvement in village life. After his death Ms Dion arranged for his funeral and cremation in Santa Fe, giving instructions to the funeral undertakers and information for his death certificate. She organised a religious ceremony in Bali in which his ashes were scattered there. The ceremony and spreading of ashes was in accordance with Mr Rieser's wishes as told to her during his lifetime. She obtained consents of his brothers and sister to take his ashes out of the United States. Ms Nancy Rieser arranged a memorial service at a church in California, which was attended by members of Mr Rieser's family; Ms Dion did not attend. 43 Mr Rieser acquired home unit 55 at "Ocean Sands" Main Beach, Queensland by transfer lodged on 13 August 1996 and disposed of it by transfer lodged on 3 March 1999. The title was Lot 55 Building Unit Plan 104567, and the purchase price was $AUD355,000. Mr Rieser acquired a house at Tin Can Bay, south of Fraser Island, Queensland, for $AUD550,000 by transfer lodged on 27 August 1997. He held it for some time and sold it by transfer registered on 1 May 2002. At times he mortgaged these properties as security for advances. 44 Ms Dion had no involvement in these investments. In Ms Dion's understanding Mr Rieser bought the apartment in Main Beach as an investment property, stayed there a few times and sold it as quickly as possible. There are indications in evidence that he gave the apartment as his address on a number of occasions, and that he stayed there, for longer than "a few times". He stayed there when it was inconvenient to commute three hours to Broken Head. 45 Mr Rieser may have had other significant assets; his affairs and his dealings were complex and obscure and it would be difficult to establish the whole position. 46 When Ms Dion first met Mr Rieser in February 1981 Ms Dion was married to Mr John Winston Bull, but was separated from him, and was working on a yacht. She met Mr Rieser in Singapore, where he was the skipper of another yacht. Then she was employed as cook on his yacht and she says, "We became a couple three months later." Ms Dion was often referred to by the sobriquet "Emmer" or "Emma". Mr Rieser was sometimes called "Ace" and sometimes "Reese". Her affidavit evidence was that they worked together for the next two and a half years, that is, until about August 1983, in boat yards, chartering and delivering boats. Her oral evidence showed that there were times when she returned to her husband who lived in Marrickville, New South Wales. 47 Ms Dion married Mr John Winston Bull at the Registry at Sydney on 9 February 1979. The marriage was dissolved by the Family Court of Australia on Mr Bull's application by a decree nisi of 6 January 1986, absolute on 6 February 1986, on the ground that the parties separated on or about 12 March 1983, when Mr Bull remained in residence at 32 Fernbank Street, Marrickville and Ms Dion took up residence at 44 McIntosh Street, Mascot (see Ex G). 48 Ms Dion was born in Canada and is a Canadian citizen. She became a naturalised Australian citizen on 7 September 1984 and has dual nationality. Ms Dion relied in support of her application for Australian citizenship on two declarations made by Mr Bull and herself about the subsistence of their marriage. On 11 March 1983, significantly one day before the separation on which the divorce was based, both Mr Bull and Ms Dion declared that they were married: "…… and that our marriage currently subsists and that there is no intention that the marriage will cease to subsist in the foreseeable future."

Ms Dion and Mr Bull also signed a certificate on the reverse in which each certified "…… that the above information supplied by me to the interviewing officer so far as I know or could reasonably ascertain is correct in every detail"

Mr Bull and Ms Dion gave another declaration and certificate in the same terms dated 5 July 1984. That date was after the 12 months' separation referred to in the divorce decree had been completed, but before the dissolution proceedings were commenced in 1985. 49 Defendants' counsel claimed that these certificates were adverse to Ms Dion's credit. Although later events make the certificates seem anomalous, in my opinion there is no support in the evidence for a finding that either of them was false to her knowledge. 50 There was cross-examination directed to showing that Ms Dion had made inconsistent statements or incomplete statements about her de facto relationship on movement cards on entry to and exit from Australia, accompanied by the contention that her treatment of these cards was adverse to her credit; this cross-examination produced no significant adverse effect. There was only a limited opportunity to state the position on the cards, and no box she ticked or indicated was shown to be inaccurate. 51 Early in the relationship they did a lot of sailing together. At first the yacht "Swan" was their dwelling. It was controlled by Mr Rieser, through a company controlled by him, and he kept it and sailed it for some years. He put a high value on the yacht. Eventually he sold it to Mr David Halberd, who at one time also sailed on yachts including this one, but settled near Santiago, Chile in 1984, where he conducted a restaurant business. 52 Yachting, including round-the-world races, was an interest of Mr Bull's. Ms Dion did not regard herself as having separated from Mr Bull when she went to work on yachts. After sailing with Mr Rieser she lived at times in Sydney, with Mr Bull; their marriage relationship was breaking down. On one occasion Mr Bull visited Ms Dion at the house at Broken Head and stayed as a friend. She considered that her relationship with Mr Bull as husband and wife was over when he asked for a divorce in 1985. As she said, "I was conflicted, but finally we ended up getting divorced" (T 45). 53 Ms Dion and Mr Rieser also spent periods of time in the United States. They lived together in an apartment in Sausalito, California for much of 1983, although not for the whole of that year, part of which she spent in Sydney with Mr Bull. At another time they lived for a period in Minden, Nevada. Each of them experienced grief and loss in which the other was supportive. Ms Dion's mother died of cancer, and her sister, Keitha, also died of cancer. Mr Rieser also experienced grief when his father and later his mother suffered illness with cancer and died. Mr Rieser's father died on 22 October 1987. His mother died on 13 May 1988. 54 The relationship was open and known to Ms Dion's relatives. Both her mother and her sister stayed with them in Bali, each for many months. Ms Dion's sister and her brothers all stayed with them in Australia, in Bali and in the United States. Mr Rieser's brothers visited them and the relationship could be observed by them. One of the brothers knew Ms Dion before Mr Rieser did, as he met her while both worked on a yacht in Singapore. 55 In my finding the relationship became a de facto relationship as defined about the time in 1985 when Mr Bull commenced divorce proceedings. In my opinion it is clearly established that a de facto relationship as defined existed at earlier times. This was not really disputed, and although it was not literally conceded it is borne out by evidence of defendants as well as by a large body of other evidence. The most substantial question in the case is whether the relationship continued to exist at the time of Mr Rieser's death. 56 Ms Dion and Mr Rieser had many recreational activities and journeys within Australia, including swimming, entertaining friends, touring in Australia and camping, and gliding. Ms Dion acquired qualifications as a glider pilot in Australia on 3 December 1981. Mr Rieser took part in obtaining a certification of appreciation for her as navigator in Oshkosh, Wisconsin on 3 August 1985. They flew gliders at many places in Australia including at Waikerei in South Australia, Narromine and Lake Keepit in New South Wales, and also overseas. 57 When at Broken Head they attended to farm work, work on an orchard, and the care of animals. They had the assistance of people who lived nearby. Mr Gordon Wright worked for them as farm manager from about the time they acquired the property in 1984 and continuously thereafter. He acted as a contact point and took considerable responsibilities in managing not only their mail but also their affairs, attending to payment of accounts and banking, and he had authority to operate a bank account. From about 1997 onwards Mr Rieser involved a mechanical engineer, Mr Burgmann, who operated a factory in Ballina, in projects relating to the design and construction of his prototype work boat. 58 Design of a proposed new house at Broken Head involved a great deal of thought, work and effort by Mr Rieser, and also by Mr David Allen, Architect, over an extended period. Exhibit B letter F is a draft of agreement dated 2 September 1996 (or possibly 9 February 1996) including details of design work to be done by Mr David Allen for a "private residence in Byron Bay, Australia," with a schedule of payments totalling $US30,000. This draft document shows serious and detailed consideration and attention to the design project. It is unsigned, more sua. A letter from Mr David Allen of 14 April 1997 stated the then position, in which he was about to present final concept drawings and, if approved, to submit plans to Byron Shire Council for preliminary assessment. Detailed plans prepared by Mr Allen are included in Ex B, and entitled "The Dion Farmhouse". In April 1997 before submission of plans to Council Mr Allen made an estimate, in his words "an estimate/guesstimate" of the cost of construction at between $AUD913,750 and $A1,075,000 for the basic building costs only, not including fittings, fees and costs. 59 The development application was refused by Byron Shire Council. Lawyers in Lismore gave considered advice, in a letter addressed to Mr Gordon Wright of 24 August 1998, to the effect that there were no prospects of obtaining approval unless various modifications were made -Ex B letter G. Mr Rieser continued to work on alternate house plans at various times for the rest of his life. 60 Ms Dion had much involvement in assisting Mr Rieser in his business affairs, which at least until the late 1990s were multifarious, with involvement in real estate investments, a film production company, very extensive plans for the projected new house at Broken Head and for development on the property, construction of a bathhouse on the property and a shed for work on the Taipan boat; and very extensive work on the boat. There were also design projects involving Mr Davies of Brownhouse Holdings. Ms Dion was trusted to make and made many business arrangements in these affairs, showing that Mr Rieser had confidence in her dealings with his business affairs and his money. He had projects and business affairs with which Ms Dion had little or nothing to do, but also other projects and business affairs in which she had significant involvement, and her involvement did not ever end. 61 Mr Rieser applied for an Australian Business Skills (Residence) Visa, a permanent residence visa, by an application lodged on 14 May 1997. In his application Mr Rieser stated (Ex 13, page 304) that his marital status was "de facto/common law" and that the relationship began about 1986. He named Ms Dion as his spouse (Ex 13, page 306). In this application he gave his address as "Unit 55, Ocean Sands, Main Beach, Qld". On 9 March 1998 (Ex 13 page 100) Mr Rieser's solicitors gave the Department of Immigration and Multicultural Affairs a history of his career. As there narrated, he had been self-employed throughout his business career. He purchased an abalone business in the USA when he was about 20 years of age and sold the business after about four and a half years for about $US2 million. Then he conducted new businesses in diving for coral and in diving for sea urchins and sold those businesses. Then when he was about 38 years of age (i.e. about 1986) he traded in stocks, shares and bonds until about 1994. In 1994, together with Mr Robert Moore, he established CTC Pty Limited in Australia for video and film production. This involved travel overseas as well as work in Australia. There was a projected purchase of a radio station in Tin Can Bay, Queensland. 62 It was asserted that his net assets in CTC Pty Limited for 1996 were $AUD118,814.95. It was also asserted that he owned property at "Ocean Sands" purchased for $AUD355,000, and that he owned property at Seven Mile Beach, and a valuation as at May 1997 of $AUD1,200,000 was provided. He intended to construct a dwelling there, and plans were provided to the Department. The application said: "In relation to the Broken Head property, our client instructs the deed of title refers to Margaret Anne Dion, his defacto partner, however, our client did in fact purchase the property which is evidenced by a caveat over the property registered in the name of our client. Kindly refer to the copy of the caveat as provided to you."

