GFR v SRP [2024] TASFC 2

Judgment Number: [2024] TASFC 2

1. Appeal allowed.
2. Orders of Holt AsJ set aside.

1. This appeal concerns the estate of the late HMW. Mr W took his own life on 4 September 2021. He did not leave a will. The respondent, SRP, lived with him from 2015 until shortly before his death, but was not married to him. She claims to be entitled to his estate. She and the deceased had a child, who was born in August 2019. The appellant, GFR, is the father of the deceased. He contends that [the child] is entitled to the whole of the estate.
2. The critical issue in this appeal is whether the respondent was the spouse of the deceased at the time of his death for the purposes of the Intestacy Act 2010. Section 6 of that Act provides as follows:

(a) who was married to the intestate immediately before the intestate's death; or

(b) who was a party to a registered personal relationship, within the meaning of the Relationships Act 2003 , with the intestate; or

(c) who, immediately before the intestate's death, was a party to a significant relationship, within the meaning of the Relationships Act 2003 , with the intestate that -

(i) had been in existence for a continuous period of at least 2 years; or

1. The respondent contends that immediately before the death of the deceased he and she were the parties to a significant relationship within the meaning of the Relationships Act 2003 that had resulted in the birth of a child; that she was therefore his spouse for the purposes of that Act; and that she is therefore entitled to the whole estate pursuant to s 13 of the Intestacy Act.
2. The appellant, who contended otherwise, commenced an action seeking a grant of letters of administration of the estate to himself and his surviving son for the benefit of the child. The respondent defended that action. Holt AsJ conducted a trial of the action and found for the respondent: GFR v SRP [2023] TASSC 15. His Honour ordered that letters of administration be granted to the respondent, saying that she was entitled to the whole of the estate by reason of intestacy. This is an appeal from that judgment.

1. The respondent contends that the appellant, as the father of the deceased, was not an appropriate person to bring an action seeking a grant of letters of administration of his estate. An argument to that effect was advanced in the proceedings before the learned associate judge, but his Honour did not rule on that argument, and based his decision solely on a finding that the significant relationship between the deceased and the respondent continued until the death of the deceased.
2. Section 13 of the Administration and Probate Act 1935 contains provisions as to the discretion of the Court to grant letters of administration. That section reads as follows:

"13 Discretion of Court as to persons to whom administration is to be granted and limitation of grant

In granting letters of administration the Court shall have regard to the rights of all persons interested in the real and personal estate of the deceased person, or the proceeds of sale thereof and, in particular, administration with the will annexed may be granted to a devisee or legatee, and any such administration may be limited in any way the Court thinks fit. Provided that -

(a) where the deceased died wholly intestate as to his real and personal estate, administration shall, if application is made for that purpose, be granted to some one or more of the persons interested in the residuary estate of the deceased; and

(b) if, by reason of the insolvency of the estate of the deceased or of any other special circumstances, it appears to the Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this provision, would by law have been entitled to the grant of administration, the Court may, in its discretion, notwithstanding anything contained in section 14 , appoint as administrator such person as it thinks expedient, and any administration granted under this provision may be limited in any way the Court thinks fit."

1. Rule 19(1) of the Probate Rules 2017 contains provisions as to the priority of persons entitled to apply for letters of administration upon an intestacy. That sub-rule reads as follows:

"Priority of persons entitled to apply for letters of administration upon intestacy

(1) Subject to rule 20, the person or persons entitled to apply for letters of administration upon intestacy are to be determined in accordance with the following order of priority:

(i) the child of the deceased has failed to survive the deceased; and

(ii) the issue is entitled to a share of the deceased's estate taking per stirpes;

(e) the brothers and sisters of the deceased, whether or not they have one or both parents in common;

(f) the issue of any brother or sister of the deceased, if -

(i) the brother or sister has failed to survive the deceased; and

(ii) the issue is entitled to a share of the deceased's estate taking per stirpes;

(i) the issue of any aunt or uncle of the deceased, if -

(i) the aunt or uncle has failed to survive the deceased; and

(ii) the issue is entitled to a share of the deceased's estate taking per stirpes;

