MATTER : Inheritance (Family and Dependants Provision) Act 1972

ANTHONY JOHN BAXTER (As Executor of the Estate of PAUL DOUGLAS BAXTER (DEC))

Inheritance (Family & Dependants Provision) Act - Whether applicant "de facto widow" - Turns on own facts

Inheritance (Family and Dependants Provision) Act 1972, s 7(1)(f)

Aylmore v Durak, unreported; SCt of WA; Library No 2169; 7 October 1977

Bowers v McGann, unreported; SCt of WA; Library No 960195; 17 April 1996

Hughes v National Trustees, Executors and Agency Co of Australia Ltd [1979] HCA 2; (1979) 23 ALR 321

McKenzie v Falconer-Brown (1990) 3 WAR 438

Perger v The Public Trustee, unreported; SCt of WA; Library No 970071; 26 February 1997

Re Paulin [1950] VicLawRp 74; (1950) VLR 462

Re Smallwood; Smallwood v Martins Bank Ltd (1951) Ch 369

Re Taylor (1968) QDR 385

1 MASTER SANDERSON: This is an application brought under the provisions of the Inheritance (Family and Dependants Provision) Act 1972 (the Act). The deceased, Paul Douglas Baxter, died in a motor vehicle accident on 14 December 2000. The first defendant is the executor of the deceased's will. The second to fifth defendants are beneficiaries under the will. The plaintiff claims that she is the de facto widow of the deceased. It is on that basis that she makes her claim.

2 Section 7(1)(f) of the Act is in the following terms:

"An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons -

...

(f) a de facto, widow or widower of the deceased who at the time of the death of the deceased was being wholly or partly maintained by the deceased, who was ordinarily a member of the household of the deceased, and for whom the deceased, in the opinion of the court, had some special moral responsibility to make provision."

3 (This section was repealed by the Acts Amendment (Lesbian and Gay Law Reform) Act 2002. That Act came into effect on 21 September 2002. However, for the purposes of this application it is s 7(1)(f) of the Act which is relevant.)

4 There was no dispute between the parties as to the approach to be adopted to this rather curious provision. In Ingamells v Western Australian Trustees Ltd, unreported; FCt SCt of WA; Library No 930117; 5 March 1993 the Full Court (Malcolm CJ, Rowland and Ipp JJ), after quoting the section, said (at 4 to 6):

"In Aylmore v Durack, unreported; SCt of WA; Library No 2169; 7 October 1977, Wickham J expressed the view that the term 'de facto widow' was 'logical nonsense' and was therefore likely to have been used by Parliament in a colloquial and popular sense. In that case, his Honour contrasted the opposing arguments submitted to him by counsel for the executor and counsel for the plaintiff. He said:

'The submission was that for her to qualify as a de facto widow, there must have been a union which involved every incident of Christian marriage (except the lawful celebration thereof) including the subjective element of a mutual intent of a lifetime of exclusive cohabitation. The other view is that the term de facto widow was used by the Parliament in a colloquial and popular sense as meaning the survivor of a relationship which to outward appearances was that of a married wife and not necessarily involving the subjective element referred to.'

His Honour preferred the latter and, in addition, he said:

'Further, the additional qualification to de facto widow necessary for standing tends to indicate that the term is intended to extend to a woman enjoying all the outward appearances of marriage other than a lawful ceremony if the specific conditions are present.'

In Re Harding (deceased); Thornton v Perpetual Trustees WA Limited and Ors [1983] WAR 266, Brinsden J endeavoured to obtain some assistance from reading the Parliamentary debates when the Act was introduced, but he was unable to obtain that assistance and adopted the construction placed on the section by Wickham J. It is apparent, from reading these decisions, that it is necessary to show that, at the time of death of the deceased, the two were living together as part of the same household as if they were married, but without the lawful celebration of a marriage and without necessarily having a mutual intent of a lifetime of cohabitation. We would not regard it as necessary to establish that the parties were thought by others to be man and wife. If that be the case, then no doubt it could be used as evidence to support the finding sought. It would not, however, be conclusive.

Regard must be had to the entire relationship. This is encompassed by the succinct remarks of Kirby P, in AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591 at 593, who described de facto relationships as:

'... the relationships between persons who, though not legally married live together sharing domestic circumstances and bound by affection and, usually, sexual relations.'

The need to examine all the circumstances of each individual relationship to determine whether a man and woman lived together as husband and wife, despite the absence of a formal marriage, was emphasised in Lynam v Director General of Social Security (1983) 52 ALR 128. In the latter case Fitzgerald J considered whether the relationship between a man and a woman was such that, although they were not legally married, they were nevertheless living together 'as husband and wife on a bona fide domestic basis.' At 131 his Honour, after pointing out that, in Lambe v Director General of Social Security [1981] FCA 171; (1981) 38 ALR 405, the Full Court of the Federal Court had stated that all facets of the interpersonal relationship need to be taken into account, said:

'Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test.'