It was also said that he had assets overseas including a coin collection worth $US1,500,000, a yacht worth $US1 million, land in California, cash, ivory and other collectible items, that his assets exceeded some millions of dollars and he intended to transfer them to Australia. 63 Mr Rieser's solicitors supported his application by sending the Department a valuation by Mr Valuer Peter J Bennett, a registered urban and rural valuer, which stated that the land at Seven Mile Beach contained 11.83 hectares (which is about 30 acres) and that there was a three bedroom western red cedar clad timber framed dwelling of approx 120 sqm living area. The valuer contemplated residential use. The land was zoned Rural 1(d) Investigation and there was a proposed rezoning to Rural 1(a). The valuer described the access; there was a frontage to Seven Mile Beach Road (a gravel road) near its northern end after the road passed through National Park land. The nearest village and shopping were at Suffolk Park 6 kilometres away. The property was rather remote. There was no postal delivery service. 64 Mr Rieser prepared a Notice of Intended Marriage (Ex F page 10), with particulars of an intended marriage between himself and Ms Dion, there named as Margaret-Anne Bull. The date of this document does not appear but it refers to her as having been divorced, the date being "1983-1984". This document bears a signature for Ms Dion, but the signature was not made by her and she did not take any part in preparing this document. She learnt that it existed at some time when Mr Rieser was making inquiries about immigration to Australia. When, how and why Mr Rieser prepared it are not known, but it shows that he entertained the idea of marrying Ms Dion, or of claiming to someone that he intended to do so. 65 Mr Rieser's solicitors said this on his behalf, in a letter to the Department of Immigration and Multicultural Affairs of 20 February 1998 (Ex F p 129): "In relation to Margaret Anne Dion, our client instructs he does not wish to apply for permanent residency in Australia based on spousal grounds as he prefers to enter Australia as a permanent resident independently. Although our client and Ms Dion have been in a genuine and committed relationship for an extremely long period of time, we advise it is our client's wishes not to apply for a spousal visa."

Defendants' counsel contended that this statement is adverse to the Ms Dion's case. In my view however it tends to confirm her claim about the nature of their relationship. If Mr Rieser had another ground for obtaining a visa he could reasonably decide to rely on it and not to obtain a visa on a basis which depended on Ms Dion continuing to be his spouse, and continuing to be alive. 66 The application for a visa was refused on 10 September 1998 on the ground that the net assets owned by Mr Rieser in the main business in Australia were worth less than $AUD100,000. This seems to have brought his application for permanent residency to an end. However a letter by Mike Davies of Brownhouse Holdings Pty Limited to Mr Rieser's solicitor of 13 November 1999 seems to show that some further application may have been in contemplation (Ex 13, page 192). Mr Davies described Mr Rieser's involvement in three projects, development of a maxi-mill, which was a high speed mill for machining large forms in soft materials, development of the Taipan fishing boat and development of Taipan out-drives, a marine stern drive propulsion system. 67 When Mr Rieser entered Australia at Sydney Airport on 17 October 1999 Immigration officers considered refusing him entry. This arose from records of convictions in California in 1966, 1967 and 1974 on charges which were subsequently dismissed and a record of a charge in Santa Fe in 1995 which was also dismissed. In the course of giving information at the Airport Mr Rieser talked about his involvement in grand business plans in Australia and claimed to have already lost some $2 million dollars in partnerships that went wrong. He was allowed to enter, but consideration began of cancelling his visa, a subclass 686 visa - a tourist (long stay) visitor visa. A subclass 686 visa usually permitted entry as visitor to a citizen, not usually for work, studies or training, for over three months up to 12 months. These events did not lead to visa cancellation or refusal of entry. 68 Mr Rieser was erratic when giving his address or addresses. Mr Rieser gave a number of different addresses in Australia on various occasions and did not consistently give the house at Seven Mile Beach as his address. As there was no postal delivery there, this is not surprising; it would have been imprudent to suggest that mail should be sent there. Mail was usually addressed to 745 Left Bank Road, Mullumbimby, which was the house and the address of Mr Wright, the farm manager. When Mr Rieser applied for a visa he was asked for his previous addresses, "… places where you have lived for 12 months or more during the last 10 years …" and he said "Moves around a lot but these are the only two places of 12 months occupancy" and gave the unit in Ocean Sands, Main Beach and an address in Aljarobo, Chile, as the only answers. 69 During the last seven years of his life Mr Rieser had many periods of illness. Mr Rieser had several hospital admissions at St Vincent Hospital, Santa Fe late in 1998 and early in 1999. From 2000 onwards Mr Rieser required hospitalisation on many occasions. He was hospitalised in Bangkok, Denpasar, and in St Vincent Hospital, Santa Fe. He attended the American Biologics Clinic in Tijuana, Mexico on a number of occasions. Ms Dion was his primary care giver, visiting him when in hospitals and assisting him during recuperations. Ms Dion attended him frequently while in hospital, told his relatives and others what his condition was and generally acted as the only support person. 70 On a hospital admission form at St Vincent Hospital, Santa Fe, New Mexico, on 31 October 1998, Ex 13 page 411, Mr Rieser gave a personal profile in which he owned a house in Santa Fe but primarily lived in Australia. His primary problem then was a gastro-intestinal bleed. A note of his medical history included "The patient drinks on an average half bottle of vodka a day and has done so for 15 years." In another history on the same day he told a doctor "He drinks about a fifth of vodka a day …". A fifth is slightly less than a standard 750 ml bottle. During this hospitalisation Mr Rieser had help and support from his brother. His later hospital admissions and treatment are largely recurrences and developments of the same problems. He was again treated at St Vincent Hospital on 18 December 1998 for a 14 cm head laceration and the history included "the patient was drinking heavily when he fell off a balcony. According to his friend, he fell about 10 ft." 71 Here and there in the St Vincent Hospital records are statements in histories or otherwise attributable to Mr Rieser, or possibly to Ms Dion, which have some bearing on his relationship with her. Sometimes she is recognisably referred to as "his friend". Ms Dion is also referred to as his girl friend and as his partner, his significant other and on one or two occasions as his wife. The defendants' counsel claimed significance for these statements when determining the nature of their relationship. I do not think that they have any real significance. Hospital admissions and treatment are not occasions for searching investigation or elaborate statement on the nature of such a relationship. Other evidence suggests that a de facto relationship has no significance in the law of New Mexico. There is no apparent reason for a medical practitioner or hospital staff member to investigate carefully or state fully what the relationship was; their attention would be on caring for their patient. Hospital records also contain contact information for Mr Rieser's sister and one of his brothers; this is unremarkable. 72 Ms Dion was involved in necessary liaison with hospital staff and doctors, including medical specialists during hospital stays and outpatient care. When forms of consent were required for medical procedures she signed them; Mr Rieser was not always able to do so because of his condition. She communicated with his relatives when he was hospitalised. She remained in contact with Steven Rieser and kept him advised of Mr Rieser's health problems. 73 Mr Rieser left Australia on 1 December 2004 and went to the United States. Ms Dion left Indonesia in December 2004 and joined Mr Rieser in Santa Fe on 19 December 2004. They remained together in Santa Fe until late in October 2005 when Mr Rieser went to Bali. However there was one exception in that she travelled to Vancouver, Canada, for a few days from shortly before 16 June 2005 until 18 June 2005. The purpose of her journey was to renew her Canadian passport and her United States visa; if these expired she risked being deported. She obtained renewal of her passport on an emergency basis for which she paid a fee. She also visited relatives in Vancouver. 74 Their stay in Santa Fe was eventful. Ms Dion spent four days from 6 to 9 January 2005 in St Vincent Hospital suffering from pneumonia. Then she had bed rest in the house at Santa Fe for about two weeks. During this period Mr Rieser assisted her with activities of daily living. Then in mid to late May Mr Rieser became ill. Ms Dion was concerned about his health and took his blood pressure several times each day. On 18 May his blood pressure became extremely low and he seemed to lose consciousness and could not walk on his own. She took him to St Vincent hospital by car, although he was reluctant to go, and she arranged his admission. He was admitted to the Emergency Department and soon afterwards to the Intensive Care Unit. He remained in the Intensive Care Unit for approximately one month. He then remained in the hospital ward for about another month until he was discharged on 15 July 2005. 75 Ms Dion visited him daily in hospital and spent much time with him. She also attended to his affairs while for some weeks he was quite unable to do so; indeed he was unable to communicate. In May and June 2005 he was not always lucid. When she was absent in Canada she arranged for two of his friends, Chris Williams and Al Martinez who had known him for many years, to visit him each day, and she was in contact with them by telephone. Mr Rieser's sister Ms Nancy Rieser arrived in Santa Fe while Ms Dion was in Canada. Ms Nancy Rieser remained in Santa Fe for about two weeks and visited her brother in hospital. 76 On 27 June 2005, Ex 13 page 464, Ms Dion told a hospital staff member "She states she is not married to Richard, and that he has not shared info about resources w her". Naturally enough payment of his hospital bill, which was very large, was considered by hospital staff. On 30 August 2005 another staff member noted "Patient refused to reveal resources …". On 2 September 2005 he told another staff member by telephone, Ex 13 page 405, "PT called me back/he states that he has gone thru all his savings/is not making any money at this time/is req ast/asked what income his wife had/he stated that she is not his wife/just a girlfriend/she went back to Canada/he is single/would like to apply for SFIF/let him know that I will speak to SFIF …" [SFIF refers to Santa Fe Indigent Fund]

