Jack v NSW Registrar of Births, Deaths and Marriages

Applicable legislation

1. The Registrar's power to correct the register is conferred by s 45 of the Births, Deaths and Marriages Registration Act 1995 (BDM Act): 45 Correction of Register (1) The Registrar may correct the Register: (a) to reflect a finding made on inquiry under Division 2, or (b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. (2) The Registrar must, if required by a court, correct the Register. (3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.
2. The Relationships Registration Act 2010 provides for the registration of de facto relationships on the BDM Register, but does not define such a relationship, referring the reader instead to the Interpretation Act 1987. It does not appear that the relationship between the deceased and Ms McLachlan was ever registered in accordance with those provisions.
3. A "de facto" relationship is defined by s 21C of the Interpretation Act: 21C References to de facto partners and de facto relationships (1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or (b) the person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a de facto relationship with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. (4) Meaning of "related by family" For the purposes of subsection (2), 2 persons are related by family if: (a) one is the child (including an adopted child) of the other, or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or (c) they have a parent in common (including an adoptive parent of either or both of them). (5) Subsection (4) applies: (a) even if an adoption has been declared void or is of no effect, and (b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children. (6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order.
4. The issue in this application is thus whether the deceased's death certificate should be amended by removing the name of the second respondent Ms McLachlan as de facto of the deceased at the time of death.

Applicant's evidence

1. The applicant called Ms Michelle Lazarus to give oral evidence. As she was acting as the applicant's support person, she had to be the first witness.

Ms Michelle Lazarus

1. The witness adopted her statutory declaration dated 29 May 2018 (exhibit A1, part annexure Y, also exhibit R3). As the declaration contains a good deal of material by way of comment and argument rather than statements of fact, this summary will seek to separate out those passages. In the declaration the witness stated that she met the deceased in December 2016 at the birthday party of her partner Jamie Farrell. She met the second respondent Ms McLachlan (formerly Leanne Newac) only in August or September 2017 when they went to Tahmoor for Jamie's great-grandmother's one-month wake. She knew the deceased as an inveterate womanizer and was aware that he and Leanne were seeing each other, but not living together. At the time he was living with his best friend Tilly [David Tillman], his step-daughter Chloe, and eight months before his death he was living in Werrington with a friend named Dave Eggford (she was unaware of the correct spelling).
2. About a week before James Farrell died, Jamie mentioned to her that his father and Leanne were moving in together to "give it a go". The witness knew that they were not living together previously, as the deceased did not like Leanne's children. James was "a big player, he was always sleeping with other women even when he had a girlfriend, this was the reason why Jamie's mum Ailene and James never worked out many years ago". The witness's partner Jamie was very much like his father, being idolized by many women. Leanne's claim that they were going to get married and be together forever was untrue, as it was not in James's nature to get married.
3. On the day James died, Jamie was meant to help his father to move Leanne's belongings from Glenmore Park to Cranebrook, but received a telephone call from his father saying not to worry about it. Then a couple of hours later they received the call to say that James had suffered a heart attack and was in Nepean Hospital. That night, Ms Lazarus and Jamie went to collect the deceased's utility truck that was left on the side of the road and bring it back to the house, as it did not lock. During those days after James's passing, Ms Lazarus was the one organizing everything for the family and the funeral arrangements. She had contacted a funeral director in Blacktown and arranged a meeting for all of them to attend.
4. At that meeting, attended by Leanne, Chloe Hudson, Jamie, Leanne's daughter Tahli and herself, Michelle Sneddon [the funeral director] asked Leanne if she and James were in a de facto relationship. Leanne said no, they were not living together. Michelle Sneddon then said that Jamie, being the eldest child, was the next of kin for all the documents to do with Births, Deaths and Marriages. After the arrangements were made, everyone was worried about the cost of the funeral. Leanne did not offer to pay and in fact it was Isabella Farrell, the grandmother, who paid $3900 on the day of the funeral, Ms Lazarus and Jamie paying the remaining $3900 the following day.
5. On the morning of 29 November 2017, Ms Lazarus received a Facebook message from Chloe Hudson saying that she and Leanne were at Ms Lazarus's house wanting to collect the deceased's utility, as they had organized to get his belongings from Dave Eggford's place, where the deceased had been living for the eight months preceding his death. The witness thought that Leanne needed the belongings (having already taken ownership of his telephone) to give the impression that they had been living together when they had not. She said Leanne works for a domestic violence company and knows how to "work the system". Leanne had accused Jamie of taking family members' belongings and caused family members to turn against him, but she had those possessions herself all along. She was also endeavouring to take the deceased's ashes away from Isabella (the grandmother) and keep all his belongings.
6. The deceased and Leanne had never been living together and had not been together for three years as she claimed.
7. In oral evidence at the hearing Ms Lazarus reiterated those points, adding that at the time of the Tahmoor lunch she had not known that Leanne and the deceased were engaged. Although Michelle Sneddon had telephoned Tony Hunter (who had said that Ms McLachlan was James's de facto), she did not mention his having said anything about a de facto relationship. At the time the deceased had been living with David Tillman, Chloe Hudson and David Edford (or Eggford) after mid-2016. The witness had thought the deceased and Leanne were in a "dating" relationship, but did not know much about their relationship.
8. The witness then referred to a text message she had sent to Leanne on 22 November 2017 in which she had written "I know he loved u very much & u will always have his heart… once he has fully crossed over in a couple of months I will take u to my friend Karina she is a medium…." She said she did not know if he did love her, but had just said so in order to comfort Leanne.
9. When cross-examined by Ms McLachlan, it was put to her that Mr Tillman could not have had guests staying with him because he was in a shared accommodation arrangement and was not permitted to have guests. The witness replied that she did not know about that. In relation to James and Jamie's being at Chloe's together, McLachlan put it to Ms Lazarus that the two were not on speaking terms because of Jamie's drug-taking. The witness rejected that proposition, saying that the two were speaking and there was no question about drugs. She was then asked about the meeting to plan the funeral and whether there had been other witnesses present who could give evidence about any reference to the relationship between the deceased and Leanne. She agreed that there had been other witnesses present, but said that Chloe had retracted her earlier statement.