See also Pavey v Pavey [1976] FLC 90-051 where the Full Court of the Family Court stated at 75,211 - 75,212 that:

'The constituent elements of a marital relationship would include dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships and the nurture and support of the children of the marriage.'

We would, with respect, add to those constituents the elements of mutual affection, caring and the sharing of material resources.

Finally, as was pointed out by the Full Court of the Family Court in L v L [1984] FLC 91-563 at 79,545 '... not all these [constituent] elements need be present before a consortium vitae can be recognised as such.' "

5 At first instance in Ingamells v West Australian Trustees Ltd, unreported; SCt of WA; Library No 9203; 19 December 1991, White AJ (as he then was) noted that subs 7(1)(f) of the Act had to it four aspects. His Honour said at 3 the plaintiff must establish, on a balance of probabilities that:

"1. he is the de facto widower of the deceased;

2. at the date of the death of the deceased he was being wholly or partly maintained by the deceased;

3. he was ordinarily a member of the deceased's household, and

4. the deceased had some special moral responsibility to make provision for him."

6 It might be thought that requirements (2) and (3) would fall to be considered when determining whether the plaintiff was the de facto widower of the deceased. Why the legislature should have given these two matters particular attention is unclear. It is also not clear what is meant by "some special moral responsibility". How does a "special" moral responsibility arise as against an "ordinary" or "non-special" moral responsibility? Brinsden J considered this question in Re Harding (Dec); Thornton v Perpetual Trustees WA Ltd & Ors [1983] WAR 266. His Honour's conclusions are admirably summarised by the headnote:

"The distinction being made by the use of the phrase 'special moral responsibility' was no more than one between the general moral responsibility which the community might consider falls on the shoulders of any man who has been living with any woman as contrasted with the moral responsibility which arises out of the circumstances of the particular two people and special to those circumstances. In this respect the nature, length and quality of the particular co-habitation were relevant."

7 What is striking about this case is the paucity of evidence adduced by the plaintiff. The application was supported by an affidavit of the plaintiff sworn 22 October 2001. The plaintiff swore two further affidavits, one on 4 April 2002, the other on 31 July 2002. Both of these affidavits were responsive, in the sense that they were filed to answer matters raised by affidavits filed on the part of the defendants. In addition to these three affidavits sworn by the plaintiff there was filed in support of the application an affidavit of Luke Michael Forrester (the son of the plaintiff) sworn 31 July 2001 and an affidavit of Valerie Joy Hambley ("Ms Hambley"), sworn 2 April 2002. The affidavit evidence of the plaintiff was supplemented by further limited oral evidence. The three deponents of the affidavits filed in support of the application were cross-examined - in the case of Luke Michael Forrester and Valerie Joy Hambley only to a limited extent.

8 It is of course axiomatic that in an application such as this it is for the plaintiff to establish, on the balance of probabilities, that she satisfies the requirements of subs (7)(1)(f). In my view, based upon the evidence led by the plaintiff, she has failed to discharge that onus.

9 The plaintiff is presently 31 years of age. She met the deceased in Kalgoorlie on 12 October 1999. The plaintiff and the deceased were attending the wedding of a mutual friend. In her affidavit of 22 October 2001 (par 6) the plaintiff says that the deceased spent the night of the wedding at her home in Kalgoorlie. She subsequently corrected this and her evidence was to the effect that the deceased did not spend the Saturday night of the wedding at her home, but did spend the subsequent two nights with her. He returned to Mt Barker on the Tuesday. Thereafter, the plaintiff says, the deceased rang her on a daily basis in an attempt to persuade her to take up residence with him in Mt Barker. That is what she did. Precisely when she moved from Kalgoorlie to Mt Barker is not clear from the evidence. It would seem that it was some time in November 1999. It was certainly prior to Christmas of that year. At the date of the move the plaintiff was accompanied by her 10-year-old son, Luke.

10 The plaintiff's marital status, when she left Kalgoorlie, is not in evidence. Luke's father presently resides in Queensland. Whether the plaintiff and Luke's father were ever married, indeed whether they are still married was not addressed by the evidence. Nor is the question of the plaintiff's domestic arrangements in Kalgoorlie addressed.

11 In her affidavit of 22 October 2001 (par 8) she states that prior to leaving Kalgoorlie she was "employed full time ... as an office assistant doing secretarial duties and taking orders with Steelmark." In her affidavit of 4 April 2002 she corrects this evidence. She says (par 12):

"As to paragraph 14 (of the affidavit sworn jointly by the third and fourth defendants) in relation to my employment with Steelmark it is true that I resigned full-time employment on 21 August 1998 but about one week later I was re-employed part-time as that suited me better with the commitments I had in respect of looking after my son Luke and I continued in that part-time employment with Steelmark until I resigned in October/November to go and live with the deceased as stated in paragraph 6 of my original affidavit".