1. In r 3(1) of those rules, there is a provision that "spouse" has the same meaning as in the Intestacy Act. If, as she contends, the respondent was the spouse of the deceased until he died, she was entitled to apply for letters of administration. If she was no longer his spouse, it was not open to the child of the couple to apply for letters of administration because s 13A of the Administration and Probate Act empowers the Court to grant letters of administration only to a person aged 18 years or more. Rule 19(1)(c) was inapplicable because the deceased did not have any grandchildren. The next class of persons in order of priority was the parents of the deceased: r 19(1)(d). Thus, if the respondent was not the spouse of the deceased at the time of his death, the individuals with priority for the purposes of applying for letters of administration were the appellant and the deceased's mother.
2. Counsel for the respondent relied on the fact that the appellant did not claim to have any interest in the estate of the deceased, even as a creditor. Reliance was placed on authorities which establish a general rule that contentious applications in the probate jurisdiction may only be made by persons who have, or claim to have, a right which will be affected by the making or revocation of a grant of representation: Gardiner v Hughes [2017] VSCA 167, 54 VR 394; German v Germantsis [2022] VSCA 157; Nobarani v Mariconte [2018] HCA 36, 265 CLR 236 at [49]. But this was a case where, if there was no significant relationship in existence at the date of death, the entire estate passed to a child by virtue of s 28(1) of the Intestacy Act. The deceased was the registered proprietor of some real estate. It was therefore necessary for somebody to apply for letters of administration. If, as the appellant contends, the deceased was not survived by a spouse, the most appropriate applicants were the appellant and the deceased's mother, by virtue of r 19(1)(d) of the Probate Rules. If the whole of an intestate estate passes to a child or children, that may be regarded as a special circumstance rendering it necessary or expedient to appoint some other person as administrator in accordance with s 13(b) of the Administration and Probate Act.
3. Counsel for the respondent submitted that the only appropriate way for anyone to dispute her contention that a significant relationship continued to the date of death was for proceedings to have been instituted by a litigation guardian on behalf of the child. Counsel relied on the decision of the Victorian Court of Appeal in German v Germantsis (above). That concerned the estate of a testator who made a will in 2013, made a second will in 2018, and then died. He was survived by a widow and three sons. The widow was incapacitated as a result of Alzheimer's disease and dementia. The applicant in the proceedings was a son of the deceased who had been appointed as the executor of the 2013 will. The widow was the sole beneficiary under the 2013 will. The applicant lodged a caveat, seeking to prevent probate of the 2018 will being granted to one of his brothers. Neither he nor the widow were beneficiaries under the 2018 will. An associate judge made an order dismissing the caveat, holding that the applicant had no right to lodge the caveat on his own behalf since he had no claim to a beneficial interest under the 2013 will, and that he had no right to lodge a caveat on behalf of his mother. The applicant applied for leave to appeal, but the Court of Appeal refused leave. At [52] their Honours observed that no application had been made for the appointment of a litigation guardian to represent the interests of the widow, and concluded that there was no basis on which the applicant could purport to act on behalf of a non-party for the purposes of establishing his own standing.
4. That case related to the validity of the caveat, not a contentious application for a grant of letters of administration. If the submissions of counsel for the respondent are correct, the only appropriate course would have been for a proceeding to have been instituted in the name of the child by a litigation guardian seeking an order that letters of administration be granted to a non-party. In my view such a proceeding would have been unnecessarily convoluted. Since there was a genuine question as to whether a significant relationship existed at the time of death, and since the interests of the child needed to be protected, I see no reason why an action by the father of the deceased seeking a grant of letters of administration was not an appropriate course to take in the circumstances. If there was no significant relationship at the relevant time, the only appropriate course was to apply for letters of administration. Since there was a controversy as to the existence of a significant relationship at the relevant time, it was entirely appropriate for the deceased's father to commence contentious proceedings seeking a grant of letters of administration.

The relationship between the deceased and the respondent

1. The Relationships Act does not contain a definition of "significant relationship", but lists a number of circumstances that are to be taken into account in deciding whether a relationship between two people is a "significant relationship" or not. Section 4 of that Act provides as follows:

(1) For the purposes of this Act, a significant relationship is a relationship between two adult persons -

(b) who are not married to one another or related by family.

(2) If a significant relationship is registered under Part 2 , proof of registration is proof of the relationship.

(3) If a significant relationship is not registered under Part 2 , in determining whether two persons are in a significant 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:

(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;

(i) the reputation and public aspects of the relationship.