In another conversation that day, "He stated that he does not have any children & he is not married". 77 On 6 July 2005 Discharge Planning shows: "Met with patient and then briefly with his significant other, Emma, to discuss discharge plans. Patient states that he plans to relocate to California where he has good family support. He states that many family members are in the medical field. .… When his significant other arrived, she stated that she has been in contact with patient's family and confirms that they are willing to take patient into their homes." 78 On 12 July 2005 a hospital record shows: "Spoke with patient again regarding his discharge plans. He states that because he is recovering so well, he does not see a need to go to California. He plans to remain in Santa Fe. He states that his lady friend, Emma, will be available to assist him at home. Patient also states that he will be able to care for himself. Case Manager will need to confirm with Emma, her plan to provide continued care at home" 79 In a document recording discharge planning, Ex 13 page 468, there is a record of a conversation with Mr Rieser on 14 July 2005. This includes "He states that he will be returning to his home with assistance provided by Emma. She will be available to transport home." He had earlier told hospital staff that he would travel to California to be looked after by his relatives there. Ms Dion denied in evidence that she was the source of this information, and said that she did not know of any such arrangement. These records show that hospital staff dealt with her, as well as with him, when making arrangements for Mr Rieser's discharge and later care. 80 Ms Dion and Mr Rieser were both covered by the same medical and hospital insurance issued by Expacare, which carried on business in the United Kingdom. The Expacare cover ran from 21 November 2003 and as of 22 July 2008 was due to expire on 20 November 2008, but could be renewed. It covered Mr Rieser from 21 November 2003 to 21 May 2007 - Ex B document N. The last invoice was rendered on 17 October 2006 to Mr Richard Flax at an address in Bali, Indonesia. Richard Flax is referred to elsewhere as "our agent in Bali". He organised the insurance. Premiums totalled $US9,945 per annum and $US4,972.50 was payable half yearly. I infer that this was paid, as Mr Rieser was covered until 21 May 2007. There were numerous exceptions to this cover, but it is significant that the same policy was obtained to cover both of them, and continued in effect for some years. Cover did not extend to the United States, except for a short period of six weeks after arrival where emergency treatment only was covered. There is some significance in the fact that the cover did not extend to the United States. 81 In connection with the need to pay for his hospital treatment at St Vincent Hospital Mr Rieser made a declaration before a Notary Public on 21 September 2005 certifying that he did not have insurance cover and verifying this statement: "The patient is housesitting at Rt 7 Box 128-I which is just temporary. Rent free & exchange for maintenance services."

The mailbox on Route 7 identifies the house in North Cloudstone Drive. This statement was a markedly incorrect and deceptive statement of his position. In another document which he acknowledged before a Notary Public on 21 September 2005 (Ex 4) he said to the effect that he had not applied for employment benefits and said: "I am self-employed, currently unemployed, living on saved money (now spent and gone) and the goodwill and favors of my friends."

It would be difficult to say that this was untrue, but it was deceptive. 82 Mr Rieser made a statement supporting his application to the Santa Fe County Indigent Fund which explained why he had not applied for assistance earlier. Mr Rieser said in the statement that: "I, Richard Rieser, attest to the truthfulness of the following statements regarding my finances, for the purposes of applying for financial assistance for my St Vincent's Hospital bills."

This shows that he had a full and clear understanding of what this series of declarations was about. The facts he then attested are no doubt correct. In a statement before a Notary Public on 28 September 2005 Chris A Williams, a home owner in Santa Fe County, certified that Mr Rieser had lived in Santa Fe County since 2 December 2004. I note the recency of this date. (The address given is difficult to follow but evidence of Ms Dion shows that it refers to the house in North Cloudstone Drive.) In connection with the application to the Indigent Fund Chris Williams was listed as "friend", and he signed documentation which was a large part of what was used to establish Mr Rieser's eligibility for financial assistance. 83 Ms Dion paid the cost of all his doctors and procedures. The claim on the Indigent Fund related to his hospital accommodation. A letter from an officer of Santa Fe County Health Care Assistance to Ms Dion dated 20 April 2009 shows that St Vincent's charges totalled $US243,654.43 and that Santa Fe County paid $US72,064.45 for services on dates from May 2005 to October 2005. A letter of 1 July 2009 from an officer of Patient Financial Services of St Vincent Hospital addressed to Mr Rieser's family shows that for three different accounts the Indigent Fund paid a total of $US79,654.62 and the hospital took losses totalling $US163,981.11. The figures in these two sources are slightly different. 84 Mr Rieser made an outpatient visit to the hospital on 18 July 2005. He suffered a relapse and was readmitted from 6 to 9 August. He made another outpatient visit on 25 September and was again admitted from 10 to 14 October 2005. Mr Rieser told Ms Dion that he wished to go to Bali to recuperate and asked her to make travel reservations. Late in October Mr Rieser travelled to Bali for the purpose of recuperating from his illness. There were friends and also employed staff in the house at Bali. 85 Of the period from October 2005 Ms Dion's evidence is, "Richard recovered incredibly well with a lot of love, care and attention ….". I accept that this is so; it is very striking that he embarked on a number of intercontinental journeys after being very gravely ill in Santa Fe in 2005. The period from December 2004 onwards during which they lived together in Santa Fe is a striking exemplification of a strong relationship; each was ill and spent time in hospital, and each looked after the other. They had a shared project of putting the house in order, although this does not seem to have made much progress. 86 Ms Dion remained in Santa Fe until she left on 20 November 2005 and travelled to Australia, where she remained until 16 December 2005. While there she attended to business relating to the Taipan boat project, and did other work to forward his various projects. Then on 16 December 2005 she travelled to Bali and remained there. Ms Dion and Mr Rieser remained together in Bali from her arrival on 16 December 2005 until he departed on 17 July 2006; however, there were one or two interruptions. Ms Dion travelled to Singapore between 11 and 15 June 2006 in order to obtain a new visa for Indonesia. Mr Rieser was admitted to a hospital in Denpasar, Bali from 4 to 6 March 2006. Mr Rieser may have been in Santa Fe in January 2006; the slight support for this is that after his death a handwritten document of his dated 7 January 2006 (or possibly 1 July 2006), recording calculations and plans for shipping containers, apparently for moving his goods, was found in the house. Ms Nancy Rieser asserted that Mr Rieser left Australia on 12 June 2006 and that Ms Dion was not in Australia at that time. As Ms Nancy Rieser was not in Australia at that time or at any time before this litigation began, this evidence was not based on her own knowledge but on interpretation of documents she had seen in this litigation. There are other assertions in evidence to the same effect, but I find it more probable that they stayed together in Bali until 17 July 2006. 87 While in Indonesia Mr Rieser attended to his recuperation, and made some enquiries to further his hopes of selling his patrol boat to the Indonesian Government. After Mr Rieser left Bali on 17 July 2006 there was no further occasion when both were together in the same place. However, they remained in communication with each other, practically daily. 88 In July 2006 Mr Rieser travelled to the United States and remained there until 9 September 2006, probably in Santa Fe. On 9 September 2006 he went to Chile where he stayed with his long-standing friend David Halberd. He then travelled to Peru from 7 to 20 October 2006, and there saw a shaman, to attend to health concerns and to spiritual concerns relating to his outlook and view of life. He made arrangements contemplating that Ms Dion and he would both go to Peru to see the shaman in March 2007. He returned to Chile and then on 3 November 2006 travelled to Mexico, possibly by way of the United States. He visited and probably had treatment at the clinic in Tijuana, Mexico. He then went to Santa Fe. About 28 or 29 January 2007 he again visited the clinic in Tijuana; on this occasion he deposited sums totalling $US11,000 at the clinic, looking forward to future treatment for himself and Ms Dion. He then returned to Santa Fe and remained there until he died a few days later. While in Santa Fe Mr Rieser attended to uncompleted work on the house, and attended, or in any event intended to attend, to packing up his goods for eventual consignment to Australia. At the time of his death the house was a building site; the work was not completed. 89 Ms Dion remained in Bali until 9 November 2006, obtaining several visa extensions to do so. Remaining in Indonesia involved short departures from that country to renew visas. She took part in a Writers' Festival in Ubud in October 2006 and gave accommodation to writers attending the festival. On 30 November 2006 Ms Dion was in Australia. While here she attended to business relating to delivery of a number of items of expensive equipment which had been ordered for work on the Taipan boat, with the object of completing production of the boat. Mark Burgmann and Gordon Wright took part in obtaining this equipment. Very detailed attention was given to acquisition and handling of the machinery in the Wish List and establishing what it was likely to cost, estimated by Mr Burgmann as in excess of $AUD23,000. Correspondence Ex B tab I shows that this was a serious and detailed project, driven by Mr Rieser's requirements and to be funded ultimately by him. A further message from Mr Burgmann to Mr Wright of 17 January 2007 showed that acquisition of a plasma cutter, a welder and aluminium feed rollers was progressing. Mr Wright asked Ms Dion to withdraw $AUD6,308 to pay for these. Ms Dion did so on or by 2 February 2007. After Mr Rieser's death she sent back goods delivered and cancelled orders which had not been delivered. She got some credits, but not in all cases. 90 Ms Dion's participation included receiving equipment delivered to the house at Broken Head and making payments for goods delivered. She received a delivery on 2 February 2007 and made a payment of $AUD6,308 for it. Throughout this period she was in constant, almost daily contact with Mr Rieser by telephone. She made arrangements to travel to the United States on 11 February 2007 to join him for the purpose of helping pack up the remainder of his goods and assisting him to finish major repairs to the house. 91 The defendants put into evidence Ex 13 tab 15, a record made by QWEST, a telephone company, of the telephone bills for November/December 2006 and January/February 2007 for telephone 505 9823039 966, at 34 Cloudstone Drive, Santa Fe. Remarkably, the name of the subscriber was Sheryl Livingstone who had not lived in the house for many years. There were very few entries which could be telephone calls to Australia. Counsel made suggestions about what can be inferred from entries, but these are no more than speculation. They were put forward as supporting a finding adverse to Ms Dion's credibility in her evidence about frequent telephone communication. They furnish no basis for that. There are other telephones in Santa Fe, including mobile phones, and she often rang him. 92 Mr Rieser's death became known through Ms Dion in Australia contacting friends, the Blairs, who lived at a neighbouring house, to check on Mr Rieser at his residence. She had been unable to reach Mr Rieser by telephone and fax message. When Mr Rieser was out of communication for a day or more, inquiries started with Ms Dion in Australia, not with anybody in Santa Fe. The Blairs knocked on the door on 5 February 2007 and were not able to contact Mr Rieser. They asked Ms Joanna Sollinger who lived at the guest house to check again. Ms Sollinger knocked on the door on 6 February and again on 7 February without any response and then contacted the Santa Fe County Sheriff's Department. Officers were let in the front door by Ms Sollinger who knew the door lock code, and they found Mr Rieser's body. The Sheriff's Department made a careful investigation and report into Mr Rieser's death and found nothing inconsistent with death from natural causes. 93 A detailed autopsy report by Ian Paul MD, Medical Investigator of the School of Medicine, University of New Mexico Health Sciences Centre in Albuquerque, based on external examination on 8 February 2007 and pathology findings, made a number of conclusions including: "This 61 year old man, Richard Rieser, died of a gastro-intestinal hemorrhage. Other significant contributing conditions included alcoholic cirrhosis."