12 There is a complete lack of evidence from the plaintiff as to the basis upon which she and the deceased lived when she and her son moved to Mt Barker. It would seem initially the couple resided at a property owned by the deceased at Eaton Avenue. There is no evidence as to whether or not they shared a bedroom; there is no evidence as to who cooked the meals, who cleaned the house, who did the shopping, who did the washing and ironing and who maintained the property. There is not even any evidence that the plaintiff and the deceased maintained a sexual relationship, although that is perhaps to be implied from the general tenor of the evidence. All that is said by the plaintiff about her domestic relationship with the deceased is as follows (at par 7 of her first affidavit):

"The deceased and I lived as de facto husband and wife and the deceased introduced me to his friends and his family on that basis, the deceased being nicknamed 'Piggy' and myself being known as 'Lea'. We intended to become engaged in December 2000 and to marry around April 2001."

13 Leaving to one side the inadmissible conclusory introduction to that paragraph, no explanation is given as to precisely how the deceased introduced the plaintiff to his friends. It was clear from the evidence of all witnesses that the deceased did not actually refer to the plaintiff as his "de facto wife". The use of such a phrase in ordinary parlance is hardly to be expected. However, there is scant evidence as to how the deceased did introduce the plaintiff to his friends. In their affidavit sworn 19 March 2002 the third and fourth defendants (the parents of the deceased) say that the deceased told them that "he would be having a female friend visiting his house for several weeks" (see par 4). It is not clear from the affidavit when the deceased told his parents about the plaintiff, but it must have been in late 1999. Later in their affidavit (par 10) the third and fourth defendants say that the deceased introduced the plaintiff "as a friend". In her affidavit of 4 April 2002, which in part replied to the affidavit of the third and fourth defendant, the plaintiff does not deal with these allegations. The only other evidence in relation to these matters relied upon by the plaintiff is to be found in the affidavit of Ms Hambley sworn 2 April 2002. Ms Hambley says (at par 11):

"Paul, Lee and Luke were regarded as a family by myself, and from my observations, by the people around me that knew them well. I feel that this would have continued to be the case if not for Paul's tragic, untimely death."

14 While that evidence provides some support for the plaintiff's case it is hardly precise or comprehensive. Ms Hambley does not say over what period she observed the plaintiff and the deceased or what "observations" led her to the view that the deceased, the plaintiff and Luke were "a family". She does not say how often she saw the deceased and the plaintiff together. She does not even provide an instance to support her contention.

15 There are a number of matters which arise from the evidence which, it must be said, support the plaintiff's position. First, it is clear that until at least August 2000 the plaintiff and her son were maintained to some extent by the deceased. The plaintiff lived in a house owned by the deceased and, although it is not expressly detailed in her affidavit, the plaintiff must have been maintained by the deceased. Between November 1999 when she left Kalgoorlie and August 2000 she was not employed. She says, and it is uncontested, that when she left Kalgoorlie she had no money and no assets. She could only have been supported by the deceased.

16 The position did change in August 2000 when she obtained employment. Whether or not the amount she earned was sufficient to maintain her and Luke, or whether she was still dependent upon support from the deceased, is not covered in the evidence. There is simply insufficient evidence to allow me to draw a conclusion on this question.

17 Secondly, it is clear from time to time the deceased bought certain items for the plaintiff. Five of these items are referred to in par 12 of the plaintiff's affidavit of 22 October 2001. Whether it is intended by mentioning these items to advance the proposition that the plaintiff and the deceased set up house together is unclear. The evidence is insufficient to allow me to conclude that the plaintiff and the deceased jointly acquired property with a view to their continued co-habitation as a couple. The same can be said of gifts of an emerald ring and an emerald necklace and two motor vehicles (par 13) of the plaintiff's affidavit of 22 October 2001. While these gifts may be regarded as evidence of the deceased's generosity and his fondness for the plaintiff, they do not in and of themselves establish that the couple were living in a de facto relationship.

18 Thirdly, there is the relationship between the deceased and Luke, the plaintiff's son. Once again the evidence as to this relationship is slight. However, all of the witnesses questioned on the point agreed that the deceased was fond of children and wished eventually to have children of his own. So far as the evidence goes, it suggests that the deceased had a real affection for Luke and treated him kindly. In her affidavit of 22 October 2001 (par 14) the plaintiff lists items of some value given by the deceased to Luke. She also refers briefly to activities undertaken by the deceased and Luke. This aspect of the evidence, while establishing a close relationship between the deceased and Luke, goes no way to establishing a de facto relationship between the plaintiff and the deceased.