(4) No finding in respect of any of the matters mentioned in subsection (3)(a) to (i) , or in respect of any combination of them, is to be regarded as necessary for the existence of a significant 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."

1. The respondent and the deceased had a relationship as a couple. They were not married to one another or related by family. Their relationship was not registered under Part 2 of the Relationships Act. It is therefore necessary to consider the circumstances listed in s 4(3).
2. There is uncontroversial evidence that led Holt AsJ to conclude that the parties were in a "significant relationship" until at least 29 August 2021. On that day the respondent told the deceased that she had been in a sexual relationship with another man, and the deceased then raped her anally. The next morning she took the child, left the home, and went to stay with her parents. She was still staying with them when the deceased took his life. The critical question is not whether a significant relationship had existed, but whether it still existed immediately before the death of the deceased. Holt AsJ concluded that it had not ended at that time.
3. The uncontroversial aspects of the relationship prior to 29 August 2021 can be summarised as follows:
   • The parties lived together in a marriage-like relationship from March 2015, except for one short separation. The respondent moved out of the couple's home in late March 2021 but resumed cohabitation after about two months, having obtained some relationship counselling from a psychologist.
   • Initially they lived together on a property that the deceased had owned since 2008. In 2016 that property was sold and the couple moved into a flat below the respondent's parents' home. They lived there for about 12 months rent-free. In late 2016 they purchased a block of land. Both contributed funds but it was purchased in the name of the deceased alone. They built a cabin on that land and started to build a house, using finance from the Commonwealth Bank. They moved into the cabin in May 2017, and into the house in 2021.
   • The couple had a sexual relationship. It is clear from the evidence that each of them expected the other not to engage in any sexual activity with anybody else. Until the final months of their relationship, it appears that it was an exclusive relationship in that respect.
   • They were financially interdependent. They each earned an income. They kept their finances separate, but each of them contributed to expenditure for their joint benefit.
   • As from 27 January 2018 they were engaged to be married.
   • They both had responsibility for the care and support of their child. They both hoped to have a second child.
4. In the autumn of 2021 the respondent had a sexual affair with a male friend. He was married. The affair lasted about two months. They kept the affair a secret. In late July 2021, about three months after the affair ended, the deceased found out about it. He found some photographs and a Snapchat message on the respondent's phone. He confronted her, and she told him that she had had an "emotional affair" with the man, that it had ended in April 2021, and that she had found comfort in the emotional support that the man had provided to her. For weeks afterwards the deceased was very upset about the respondent's relationship with the other man. She was about 7 weeks pregnant when the deceased found out about the relationship. When she was about 9 weeks pregnant they agreed that the pregnancy should be terminated, and it was. The deceased asserted that the child was not his. The respondent has given unchallenged evidence that the child was his. The couple decided to stay together and work on their relationship.
5. On the night of Sunday 29 August 2021 the respondent told the deceased the truth about having had sex with the other man. In an affidavit she gave a very detailed account of the deceased's behaviour on that day prior to that conversation. It appears that he was very upset and had been drinking. The respondent told him that she had had sex with the other man on five occasions, and told him where sex had taken place, but refused to give details of any sexual acts. Their conversation took place when they were both in their bed. The deceased rolled the respondent over so that she was face down and raped her anally, causing pain and bleeding.
6. Later that night the deceased apologised to the respondent. According to her affidavit they talked civilly for some time, discussing an amicable separation and their finances. Before 6am the deceased left the house and went to the home of the respondent's parents. Her mother visited her at about 6am. The respondent packed some things and went with the child to stay at her parents' home.
7. It was five days later that the deceased took his life. During those days he and the respondent each told a number of people that their relationship was over. However there was evidence that the deceased continued to love the respondent, and that they had a number of conversations about future arrangements. They discussed property and financial arrangements and arrangements relating to the child. There was also some talk about the possibility of the respondent returning to the deceased.
8. The learned associate judge gave detailed consideration to the evidence as to the conduct of the couple from 29 August 2021 until the death of the deceased. He considered whether the deceased had ended the relationship by the time of his death, examined the relevant evidence, and concluded, at [31], that he had not. He then considered whether the respondent had ended the relationship, examined the evidence as to her conduct, and concluded, at [36], that that had not been established.