The report noted this opinion: "Alcoholic cirrhosis or end-stage scarring of the liver is a significant risk factor for developing life-threatening gastro-intestinal bleeding.

The manner of death is natural." 94 There are (at least) two different forms of death certificate in evidence; one contains somewhat more information than the other. A short form of death certificate appears in Ex B. Important particulars in the death certificate were based on information given by Ms Dion to the Funeral Director. These include statements that Mr Rieser's usual occupation had been architect, that his kind of business or industry had been house design and that he had never married. There is a statement that he had no surviving spouse and Ms Dion as informant was described as "friend". Ms Dion's evidence explains fully and clearly why this appears in the document, and the description "friend" is not adverse to her claim that she was his de facto spouse. 95 A number of witnesses who had opportunities to know Mr Rieser and Ms Dion gave evidence. As well as being relevant to the reputation and public aspects of the relationship their evidence deals with many events which are otherwise relevant. I will review what I find to be circumstances of the relationship which are to be taken into account, and state my findings on significant matters with which their evidence dealt. 96 Mr Thomas Dion, who lives in British Columbia, is Ms Dion's brother. He gave evidence that he first met Ms Dion and Mr Rieser "as a couple" when he visited them in Sausalito and stayed in their home for about two and a half weeks in 1983. In his understanding they had rented a house there for a year after having been at sea together continuously for several years. Over the following years to 1992 he met Ms Dion when she visited their mother in Vancouver, with increasing frequency as their mother's health declined. When she visited Vancouver on her own she remained in telephone contact with Mr Rieser on an almost daily basis. During their lifetimes Ms Dion's mother and sister Keitha made frequent and extended visits to Ms Dion and Mr Rieser in Australia, in the United States, in Indonesia and also met at various vacation destinations. 97 Mr Thomas Dion's evidence was that Mr Rieser and Ms Dion came together to Vancouver for the funeral of Ms Dion's mother in 1992, and then spent a week visiting Mr Thomas Dion in North Vancouver, giving him help and support. They stayed in a hotel; Mr Thomas Dion visited them and saw that their hotel room had only one double bed. 98 Ms Dion came to Ontario and stayed with their sister, Keitha, when she was diagnosed with cancer; and stayed with her through the summer of 1995 until Keitha died. Mr Rieser came to Ontario and was with Ms Dion when Keitha died. They attended the funeral together and stayed on for a week visiting family members. During this visit Mr Rieser said in Mr Thomas Dion's hearing to the effect that he was going to move to Australia and become a resident if not a citizen. He spoke very favourably of Australia. Except for these two journeys, Mr Rieser did not accompany her on visits to Canada. 99 Mr Thomas Dion visited Ms Dion in Santa Fe in 1997. He observed that she was packing up personal belongings for herself and Mr Rieser. Ms Dion then told him that Mr Rieser was emigrating to Australia, and applying for Resident status. She also said that she was helping him pack up his things to send to Australia and to sort out what was to be sold and what was to be shipped to Australia in a container. 100 Mr Thomas Dion stayed at the holiday villa in Bali on and off for five months during 1998 and 1999 while travelling around Indonesia and Singapore. Ms Dion was present at the villa when he first arrived but left after several months. While there Mr Thomas Dion noticed that she was in telephone contact with Mr Rieser on an almost daily basis. Ms Dion told Mr Thomas Dion of Mr Rieser's plans to have a business in Australia building boats, and that he had started building a coastal patrol boat and that the business was part of gaining Immigrant status and getting residency as an immigrant investor. 101 Mr Thomas Dion gave evidence of Ms Dion's visit to Vancouver in June 2005, when he visited her for a few days in Vancouver and she told him about her need to get a passport as quickly as possible so that she could return to Mr Rieser. 102 Mr Thomas Dion remained in regular contact with Ms Dion by telephone and email, and occasionally spoke to Mr Rieser by telephone. Mr Thomas Dion gave evidence dealing with the language used by Ms Dion and Mr Rieser, in which he used the name "Emma" when speaking to her and about her. They spoke of their activities in language appropriate for a couple and behaved like people who have a close relationship. Mr Thomas Dion's evidence was that he had never seen either of them with another person in circumstances which would suggest a relationship of intimacy. It will be seen that there were only three visits during which Mr Thomas Dion encountered them together. Mr Thomas Dion's evidence corroborates and confirms Ms Dion's evidence in showing that in contacts and dealings with her close relatives about family matters she and Mr Rieser behaved as and were accepted as a couple who were living together in a long-term relationship. 103 Mr David Halberd met Mr Rieser in 1979 when sailing in the Caribbean. In 1981 Mr Halberd was sailing with Mr Rieser who was captain of the "Swan" , a 65 ft pleasure yacht operated by Mr Rieser and owned by a company he controlled. In 1981 Ms Dion came aboard the ship as one of the crew. They spent several years sailing; for some time the yacht was skippered by Mr Rieser and crewed by Mr Halberd, Mr Rieser's brother Steven Rieser and Ms Dion; however there were crew changes. They sailed on pleasure cruises, mostly in the Pacific but also in waters off Indonesia, Australia and Asia, and the voyages were sometimes of a couple of months followed by port stays for a month or a couple of months. Mr Halberd's observation or interpretation was that Ms Dion and Mr Rieser became a couple. He was in a good position to make this interpretation, as he was living and sailing in close proximity with them. In Mr Halberd's evidence they stopped sailing together about 1983 or 1984, and Mr Halberd then commanded and sailed the yacht, with Mr Rieser's approval. 104 In 1984 Mr Halberd went to live in Chile, which became the main base of the yacht. Some years later, about 1989 or 1990, the yacht was sold by the company controlled by Mr Rieser to a Chilean company controlled by Mr Halberd. Mr Halberd remained in intermittent contact with Mr Rieser and Ms Dion. He visited them in Santa Fe and stayed with them about two or three times for about a week on each occasion. One of his visits to Santa Fe was about 1986 or 1987 and one was in the winter of 1991. They visited him in Santiago about twice, and stayed with him for about two weeks on each occasion. One of their visits to Santiago was in 1984. They also visited him in Santiago individually; on one occasion Ms Dion was accompanied by a woman friend. During visits together Mr Rieser and Ms Dion shared the same bedroom. The language they used and the use of the nickname "Emma" indicated that they were in a close relationship. They were very frequently in contact with each other when separated. They gave Mr Halberd many invitations to visit them at their home in Australia, and also at their holiday villa in Bali. Mr Rieser spoke very favourably of the home in Australia and spoke of his plans to build another house there. He also spoke enthusiastically of the holiday villa in Bali. However Mr Halberd did not ever visit them in Indonesia or Australia. 105 Mr Halberd has never since 1981 seen either of them with another person in circumstances which would suggest intimacy or heard them speak of another person in terms that might suggest such a relationship. When they were separated he saw that they were in constant contact. He gave evidence in some detail of Mr Rieser's telephone and fax contacts with Ms Dion, and also with others in Europe, during Mr Rieser's visits to Chile in 2006. 106 Mr Halberd has severe health problems and other personal difficulties, with development of lung cancer during 2005 followed by surgery and chemotherapy. Mr Rieser's visit to Mr Halberd in 2006 was associated with Mr Halberd's severe adverse health. During the visit Mr Rieser spoke a great deal about his own health difficulties. He was clearly unwell and spoke to Mr Halberd of his plans to deal with illness, including visiting the shaman in Peru and obtaining stem cell therapy in Mexico. He told Mr Halberd that he proposed to return to see the shaman in Peru in March 2007 with Ms Dion, and that he had reserved places for them both. He spoke to Mr Halberd in very favourable terms of Ms Dion and his relationship with her, and in unfavourable terms about his own sister. He also told Mr Halberd of future plans to live in Australia with Ms Dion; he spoke of Australia as his home and told Mr Halberd of plans to get the last of his things out of the United States, to arrange sea containers to move everything he could to Australia, and to finish repair work on the house and move to Australia. He also spoke of his plan to emigrate to Australia, and associated with that to invest in the boat building business and market a coast guard patrol craft. Mr Halberd had also been told that Mr Rieser had some intention to move to Australia about 1996. 107 Mr Halberd was aware that Mr Rieser had issues with alcohol, and observed that when he drank more than he should he became more animated, stubborn, adamant, argumentative, talked a lot and talked loudly; he did not become violent or irrational. On the visits in 2006 he was not drinking liquor at all. 108 Mr Halberd's evidence of his observations and of the behaviour of Ms Dion and Mr Rieser from time to time over about 25 years strongly supports Ms Dion's case about their close and continuing personal relationship. 109 Mr Robert Burgmann conducted a general engineering business in Ballina, New South Wales, in 1997 and continued to conduct it until 2005. He became involved with Mr Rieser in the business venture of building a prototype work boat. Mr Burgmann was introduced to Mr Rieser by Mr Mike Davies, who had business interests in the Ballina area and did various manufacturing and design work, including manufacturing air craft and rapid prototyping; Mr Davies died about 2005. In 1997 the prototype boat was in the drawing and planning stages, with drawings done by Mr Davies under the guidance of Mr Rieser. In the period from 1996 to 1999 if not later, Mr Rieser worked with Mr Davies on three projects of developing new products. According to a letter written by Mr Davies on 13 November 1999 this involved investment in excess of $AUD1 million which was Mr Rieser's personal involvement in the work. 110 Mr Burgmann did considerable work associated with the prototype boat, involving meeting and dealing with Mr Rieser many times. He visited their house at Seven Mile Beach two or three times a year from about 1999 to 2005, to discuss business and progress on the project. Mr Rieser and Ms Dion also visited the factory in Ballina on many occasions, sometimes together, in connection with the business. Mr Burgmann's interest was primarily a business relationship with Mr Rieser. However he came to know Ms Dion and made observations about their circumstances at home and their relationship. It was his observation that they lived together in the same home, referred to each other on affectionate terms as one might refer to a partner, spoke of their activities as activities together, and were not seen in the company of anyone else in circumstances which might suggest a relationship of intimacy. They travelled together on holidays. Mr Burgmann made no close observation of the house or their accommodation. Mr Burgmann did not have a close or social association with Ms Dion but was in a position to make observations about the relationship. 