19 There are two further matters which attracted some attention during the course of the hearing which, in my view, are largely irrelevant to the issues in this case. The first relates to a Toyota tray-top truck. Some time prior to his death the deceased had taken this truck to Albany for repair. After his death the plaintiff went to Albany, paid $12,461.06 to the repairer and collected the truck. Subsequently, the truck was taken by the third defendant on instructions from the first defendant because, it was said, it formed part of the estate. The plaintiff has not been reimbursed for the money she paid for the repairs. I understand that this dispute is the subject of Local Court proceedings. Whatever the merits of the dispute it does not bear upon the question of whether or not the plaintiff is entitled to make a claim under the Act. The matter can be put entirely to one side.

20 The second matter relates to a mobile phone which the plaintiff and the deceased gave to the third and fourth defendants in July 2000. This matter is raised in par 16 of the plaintiff's first affidavit. It drew a response from the third and fourth defendants in their affidavit of 19 March 2002 (par 27) and receives further attention at par 16 of the plaintiff's affidavit of 4 April 2002. This was a matter dealt with in cross-examination of the plaintiff and the third and fourth defendants. After reading all the evidence and hearing the cross-examination of the witnesses, I am not in a position to decide precisely what happened. But even assuming that the version of events put forward by the plaintiff is correct, it does not, in my view, significantly advance her position. The purchase of a mobile phone to be provided to the deceased's parents, even if it was arranged by the plaintiff and even if it was she who gave the phone to the deceased's parents and instructed them on its use, is scant evidence of a de facto relationship between the plaintiff and the deceased.

21 At the commencement of the hearing counsel for the plaintiff tendered a video tape which was taken of the funeral of the deceased. Counsel placed great emphasis on what was shown in that recording. What the recording shows is that the plaintiff took a prominent part in the funeral of the deceased. She led the cortege and at the funeral service she sat next to the third defendant. She was clearly greatly distressed. The tape recording shows the third defendant taking her hand to provide comfort. Furthermore, other evidence shows that the plaintiff was intimately involved in organising the funeral of the deceased. She obtained a permit under the Public Meetings and Processions Act to allow the deceased's motor cycle friends to ride in procession from the family farm to the Mt Barker cemetery (par 22 of the plaintiff's affidavit of 22 October 2001). The plaintiff was mentioned on the funeral programme (exhibit "D4") and the funeral home card (exhibit "D5"), both of which were distributed to mourners at the funeral.

22 I have some reservation as to whether evidence of the behaviour of the plaintiff after the death of the deceased is relevant to the issues to be determined under subs (7)(1)(f) of the Act. Reactions of individuals to a death vary from one person to the next. But counsel did not put the evidence in that way. It was his submission that the way that the plaintiff was treated by the family and the prominence accorded to her at the funeral was no more than a recognition by all concerned that the plaintiff stood in the position of a de facto widow. Counsel submitted that to say, as all the defendants have done in their evidence, that the plaintiff was no more than a friend of the deceased, was at odds with the way they treated her at the funeral.

23 I accept that the reactions of the family, as shown in the recording, do suggest that they acknowledged she had a special place in the life of the deceased. This is one fact to be taken into account in determining whether the deceased and the plaintiff were in a de facto relationship. But it is one factor and one factor only and of itself, it is not enough to satisfy the evidentiary burden carried by the plaintiff. Even putting the most favourable interpretation on the rest of the evidence available, I am not satisfied that the plaintiff has established she was the de facto widow of the deceased. Just what the nature of the relationship was I am unable to determine. The lack of evidence provided by the plaintiff does not allow me to reach a firm conclusion. Perhaps the best way to express my conclusion is to say that based upon a lack of evidence I am not satisfied that the plaintiff has discharged the burden of proof cast upon her by the provisions of the subsection.

24 There are two other matters which I should mention as some emphasis was placed upon them by counsel. The first was the intention of the plaintiff and the deceased, on the plaintiff's evidence, that she and the deceased were intending to become engaged. Quite what an "engagement" means in these circumstances is not entirely clear. It may mean that the plaintiff and the deceased were not living as husband and wife but were intending to do so at some stage in the future. If that is so, then the fact of the impending engagement damages rather than assists the plaintiff's case. Secondly, there is the plaintiff's evidence that at the time of death of the deceased she was pregnant and subsequently suffered a miscarriage. There was no medical evidence to support the plaintiff's claim in relation to this issue. However, assuming that her evidence is correct, it does not in and of itself establish the de facto relationship. While it might be one fact in favour of the plaintiff's claim, it is not, in my view, conclusive.

25 I would dismiss the plaintiff's application. I will hear the parties in relation to costs.