1. The appellant contends that the deceased and the respondent ceased to be in a significant relationship prior to the death of the deceased. He relies on some notes written by the deceased on his computer prior to his suicide, text messages exchanged between him and the respondent, and the evidence of several witnesses.
2. The deceased typed a five-page document that began with a history of the couple's relationship. The second line of that document read, "Started January 2015, Ended 29 August 2021". On the third page, he typed a detailed summary of the conversation of 28 July 2021, beginning with, "Infidelity confirmed 28-7-21 by checking of messages and nude photos on ... Snapchat...". On the fourth page, there is a detailed list of the respondent's "admissions" in relation to the relationship with the other man.
3. The fifth page contains messages to the respondent, their child, and the deceased's family and friends. The wording indicates that he was thinking of committing suicide and expecting that those messages would be read after his death. To the respondent he wrote the following:

"..., you were my rock, one I was proud of to call you mine.

Please know I will love you for ever and always no matter what. You were an amazing partner, fiancé, and mother.

This life was for us. Our future was supposed to start now.

Im forever sorry for any hurt I have caused you. You really do deserve better."

1. The appellant relies on evidence from a friend of the respondent named TMR. The respondent sent a text message to her and another close friend on Monday 30 August 2021 at 10.38am saying, "Just to let you guys know [HMW] and I are over. I've moved out." In reply to a question about what had happened, the respondent wrote, "The truth I don't want to talk about it. It's fucked. I hate who I am".
2. In her affidavit TMR gave evidence of a discussion with the respondent two days later, on Wednesday, 1 September. She said that the respondent described the separation as "very definite, very permanent". She said that the respondent said that she had packed up and moved all of her things, and had left engagement ring behind. She said that she wanted her son to have all of his things "to make the separation less impactful on him". She discussed what assets and child support she would be receiving, and said that she and the deceased had discussed "the financial side of their separation".
3. TMR described a conversation with the deceased that occurred on the following day, Thursday, 2 September. She said that he described the discussions he had with the respondent about their financial separation, and that what he said aligned perfectly with what the respondent had told her. She said that she asked the deceased, "Where are you now with the relationship, can you get over this?" She said he replied, "She's done too much. I will never be able to forgive her, there is no coming back from this, the relationship is over."
4. A friend of the couple named MNS also swore an affidavit. She had a conversation with the deceased on Monday, 30 August. He gave her details of the respondent's sexual relationship with her lover. MNS said that he appeared shattered and lost, and was crying.
5. MNS had a conversation with the respondent on Thursday, 2 September. She said that the respondent told her that the couple had separated, that she had moved back into her parents' home with their child, that they were organising shared care of him, that she knew that the deceased "was done with the relationship", and that she had had a discussion with the deceased on the Monday morning about finances, including child support.
6. She described a conversation with the deceased on Friday, 3 September, the day before he committed suicide. According to her affidavit, the deceased discussed custody, access and handover arrangements, as well as financial arrangements. MNS said that he spoke about the impact of the end of the relationship on family and friends, that he told her about several mutual friends who had said that they wanted nothing to do with the respondent because of what she had done, and about her needing the support of her friends. She said, "He spoke about her having thrown away what they had. He said their relationship had been reduced to nothing. He said that he had lost his family." Recordings of MNS conversations with the deceased on 30 August and 3 September were in evidence.
7. In one of his affidavits, the appellant described a conversation with his son on 3 September 2021. According to that affidavit the deceased said that he and the respondent were "done", that he felt totally humiliated and ashamed by her admissions, that his relationship with her was beyond repair, that he could not trust her, and that he could not have her back after the affair, lies and deceit that she had inflicted on him and their son.