111 Mr Burgmann gave evidence dealing with the boat project, which proceeded from design drawings until by about 2004 the hull had been manufactured. Mr Burgmann did considerable design and engineering work on the stern drive. Parts for ten stern drives were manufactured and two stern drives were built. The boat was to be approximately 10 metres long and was to have a crew of about three or possibly four. The boat was to be powered by two diesel engines, and the engines were purchased. Mr Burgmann worked on a gearbox for the boat which Mr Rieser designed; the gears and shafts were manufactured but the gearbox was not assembled. The superstructure has not been constructed. There were several different superstructure designs for various work duties. There were designs for bunks and a galley, although there was little room. Mr Rieser told Mr Burgmann of his plans to go to America and sell properties he had there so as to finance finishing the Taipan boat. Mr Rieser contemplated completing the boat, sailing it to Indonesia and seeking a market there for a high speed boat for chasing pirates, or for search and rescue. 112 There was an arrangement under which Mr Burgmann was to have a 25 per cent share in the venture relating to the stern drives, and also to the boat; Mr Rieser was to have a controlling interest and Val Kessler was to have 25 per cent. (Ms Kessler is referred to in very different contexts elsewhere.) Mr Burgmann met Ms Kessler on one occasion early in the project at Mr Davies' workshop. She did some work in contacting a designer in England with a view to negotiating an agreement to manufacture the stern drive in Australia. Mr Burgmann regards the boat project as viable and intends to continue with it, although the stern drive may have been overtaken by new technology. 113 Mr Rieser discussed with Mr Burgmann the tooling and equipment needed to finish construction of the vessel and asked him to put together a list. Mr Burgmann prepared the list, and proceeded to get quotes and information about supply. This is referred to as the "Wish List", and Mr Rieser and Ms Dion were working on acquiring equipment on the list when Mr Rieser died. 114 Although Mr Burgmann's encounters with Ms Dion and Mr Rieser were not social or domestic, he was in a position to make relevant observations and his interpretation of the relationship supports Ms Dion's case. 115 Ms Rae Smart is a business development consultant - Sustainable Social and Economic Business Development Consultant. She met Mr Rieser when she had business dealings with him at Broken Head; she was introduced by Mr Mike Davies, who operated Brownhouse Holdings in Ballina. She worked with Mr Rieser on projects directed towards making Australia his permanent home with Ms Dion at Broken Head; and with concentrating his assets in association with that. She worked with him in realising his investment in the house at Tin Can Bay, she did market research for the project for the Taipan boat as required over a few years, and she developed a website for the guest house at Bali. Ms Smart acted as Mr Rieser's representative in Australia when he was not in Australia, for example, in dealing with solicitors relating to the sale of property in Queensland. Their business relationship was informal and she expected to be given marketing work when the Taipan boat was ready for sea trials. This work brought her in contact with Ms Dion, at first through Ms Dion handling most of Mr Rieser's correspondence and communications. After being in contact with her from time to time over several years she first met Ms Dion around 2002 and a friendly relationship developed. 116 Ms Smart had limited opportunities to observe Ms Dion and Mr Rieser together. However Mr Rieser was very open in speaking to Ms Smart about his relationship with Ms Dion. He told Ms Smart fully his plans to live in Australia at the Broken Head farm and explained, in great detail and for hours, his extensive plans for the house, for landscaping, for dam and water systems, for construction work, for decoration which Ms Dion was to carry out. When referring to Ms Dion he spoke of her as "Emma", and "my lady". He used adulatory expressions about Ms Dion after his hospitalisations - referring to her "my rock", "she supports me in every way", "my soul mate, I would be lost without her." 117 Ms Smart did not ever observe either of them in the company of any other person in circumstances that would suggest a relationship of intimacy. It was Ms Smart's interpretation that they were as a very committed couple in a long term marriage. Ms Smart's interpretation, which I am satisfied she was in a position to make, supports Ms Dion's case, and so does her evidence about statements by Mr Rieser which show his attitude to the relationship. 118 Mr Gordon Wright worked for Ms Dion and Mr Rieser as their farm manager. When Mr Rieser and Ms Dion were considering purchase of the property at Seven Mile Beach a real estate agent introduced Mr Wright to them with a view to Mr Wright managing the property. He then lived and still lives at 745 Left Bank Road, Mullumbimby, New South Wales. 119 Mr Wright was told of their yachting and travels, and this led to much discussion as Mr Wright also had an interest in yachting. It was arranged that Mr Wright would manage the property and be a contact point. His address was used for business and banking correspondence and for contact with friends during absences overseas. It was arranged for Mr Wright to open mail and take required action, and attend to payment of accounts and banking. This continues to the present time, and he has authority to operate on a bank account. Mr Wright took part in arrangements for payments for equipment when it was delivered. The account is now at the Southern Cross Credit Union and is referred to as the Farm Account. The money in the account came from banking transfers arranged by Mr Rieser. Mr Wright charged at an hourly rate and drew his payments from the account. When Mr Rieser, Ms Dion or one of them was at Seven Mile Beach Mr Wright would be in daily contact for work, for current projects and also to socialise with them. As he observed, "They were always on the go" and had a high level of energy. He observed that their interaction was always loving and each had the ability to seek the best from the other to achieve results, and also to relax at the end of the day and enjoy each other's company over wine. 120 Mr Wright has done a great deal of work over the years on development of orchards, regeneration of native plants and on farm maintenance. The work developed into a true friendship, with social visits to the property, where he was welcome and he was treated as a confidant. Mr Rieser spoke very highly of Ms Dion - "the best thing that ever happened to me. She is my soul mate." He also said to the effect that they were going to retire on the farm together. The language they both used treated them as a couple and they spoke of the activities of both together. They had much to talk about; their shared interest in sailing, and also their interest in glider flying, in which Ms Dion participated as a pilot and also by driving the backup vehicle. Mr Wright observed that there were periods when they were in different places and that there would be telephone contact on an almost daily basis. Mr Rieser continued to speak confidingly to Mr Wright in terms which affirmed the relationship. Mr Wright saw them together at the property many times; there were also times when one or the other was there alone. He said that "It would be close to being 50/50 with one or other partner in the house". Mr Wright did not ever see either of them in the company of another person in circumstances which would suggest an intimate relationship. 121 There were plans for the citrus orchard and the mango trees to be a commercial enterprise, although they never became one as there was no-one permanently present. Mr Rieser, Ms Dion and Mr Wright took part in planting out the orchard trees. Mr Wright attended to management and maintenance tasks at the property as required. Mr Wright observed construction work at the house, the addition of the bath house, and ongoing maintenance. A shed for construction of the Taipan boat was also built at the property. Mr Wright visited Mr Rieser and Ms Dion in Bali twice, once for three weeks, once for a week; and was not in their company the whole time. 122 Mr David Allen is an architect. He now practises in Singapore but at one time he practised in Bali. He met Mr Rieser and Ms Dion in Bali at some time before 1990. While doing business Mr Rieser took Mr Allen to his house and he met Ms Dion there. They became very close friends. Mr Allen frequently visited the holiday home in Ubud; he saw the final stages of the building process. After completion he was a frequent overnight guest. They enjoyed giving generous hospitality and were a vivacious and devoted couple. He observed that they shared one bedroom. 123 At some time about 1995 Mr Rieser invited Mr Allen to visit the property at Broken Head and work on the design of a new farm homestead. This design work took almost two years to complete; Mr Rieser arranged for Mr Allen to fly to Australia a number of times over two years to work on designing the house. Mr Rieser and Ms Dion participated actively in design. When prepared the plans were submitted to Byron Shire Council, and were rejected. Mr Allen spent periods as a house guest, at one time staying for over three months. Mr Rieser built a design studio for him in an outbuilding. On occasions Mr Allen stayed in the apartment in Main Beach. Mr Allen was shown design drawings for the Taipan boat, and also observed Mr Rieser flying his Caproni glider. Ms Dion was closely involved in all his activities and Mr Rieser welcomed her company and support. Ms Dion looked after the house and cooked all meals. Throughout the period of about 20 years that Mr Allen knew them he observed that they used plural expressions when speaking of themselves and their activities. Mr Rieser spoke of her and spoke to her with the familiar name "Emmer". Mr Allen never saw them in the company of any other person in circumstances that would suggest a relationship of intimacy. When absent they were always in contact by telephone, with very long conversations. 124 Mr Rieser many times spoke to Mr Allen about a project of finalising the Santa Fe house, packing up his things and moving to Australia. He spoke about the United States with antipathy. He said, "Australia is my home and the villa in Bali is my holiday house." He spoke of wishing to be an Australian citizen and of investing in Australia in aid of obtaining citizenship. He often said that he wanted to be permanently in Australia and "I love Australia". Several times he told Mr Allen "I'm off to the States to sell my property". 125 Mr Allen last saw Mr Rieser when he visited Mr Rieser and Ms Dion in Bali in 2006 and stayed with them in their villa. He observed that their domestic circumstances continued and they still shared one bedroom. There was no point at which either said anything that indicated that they were no longer a couple. 126 Mr Allen's evidence strongly supports the long existence of a close domestic relationship, continuing during his visit to Bali in 2006, when Mr Rieser was recuperating and in poor health after several hospitalisations. 127 Ms Nancy Rieser the first defendant is the sister of Mr Rieser, three and a half years younger than he. She grew up with him in their parents' homes in Oakland and later in Orinda, California until he went to College in Santa Barbara about 1968. Ms Nancy Rieser gained a Master's Degree in Clinical Psychology and worked as a Social Worker for some years; she now works as a Research Associate in Psychiatric Research. They were in close contact until 1976. When his yachting and travels began he was in contact from time to time, usually by letters. He told her something of his travels and business affairs from time to time, but she was not aware of all his movements. From the early 1980s his communications were not frequent. She said in evidence (T232): "Q And you didn't ring him?

A No, he always called me, usually in the middle of the night and very drunk.

This evidence related to the period after their father's death in 1987. At their mother's funeral he told her, "The bottle of gin had become [my] friend." 128 Ms Nancy Rieser set out an appraisal of Mr Rieser's character in which she said among other things, "I do agree that my brother was larger than life, intense, highly creative and productive. He was extremely demanding and had little patience with women and did not tolerate fools gladly. … He spent his energy on all-consuming projects … In conversations he often interweaved quantum physics, mind-body consciousness, kharma, finance, stock markets and business and political comments." 129 Ms Nancy Rieser visited Mr Rieser while he was in hospital in May 2005 and stayed in Santa Fe for about two weeks. She arrived while Ms Dion was absent in Canada. During the visit Mr Rieser made several statements to Ms Nancy Rieser which were very hostile to Ms Dion, to the effect that he did not trust her, he did not want her recorded as his next of kin, that she was making plans for his money and that she came to Santa Fe to circle round his hospital bed like a hawk circles a dying rat in the desert. At this stage Mr Rieser was in intensive care and had difficulty in articulating. It is Ms Nancy Rieser's interpretation that he was paranoid, very suspicious and hallucinating, "going in and out of lucidity". Obviously he was talking with more colour than sense, as Ms Dion had been in Santa Fe for months before he went to hospital. Ms Nancy Rieser's college studies included clinical psychology, and she interpreted what he said as paranoia; I regard it as obvious that it was. About that time he made statements to Ms Dion which were extremely hostile to Ms Nancy Rieser. I make the same interpretation about these statements; distorted thinking by a man who had destroyed his health by alcoholism and was spending an extended time in hospital, where he did not want to be, with life-threatening disorders. It was dangerous to be absent when the mood for vehemence took him. The way he spoke on these occasions was not a good test of his feelings towards anybody. 130 It is Ms Nancy Rieser's evidence that it was during this visit that she met Ms Dion for the first time. Mr Rieser mentioned at their mother's funeral that he had a girlfriend. After meeting Ms Dion at the hospital in Santa Fe in May 2005 Ms Dion invited her to Mr Rieser's home where she stayed for about four days. Ms Nancy Riesner denies that she met Ms Dion at her late father's funeral in 1987. 131 Ms Nancy Rieser gave evidence of conversations with Mr Dion during this visit in which Ms Dion spoke about Mr Rieser and her relationship with him, and her expectation of provision by him, and gave markedly different views at different parts of the conversations. Ms Nancy Rieser gave evidence of some rather severely adverse statements about Mr Rieser made by Ms Dion to her, that their romance had come to a standstill, that she was always living at the edge of his life, that she was no longer the centre of his emotional world, and hostile expressions. In Ms Nancy Rieser's interpretation they were estranged, Ms Dion had nothing but awful things to say about him, and it was not a very happy relationship. 132 This conversation was disputed. I do not find it hard to accept that Ms Dion had adverse things to say about Mr Rieser in this time of crisis. If these things were said they have to be put in the context of the extreme events which were taking place, in which Ms Dion was giving Mr Rieser all her support, managing his hospitalisation, living in the house in North Cloudstone Drive, and able to invite Ms Nancy Rieser to stay there. Whatever she said, the relationship, happy or not, plainly continued. 133 When Mr Rieser spoke about the farm and house at Broken Head to Ms Nancy Rieser, he did not show any enthusiasm for it. In relation to a personality like his, I do not find it surprising that he presented different pictures of his activities, his interests and his personal relationships to different people. 134 Ms Nancy Rieser's evidence shows how the relationship between Ms Dion and Mr Rieser appeared to her. In my finding Ms Nancy Rieser showed from the terms of her evidence and manner of giving it that she felt antipathy towards Ms Dion. There is no love lost either way. I do not regard Ms Nancy Rieser as altogether reliable in statements she has attributed to Ms Dion. 135 Mr Thomas John Rieser is one of Mr Rieser's two brothers, 18 years younger. He met Ms Dion on two occasions during the 1980s when she accompanied Mr Rieser on visits to his parents in California. Mr Thomas Rieser came to know that they travelled together a great deal. Over many years Mr Thomas Rieser continued contact with Mr Rieser, mainly by telephone. Thomas Rieser was told of the Taipan boat, but not in a great deal of detail. About 1999 he visited Mr Rieser when he was in St Vincent Hospital in Santa Fe; he was in hospital for about a week and Mr Thomas Rieser visited him every day. After a few days Ms Dion attended from Australia. Before Ms Dion arrived Mr Thomas Rieser sent several fax messages to persons in Australia about Mr Rieser's business affairs. When Mr Rieser was discharged from hospital Mr Thomas Rieser stayed with them in the house at North Cloudstone Drive. Mr Thomas Rieser visited Mr Rieser in the house in Santa Fe in 2002. Mr Steven Rieser and his wife were present, as was Ms Dion. Steven Rieser and his wife slept in the guest house. Mr Thomas Rieser said that after a discussion about sleeping arrangements he used the second bedroom which Ms Dion had earlier occupied and she moved into the master bedroom; most of her clothes and personal items were in the second bedroom. The toiletries and clothes were in the adjoining bathroom. He stayed for about a week. He did not see Mr Rieser again but he had phone contact with him two or three times a year, more frequently in 2005, the year Mr Thomas Rieser was married. Mr Thomas Rieser and his wife stayed at the house in Bali after they were married in 2005; neither Mr Rieser nor Ms Dion was there, and arrangements were made by telephone, involving conversations with both of them. Mr Rieser did not ever tell Mr Thomas Rieser that he wanted to live in Australia or obtain Permanent Resident status or citizenship. He did not ever tell Mr Thomas Rieser that he was going to ship all his personal belongings to Australia. 136 Mr Thomas Rieser's evidence is that after Mr Rieser died he travelled to Santa Fe and stayed in the house in North Cloudstone Drive with Steven Rieser and Ms Dion. He says, "I was there for two weeks and had many conversations with Emma and Steve". He says that in one conversation she said to this effect, "I had to fire the cook in Bali because Ace was sleeping with her" and on another occasion she said to Steven Rieser "Ace was not faithful. He had a relationship with another girl in the States." She frequently spoke deprecatingly about him. 137 Mr Thomas Rieser's evidence was that he found no possessions, mementos or photos of a shared life in the house at Santa Fe after Mr Rieser's death, but after a considerable search found a few snapshots of them travelling together in past years in a filing cabinet. There were no personal possessions of Ms Dion there apart from those she had brought with her on the journey. 138 In my finding there was not a particularly close relationship between Mr Rieser and Thomas Rieser; they did not meet very often although there was continuing contact, and Mr Rieser did not tell his brother a great deal about his many projects and business affairs. 139 Mr Steven Rieser is the elder of Mr Rieser's brothers, about 11 years his junior. He met Ms Dion in 1981 or 1982 in Singapore; she was sailing through on a yacht. She met Mr Rieser and joined the crew on Mr Rieser's yacht about six months later, and Steven Rieser and she worked on that yacht for about 20 months. Mr Steven Rieser says that she and Mr Rieser travelled extensively as a couple for the first five or six years of their relationship. Mr Steven Rieser left and went back to the United States. Later he sailed on the yacht again but Mr Rieser and Ms Dion were no longer on it. Then Mr Rieser started building the villa in Bali which took many years. Mr Steven Rieser kept regular contact with Mr Rieser, usually by telephone, with meetings from time to time. They spoke about personal news, travels and what each had been doing. It is Steven Rieser's evidence that Mr Rieser told him about 1996, "I have a place in Aspen and I have a girl there. I used to go there regularly to see her for a couple of years." He also said that they had a very active and passionate relationship. 140 On what Mr Rieser told his brother, if it was true, he saw the woman in Aspen on visits there over a couple of years, but had ceased to do so by 1996. There is no indication elsewhere that he did in fact ever own property in Aspen. 141 Mr Steven Rieser gave evidence of a visit by himself and his wife to Mr Rieser at the house in Santa Fe for a holiday when they stayed for about 14 days and Ms Dion was not there. Mr Rieser told Steven Rieser that he was working on and off over two years in a production company doing commercials for Qantas; and also that he was designing a patrol boat. He gave Steven Rieser an account in which he lived in a condominium in Surfers Paradise on his own and Ms Dion visited from time to time when her Indonesian visa expired and she had to leave the country to get it renewed. At this time Mr Rieser was drinking a great deal; he would wake up at 11 am and drink neat vodka. However, he was still able to trade stock over the telephone. 142 Mr Rieser telephoned Steven Rieser and got his assistance during a medical crisis at some time in the late 1990s; this led to Mr Steven Rieser contacting the local fire department in Santa Fe who broke into the house, found Mr Rieser barely alive and took him to St Vincent Hospital. 