8. The deceased's mother swore an affidavit in which she described a conversation with him on Monday, 30 August. According to that affidavit, the deceased told his mother that he told the respondent in the early hours of the Monday morning that she had to go.
9. She said that on Thursday, 3 September he spoke to her by phone and said that he had told someone at his work that his "Mrs and kid" had left him, and that that was all they needed to know.
10. This witness went on to describe a visit by the deceased over several hours on the evening of Thursday, 2 September. She said that he spoke about imagining life as a single father, borrowing a sum of money that the respondent wanted, finding weekly maintenance money for the child, sharing custody of him 50/50, and a plan by the respondent to move in with the other man. She reported that he said words to effect of, "I feel like I have been traded in."
11. A witness named NRS gave evidence of a phone conversation with the deceased on the evening of Monday, 30 August. She said that he said words to the effect that his relationship with the respondent was "done over for good". She said the deceased visited her for about four hours on Friday, 3 September and spoke about a financial settlement, child support, and 50/50 custody.
12. The respondent's cousin HRL deposed to receiving a text message from the deceased on Wednesday, 1 September about the relationship, saying, "It's obviously way beyond repair".
13. A friend of the deceased named YCR deposed to three conversations with him during the last week of his life. His evidence of those conversations was to the following effect. On Monday, 30 August they talked in his car, and the deceased confirmed that the couple's relationship was over. On Tuesday, 31 August during a period of some hours, the deceased said on multiple occasions that the relationship was over, said that the respondent was planning to start a new life and family with the other man, discussed property settlement and child support, and stated that the respondent had given back the engagement ring. On Tuesday, 31 August he asked the deceased if there was any chance of the couple sorting out their relationship, to which he said, "No, we are done."
14. The appellant relied on a chain of text messages between the respondent and a man named Stuart Hill. On Wednesday, 1 September she sent messages that included the following:
    • "Be there for [HMW]. I hate that I have hurt him. But I will always make sure he has [the child] as much as possible".
    • "I sacrificed just as much as he did to now end up with nothing. That's been really hard."
15. A witness named MMN deposed to four conversations with the deceased during the last week of his life. His evidence was to the following effect. On Monday, 30 August the deceased said that he and the respondent were "done", talked about property settlement and child maintenance, and talked about the respondent starting to plan her future with the other man. The deceased spoke of the return of the engagement ring and said that confirmed to him that their relationship was over. MMN visited the deceased on Monday, 30 August and observed that all the photos of the respondent had been removed from the walls and turned face down. On Thursday, 2 September he saw the deceased, who told him that he and the respondent were "both in agreement that their relationship was now over for good and neither of them had any desire to change that". The deceased told him that the respondent had "checked out months ago" from their relationship. He saw the deceased again briefly on 3 September. There was no suggestion at that time that the deceased's opinion had changed as to the relationship being over.
16. A friend of the deceased named UGD swore an affidavit containing evidence to the following effect. He visited the deceased on the night of Tuesday, 31 August and spent some hours with him. During that visit the deceased told him and others that the respondent had moved out, taking their child and their dog, and had moved to her parents' place, that her father had been removing her stuff from their home, and that she had had an affair, naming the other man. He did not say anything to suggest that there was any chance of them getting back together. The deceased visited him on the evening of Friday, 3 September. He spoke in detail about the respondent's affair. He spoke about his future, speaking in general about plans for his life after his life with the respondent, his concern for the child having to grow up in a broken family, and his concern for how the ending of his relationship with the respondent would impact on other people.
17. The evidence that I have referred to as to what the deceased said and wrote after 29 August 2021 was unchallenged and uncontradicted.

1. The respondent contends that, whilst there were occasions after 29 August 2021 when she and the deceased each made statements to the effect that their relationship was over, neither of them had permanently decided not to remain in the relationship, and their actions had not been sufficient to sever the significant relationship.
2. The respondent swore an affidavit for the purpose of the trial and was cross-examined. Her counsel relied on evidence from her to the following effect:
   • In her affidavit she said that the main reason she left the house on the morning of 30 August was the threat of violence from the deceased and "his unstable mental state".
   • Although various items belonging to the child were taken by the respondent to her parents' house and made available by the deceased for collection, there were other items that remained at the couple's home, including household effects, furniture, the respondent's bicycle, and diving gear.
   • On 31 August the deceased sent the respondent a text message reading, "Why are you leaving your engagement ring? Dont you like it?" The respondent replied, "I love it. But I dont deserve it".
   • The respondent and the deceased remained on speaking terms after 30 August. On Tuesday, 31 August the deceased sent the respondent a message asking to see the child. She took the child to the house at 10am. The deceased pinned her to the wall by her shoulders and yelled at her angrily. She decided to de-escalate his emotions. After a while he calmed down. She left at about lunchtime, leaving the child with the deceased. It was at that time that she took off her engagement ring and left it. She returned to collect the child at 4pm. The deceased was crying. She tried to calm him down by cuddling him, kissing him, and telling him that it would all be okay. He asked whether she would move back home with the child so that they could be a family again. She replied that "we will work towards that, but first, we needed to get him help and into rehab, and then we would consider moving back in". On Wednesday, 1 September the deceased came to the respondent's parents' place, collected the child, and looked after him overnight. By arrangement the respondent collected the child on Thursday, 2 September at 5am. The deceased got up, held her hand, walked with her to the living room, and cried. She told the deceased "that we were not going to do anything with our finances yet because things might work out between us in time, and we could continue with our relationship". He held her, and gave her a big hug and "a real kiss". He said that he loved her and the child very much. She brought the child back to her parents' home. They later exchanged Snapchat messages relating to the deceased possibly seeing a psychologist or general practitioner. Later the respondent phoned the deceased and told him that she had spoken to a general practitioner who was his sister-in-law. After that the respondent ceased direct contact with the deceased at the request of his mother.
   • The respondent and the deceased had discussions about financial arrangements during the days in question. Neither took any steps to alter their financial or property arrangements. In her affidavit the respondent said that she and the deceased "did have discussions about separation, finances, and the like, however, we decided during that last week that we would first try to get him help and there was still a chance we would continue with our relationship".
   • The respondent ensured that the deceased had time with the child. Apart from the daytime visit on 31 August and the overnight visit of 1 September, they spent the day together on 3 September. There was an arrangement for the deceased to see the child on the afternoon of 4 September, but he did not arrive.
3. Although the deceased and the respondent each had discussions with lawyers during the last week of the deceased's life, those discussions appear to have been preliminary discussions. The only evidence as to the deceased seeing a lawyer came from MNS. She said that the deceased had received advice not to complete the house because a lower value would mean that the respondent would get less. The respondent spoke to a lawyer who was a friend of her brother on Wednesday, 1 September. In an affidavit, that lawyer said that the respondent told her that property advice "may be unnecessary anyway if they stay together". In oral evidence, the lawyer said that she said explained to the respondent how arrangements for the child would work "if they were to fully separate". The respondent told this lawyer that the deceased had raped her, and the possibility of going to the police was discussed. The lawyer said in her affidavit that the respondent was "quite reluctant about this and she said that she would not pursue this at the current time". The respondent did not formally engage the lawyer to act for her.
4. Counsel for the respondent submitted that she and the deceased "were reeling from the events of the night of 29/30 August 2021"; that those events caused them to question the future of their relationship, to take steps to give each other space, and to gather information about the legal and financial ramifications of a permanent separation; but that none of those steps were sufficient to sever the persistence of the indicia of their longstanding significant relationship.