143 When Mr Rieser spoke to Mr Steven Rieser by telephone from Santa Fe he would often say where Ms Dion was, that she was in Bali or in Australia. Mr Steven Rieser gave an account of the sleeping arrangements during the visit to Santa Fe in 2002 generally similarly to that given by Mr Thomas Rieser. He gave an account in evidence of a strange event in which he heard the report of a gun during the night. In the morning he saw a gunshot mark on a picture on the wall and Mr Rieser said, "I fired the 45 over her head to stop her snoring." Ms Dion emphatically denies that there was any such event. There was some debate during the hearing about the significance of a mark on a photograph of a framed picture which could be caused by a gunshot; if it is it does not corroborate what Mr Steven Rieser said. I am not satisfied on the probabilities that the gunshot event happened or that Mr Rieser gave the explanation attributed to him. If it did happen I cannot see what impact that would have on the issues before me; it would add to indications elsewhere that Mr Rieser was an extremely difficult personality. If it really did happen he was more than difficult, he was deranged. 144 Mr Steven Rieser gives an account of a conversation with Ms Dion at Santa Fe after Mr Rieser's death to a similar effect to that given by Mr Thomas Rieser, in which she said to him, with profanities, that Mr Rieser had been "…… screwing the cook at our Bali place." He also said that Ms Dion (not, in this evidence, Mr Rieser) had told Steven Rieser and Thomas Rieser that Mr Rieser had affairs with other women including sharing a condominium in Aspen with a woman. He also gave evidence of there being no significant possessions of Ms Dion at the Santa Fe house. 145 Mr Rieser did not speak to Mr Steven Rieser about plans to apply for Australian citizenship or residency; except to tell him that he had applied for Permanent Resident status and had been refused. Mr Rieser did not tell Steven Rieser about his plans for building a house in Australia. 146 Mr Rieser's relationship with his brothers was of low intensity. He did not tell them or did not tell them much about projects which were in the forefront of his mind and on which he spoke to other people at great length. 147 Mr Lee Deschamps is an attorney of long standing and now practises in Socorro, New Mexico. He also does business as a general construction contractor. He first met Mr Rieser at his home at Santa Fe in 1995 to consider contracting to build an access road to property Mr Rieser owned in Taos County. The road was about 90 metres long but the project was complicated and difficult and it took about three years to complete design, surveys and construction, followed by construction of metal gates designed by Mr Rieser. Mr Rieser told Mr Deschamps that the two properties were held by different entities, Safeco and Leckerman, but were his and purchased with his funds. He told Mr Deschamps that he had obtained restrictive covenants against development of neighbouring land for the benefit of a residence which he intended to build there some time in the future. 148 Mr Deschamps also conducted some legal business relating to a dispute with Sotheby's relating to their management of repair and renovation work on the house in Santa Fe. Mr Deschamps handled other business for Mr Rieser on a few occasions including consideration of a possible lawsuit against Sotheby's relating to their management of the house in Santa Fe, repair work which was to be done on it but which was not satisfactorily completed, and consideration of listing it for sale. The Sotheby's dispute required attendances over several years round about 2000. In the course of this Mr Deschamps encountered Ms Val Kessler who had some dealings with Sotheby's in Santa Fe on behalf of Mr Rieser. Mr Deschamps also met Mr Rieser on three or four occasions attending to arrangements to list the land in Taos County for sale; however there has never been a sale. Mr Deschamps had other minor involvement with legal business for Mr Rieser. 149 Mr Deschamps did not ever deal with Ms Dion at any time in the course of dealings with Mr Rieser over 10 years or so; she was present on one occasion when she prepared lunch for them at the Santa Fe residence but did not join them for the meal. Mr Rieser referred to Emmer as his travelling companion on one occasion but did not speak of her in terms which suggested they had a permanent ongoing relationship. Mr Deschamps encountered other women companions at the Santa Fe residence and at Taos on several occasions. 150 Two witnesses, Mr Stowers and Mr Borgelt, gave evidence, which was not challenged by cross-examination, of fairly close and extended associations with Mr Rieser, starting when he stayed near Minden, Nevada in 1983 and relating to their shared interest in gliding. These witnesses observed no significant participation by Ms Dion in his gliding activities, and little participation in his life; she was sometimes with him, and she was spoken of only incidentally. Mr Borgelt met Ms Dion once briefly at a National Soaring Society Convention in Reno, Nevada. He spent every evening for some weeks with Mr Rieser in a shack he was renting in the mountains while building his house in Bali. Ms Dion was mentioned only in passing, and was not spoken of as his partner. Mr Rieser "… always talked only about himself and his possessions …". Mr Borgelt formed the view that Ms Dion "… was some kind of girlfriend of [Mr Rieser] for sometime", not in a de facto relationship or marriage. Mr Borgelt's association with Mr Rieser continued in Australia over many years until 1999, in association with their shared interest in gliding, with associated conversations and social meetings in which there was little or no reference to Ms Dion, mentioned in passing as "Emma". Mr Stowers is in business in Minden. In 1983 he sold Mr Rieser two sailplane trailers. He saw Mr Rieser frequently over the next two years or so, and again during a Soaring Safari for two weeks about 1989 or 1990. Ms Dion was sometimes with Mr Rieser, but he was usually alone and her involvement in his life did not seem close. Mr Stowers said "I just assumed that she was his girlfriend." 151 An aspect of Mr Rieser's life for many years, and also of Ms Dion's life, was almost ceaseless journeying, with few sojourns in any one place for more than a few months. In appraising their relationship, where they were and what they did, this long-established characteristic behaviour is a prominent consideration; a basal characteristic of the relationship. Many of these journeys were together; many were not. They travelled to a very wide range of places in the Americas, the Caribbean, the Pacific, Asia, Africa and Europe. They travelled together to Chile four times, and visited David Halberd. Although there were very many times when they were physically apart, it was an aspect of the relationship that this often occurred, that they took journeys and holidays, and that they then returned to be together. It is difficult to say where their household was; but Broken Head, Bali and Santa Fe were places to which they recurringly returned. They went to Santa Fe usually about once each year, rarely for longer than a month. Photographs in evidence illustrate their association over many years. Throughout many years they did not stay together at any place for long periods, and it is unlikely that they stayed anywhere for more than a few months at a time. In the course of all this travel and movement, they were often separated; but they were also often together in the same place, either on a journey or returning to one of their more fixed points. When they were apart the relationship continued by telephone. After their journeys they were always together again. These remarkable and strange circumstances do not in my judgment preclude a finding that for many years, and in particular for the last period of Mr Rieser's life, they were living together as a couple; this notwithstanding that there were many separations and that the last of them was as long as eight months. There was no terminating event or rupture in the relationship. 152 Mr Rieser was able to enter and remain in Australia only by obtaining a visa for each entry, with limitations on how long he could stay and what he could do. He could not lawfully stay in Australia for an indefinite time because he did not have Permanent Residency; it had been refused. The only country in the world where he could stay without official permission was the United States. Ms Dion could stay indefinitely in Canada and also in Australia, but not in the United States. She chose not to reside permanently in Australia for reasons related to taxation which impelled her to leave from time to time and re-enter. 153 Passport stamps show travels to a quite remarkable number of places. It is difficult indeed, and except for the last two or three years it is not possible to establish and to make findings on where each of Ms Dion and Mr Rieser were from time to time, what periods they were together, and what periods they were physically apart. The locational aspects of their relationship over the last two or three years must be considered when deciding whether their de facto relationship still existed when he died. Recurring realities of their relationship were that they always came back together and remained together and that they were in continual communication when apart. There was continuous concern for and involvement in each other's emotional life and wellbeing. These things show a very strong emotional bond in their relationship. There is no substantial evidence against this view of the relationship. 154 Attempts to establish the movements of Ms Dion and Mr Rieser over the years and to identify at what times they were both present in Australia and can have been living together at Broken Head have not led to reliable conclusions. A table of movements of Ms Dion and Mr Rieser from 1990 onwards was prepared by Ms Dion - Ex B letter L. This table is not reliable and there may well have been other movements. Passport stamps are not always legible; passports are not always stamped. Movement records maintained by the Department of Immigration when produced were accompanied by a rather guarded certification on behalf of the Department which does not establish that they can be relied on to be complete. I regard the evidence of Ms Dion as generally reliable, although my confidence does not go to high detail about dates of movements. She says in evidence that she and Mr Rieser spent many months together in Australia and were together in Australia many times during 2003. The detailed narration starts only in 2003; they were present together in Australia on many occasions earlier, from 1984 onwards. 155 The statement by the Department of Immigration and Citizenship relating to production to information on subpoena states (Ex 13, page 149): "A thorough search of the Department's records has failed to find any other material specified with regard to the schedule."