1. Counsel for the appellant relied on a number of decisions of appellate courts in other States in relation to the cessation of de facto relationships. In Hibberson v George [1989] NSWCA 100; (1989) 12 FamLR 725, the New South Wales Court of Appeal had to decide whether a couple's de facto relationship was subsisting when the De Facto Relationships Act 1984 (NSW) commenced on 1 July 1985. The defendant gave evidence that she left the couple's home with their two children on 21 May 1985 and went to stay with her brother as she wanted time to work things out and to think about her relationship away from the plaintiff. The Court held that the de facto relationship had ceased before the 1984 Act commenced. Mahoney JA, with whom Hope and McHugh JJA agreed, said the following at 740:

"There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue."

1. That paragraph was cited with approval by Dutney J, with whom McPherson and Williams JJA agreed, in S v B [2004] QCA 449, [2005] 1 QdR 537, at [33]. That case concerned an issue as to whether a couple were in a de facto relationship when Part 19 of the Property Law Act 1975 (Qld) commenced on 21 December 1999. The Queensland Court of Appeal held that the relationship had deteriorated to such an extent by the critical date that it was not then a de facto relationship, even though one party wished it to continue. Dutney J said the following at [48]:

"Applying the passage of Mahoney JA in Hibberson v George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it."

1. Brett J referred to the judgment of Mahoney JA in Hibberson v George and the judgment of Dutney J in S v B in Brownell v Robinson [2017] TASSC 5 at [54], saying this:

"The point being made by their Honours is that a de facto relationship will depend for its existence on the mutual consent of both parties to be in that relationship. When that consent is withdrawn by one party, the necessary element of mutuality is destroyed, and hence the relationship is no longer in existence. It is not the fact of separation per se which is important, it is whether that separation manifests an intention on the part of one party to end the relationship, thereby withdrawing the necessary consent required for the existence of the relationship. In the case of a marriage or a registered relationship, the relationship will continue by operation of law irrespective of the withdrawal of consent."

1. That case concerned a dispute as to whether a couple had been in a significant relationship for a continuous period of two years immediately before one of them dying. They maintained separate households, but that was because the male was a hoarder and the female would have found life in the same house intolerable. There had been periods when they had arguments and temporarily ceased speaking to one another. Brett J held, at [55], that those separations could not be taken to have manifested an intention to bring the relationship to an end. An appeal to the Full Court from his Honour's decision was unsuccessful: Brownell v Robinson [2017] TASFC 11.
2. Of course Hibberson v George and S v B both concerned legislation in other States applying to "de facto relationships", whereas the concept of a significant relationship under the Relationships Act is a somewhat wider and more flexible concept. A significant relationship can be a homosexual relationship, or a relationship between two people who do not live together as if they were husband and wife in a stereotypical marriage: Wiggins v Public Trustee [2020] TASFC 13 at [8].
3. Counsel for the respondent submitted, correctly, that it is necessary to look at all aspects of the couple's relationship in order to determine whether a significant relationship was subsisting at the critical time. He relied on a comment of Williams JA in S v B at [9] as authority for the proposition that the circumstances will dictate what is needed to establish a cessation of a relationship. He argued that it was implicit in the remarks of Dutney J in S v B that the formation of an intention to end a relationship was not itself sufficient to bring the relationship to an end, but that the party wishing to end the relationship must act on that intention. That submission appears to have been misconceived. In that case the parties were living under the same roof in a house that was divided into two self-contained sections, each with a separate kitchen, separate living areas, a separate telephone service, a separate street number, and a separate letter box. The relationship had deteriorated as a result of Mr S having a problem with erectile dysfunction, and as a result of him denouncing Ms B as fat and blaming the cessation of sexual activity on her fatness. The couple had argued about the need to visit a psychologist to try to save their relationship. The end of the relationship appears to have been the result of hostility, not action.

1. It is clear from the evidence that, following the departure of the respondent from the couple's home on the morning of 30 August 2021, the state of the relationship was as follows:
   • They had been together for about six years, but the relationship had been shaken by infidelity and a rape.
   • They were no longer sharing a common residence.
   • The sexual relationship had ended with the rape.
   • The couple had always kept their finances separate. New arrangements were being planned by both of them on the basis that they would be living separately.
   • Both parties contemplated a settlement whereby the deceased would pay the respondent money and remain the sole registered proprietor of the property where they had been living.
   • Reconciliation remained a possibility, but neither party remained committed to a shared life.
   • Both parties remained committed to the care and support of their child, but were planning arrangements for the future based on them living in two separate households.
   • The sharing of household duties had ceased.
   • Both parties had told family members and friends that the relationship was done, finished or over. The respondent was no longer wearing the engagement ring, and had given it back to the deceased.
   • It remained possible that the respondent might report the rape to the police, and that the deceased could go to prison as a result.
   • The respondent had shown some degree of compassion towards the deceased as a result of him being terribly emotionally upset. To a degree she blamed herself for causing his emotional problems by having been unfaithful to him.
   • The deceased still loved the respondent but regarded her conduct as unforgivable.
2. Having regard to those facts and circumstances, I am satisfied that the significant relationship that existed between the deceased and the respondent ceased no later than the time when she returned to her parents' home on the morning of 30 August 2021. The learned associate judge erred in making a finding that it was subsisting immediately before the death of the deceased, after inviting further submissions.
3. For these reasons I would allow the appeal, set aside the orders of Holt AsJ, and make an order for letters of administration to be granted to one or more appropriate administrators.
4. Such orders might not bring an end to this litigation. It is possible that the respondent will wish to claim damages for battery, claim that she has an equitable interest in the real estate of which the deceased was the registered proprietor, and possibly pursue a claim under the Testator's Family Maintenance Act 1912. If she chooses to pursue any or all of such claims, it would be highly desirable for them to be resolved by mediation.