The answer also lists five files which could not be provided because they had been destroyed or could not be located. I am not prepared to regard analysis of immigration records or stamps on passports as conclusively establishing whether one or other was in Australia at a particular time, or for how long. The records may be incomplete; they may be difficult to follow. They have some value but they are not conclusive. 156 At the time of Mr Rieser's death the two had not been present in the same place for about eight months. However they had been in continual contact, and they had attended to concerns in which they both had interests. Mr Rieser's purposes for being in Santa Fe included his project, long declared but never finished, of putting the house in repair, selling it, packing up his goods and moving them and himself to Australia. Ms Dion's presence in Bali related to the use of the house and guesthouse there, and her presence in Australia was closely related to his projects, particularly his boat project. 157 Ms Dion says in her affidavit of 2 December 2008 that by 24 September 2004 Mr Rieser and she spent many months together in Australia. She said: "We were together in Australia many times during 2003." Immigration records do not bear this out fully but they do bear out that after earlier visits to Australia in 2003 which did not coincide, Mr Rieser was in Australia from 13 October 2003 to 6 January 2004 and Ms Dion was here from 29 November 2003 until 24 September 2004. Mr Rieser came back to Australia on 2 September 2004 and remained until 1 December 2004. So these records show that they were both present in Australia from 29 November 2003 until 6 January 2004 and from 2 September 2004 to 24 September 2004. Ms Dion remained in Indonesia until 18 December 2004. During this time she attended to having roof work carried out on the main house; reworking the grass roof (or thatch) and reworking the electricity cables and lightning protector system. She did this by arrangement with Mr Rieser who told her, "You do the roof and I will organise the next step. I'm finishing the boat with Mark Burgmann." That is, in accordance with his plans and wishes she attended to the house in Bali and he remained in Australia to deal with his boat project. 158 The relationship between Ms Dion and Mr Rieser, however it is to be classified, was of very long standing. She said in evidence that it existed for 25 years; the question when a de facto relationship as defined commenced is difficult to answer in an exact way. Whatever might be the right classification for the early years, I find that by the time her divorce took effect Ms Dion and Mr Rieser were strongly emotionally involved together in a loving relationship, involving close attention to and concern for each other's welfare and projects. There was also a considerable degree of involvement in each other's business and economic affairs; however this was far from complete involvement. Ms Dion was never given a full picture or complete understanding of Mr Rieser's assets. She was however deeply involved in his economic life. He arranged to provide most of the money which went into purchasing the house at Broken Head; she also provided a significant amount and she became the registered proprietor of the house. She was also nominated as the beneficiary in the trust arrangements made in 1987 for the shares in Leckerman Enterprises Ltd. 159 Mr Rieser cannot have been an easy person to live with, to love or to like. For many years he drank to excess. At the St Vincent Hospital he gave histories of heavy drinking. He told his sister and one of his brothers that the bottle had been his friend since his father died, which happened in 1987. Eventually this destroyed his health, as it must. Witnesses who had business dealings with him spoke of communication difficulties arising from his tendency to talk on, for two hours or so, across a wide range of subjects as well as dealing with the business with which the witness was concerned. This must have been an unwelcome aspect of business contacts with him, but did not prevent the business contacts from taking place; he was worth dealing with. 160 As time passed and particularly in the last years, Mr Rieser's life became littered with failed projects and uncompleted projects. Business in hand which did not come to a conclusion included notably design and construction of the new house at Broken Head, the Taipan project, orchards at Broken Head, repair of the house at Santa Fe to prepare it for sale, selling it and packing up and shipping his goods. Long-held and long-expressed plans and projects did not come to completion, but they were not abandoned. It is not surprising that there is evidence that Ms Dion sometimes spoke adversely of Mr Rieser, in forceful terms. It would be strange if she had been perfectly contented in the circumstances. The continuation of Ms Dion's involvement with him indicates great strength in the relationship and its emotional basis. I find, and there is no real evidence to contrary, that they had a continued loving and deep emotional bond with each other, for many years. 161 More significant than the uncompleted state of Mr Rieser's projects in his last years after the film company failed is Ms Dion's continued involvement in them. This extended to her economic involvement, although she was never given a full understanding of his assets and his business affairs. She was involved in the acquisition of the Broken Head house, and although he arranged most of the purchase money, she made a significant money contribution herself. She was involved in the planning for a new house there, although it never proceeded to construction. She was involved in preparation for orchard ventures there, which were not completed. She was involved in and owned the lease of the house and land in Bali, and took part in the construction of the house, and also in its repair. She was trusted with managing business and taking delivery of machinery for construction of the Taipan boat, and with paying significant sums of money for it. There was never any break or termination of her involvement. 162 The definition in s 4(2) requires me to take into account all the circumstances of the relationship, and includes in those circumstances a number of matters which require to be considered. I have already addressed a great deal of the circumstances, but I will make some further observations framed on the matters listed in s 4(2) and the definition.

(a) The relationship continued for well over 20 years. In the first years it was qualified by there being some continuation of Ms Dion's relationship with her husband, but by the time of the divorce proceedings in 1985 that had completely ended.

(b) There were three common residences, in Broken Head, New South Wales, in Ubud, Indonesia and in Santa Fe, New Mexico. In the early years there were other places. They spent significant periods together at each of them, but their many travels meant that they were often apart. It is significant that, notwithstanding the travelling and the separations, they continually returned to be together at one or other of these three places. They often pursued activities and interests which took them in separate directions, particularly after about 1996. However they remained in communication at all times, there were never long intervals, and after, at the most, a few weeks or a few months, they always returned and were together at one of their three locations, approximately annually in Santa Fe and more frequently at Broken Head or at Ubud.

(c) There was a sexual relationship. This is unlikely to have continued into the final years when Mr Rieser was usually in states of health varying from poor to severely adverse.

(d) The degree of financial interdependence was high. Mr Rieser was the major contributor of resources, from sources which cannot be seen. In indirect ways he provided most of the funds for the house in Broken Head, and the funds for the house in Santa Fe. As well as working on his own projects he derived income from work on design and consulting work for clients, in Australia, Thailand and elsewhere, designing houses, villas and boats. Ms Dion was deeply involved in his affairs as the holder of assets which he used at Broken Head and in Indonesia. At one time she had resources of her own; Ms Dion worked as a food and travel writer between 1980 and 1993. However, his resources were the mainspring at almost all times. There was no clear arrangement; it would not be like him to have one.

(e) I have reviewed through this judgment the facts in evidence relating to the ownership, use and acquisition or property. They strongly support the conclusion that there was a de facto relationship.

(f) In assessing the degree of mutual commitment to a shared life it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints and grievances and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with mutual commitment to a shared life. The significance of qualifications of these kinds appears from passages in Basten JA's leading judgment in Robson v Quijarro [2009] NSWCA 365 at [14]-[16], and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65 at [120]-[124].

(g) There were no children of the relationship. It is Ms Dion's evidence that she lost a baby, meaning that she conceived and miscarried while living in Minden, Nevada, which was in 1987. They sponsored 11 children to the Suta Darma School in Ubud, Bali. This is not care and support of the kind to which s 4(2)(g) refers.

(h) For the periods they were together, the evidence about performance of household duties supports Ms Dion's case.

(i) The relationship was open and unconcealed. The relationship was known to Mr Rieser's relatives, although he did not present it in a positive way to them. The relationship and its nature were open and well understood by Ms Dion's relatives, and by friends and business associates with whom Mr Rieser and Ms Dion had much more intense interaction than with his own relatives. 163 It is a striking fact that when Mr Rieser died he and Ms Dion had not been together in the same place or even on the same continent for about eight months. There is no substantial evidence of any intention on either side that the relationship should come to an end; their separation was not brought about by any such intention. Nor is there any evidence of some terminating event which could be thought to have signalled the end of the relationship. Quite otherwise, there was continuing frequent contact and there were plans and actual arrangements for Ms Dion to rejoin Mr Rieser in February 2007 and for them to travel to Peru together in March. 164 There are conflicts of evidence between Ms Nancy Rieser and Ms Dion and Steven Rieser and between each of the brothers and Ms Dion about various conversations and circumstances. These include statements attributed to Ms Dion about her former husband Mr Bull, and about her relationship with Mr Rieser which, if true, would show that not all events in the relationship with Mr Rieser were positive or satisfactory, and that she sometimes spoke unguardedly about them. I do not regard these aspects of the evidence as of high importance; the main thing that they show is that there was and is no love lost between Mr Rieser's relatives and Ms Dion. There are starkly different accounts of what Ms Dion said about the relationship between Mr Rieser and the cook in the Bali house. I regard it as unlikely that she gave the account that Mr Rieser actually did have a sexual relationship with the cook. She did know of one affair that he had during the 26 years that she says they were together: "I knew he had a girlfriend but he never called her by name" (T228). So far as she knew, Mr Rieser never had a condominium apartment in Aspen. I do not regard the stories about these relationships with other women as important, if they are true, in the same way as one swallow does not make a summer, nor do two. 165 My conclusions are these. While recognising how unlike the present case is to any other which I have encountered, my determination is that at the time of Mr Rieser's death their relationship was a de facto relationship as defined in s 4 of the Property (Relationships) Act 1984. When Mr Rieser died he and Ms Dion were each sole partner in a de facto relationship with the other in that though they were not married to one another or related by family they lived together as a couple. Ms Dion was his de facto spouse within the provisions of s 32G of the Probate and Administration Act. Neither was a partner in any other de facto relationship. Mr Rieser left no issue. His estate, or so much of it as passes under the law of succession of New South Wales, is held in trust for Ms Dion absolutely. I will make a declaratory order to this effect. With this declaration, it is clear that her application for Letters of Administration in Common Form should be granted. I will refer her application to the Registrar of Probates to complete. 166 I have not yet considered questions of costs. 167 Orders (1) Declare that the plaintiff Margaret Anne Dion was the de facto spouse of the late Richard Davis Rieser the intestate at the time of his death and is entitled to the real and personal estate of the intestate in accordance with Section 61B(1) and (2) of the Probate and Administration Act 1898. (2) Reserve costs. **********

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Judgment (54 paragraphs)

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Cases Cited (9)