Ms Christy Lee Jack (the applicant)

1. The applicant Ms Jack at the hearing adopted her statutory declaration made on 2 June 2019 (exhibit A1), which is a lengthy document containing much by way of comment and submission rather than evidence. In so far as it contains representations of fact, much of it concerns the length of the association between the deceased and the second respondent. As Ms McLachlan conceded at the hearing that her original estimate of a three-year de facto arrangement overstated the true position, it relates to a matter that is no longer an issue.
2. The applicant's basic position is, however, stated in another statutory declaration by the applicant made on 2 June 2019 (exhibit A1, part annexure Y) which stated, to summarize it, that Ms McLachlan and her late father had never been in a de facto relationship. In April 2014 the deceased had his first heart attack and was transported from Redcliffe Hospital to Prince Charles Hospital in Queensland to undergo a triple bypass operation. During his recovery he stayed with her at ** Cooksland Crescent for about four months. He applied for emergency housing through the Department of Housing at Caboolture and was approved for his unit at *** Central Avenue, Deception Bay, Queensland in about November 2014.
3. While her father had been living in Queensland, he had a relationship with Lisa Marie Warne for about a year until they separated at the end of 2015. He decided to leave his apartment and moved to New South Wales to seek work in June 2016. While living in New South Wales, he had started seeing Leanne McLachlan. The applicant spent the 2017 - 2018 New Year period with her father in Queensland. In January he told her that he had stopped seeing Leanne because they wanted different lifestyles.
4. Her father lived at the house of her sister, Chloe Hudson, at ** Finisterre Avenue, Whalan, New South Wales and would regularly stay with his close friend Dave Tillman. Another close friend of his, Dave Egford, offered him a permanent room for $130 a week. The deceased introduced Leanne to her and her sisters on 18 August 2017 when they came to celebrate his 54th birthday. He had told her in the course of the visit that he and Leanne were looking at moving into a house together. The week before his death, he had told her that he and Leanne had signed a lease for six months for ** Ironbark Drive, Cranebrook. Her father died the day he was due to move into that house.
5. He had discussed with her that he was going to see about how he and Leanne McLachlan would go, and if they would not last he was planning to move back to Queensland. The witness was endeavouring to obtain a copy of her father's lease for the apartment at *** Central Avenue, Deception Bay.
6. In oral evidence at the hearing, the applicant adopted her written statement and explained that it had actually been sworn in early 2018 but the copy had been certified in Queensland on 2 June 2019. In cross-examination the witness said that she had had a close relationship with her late father and had first heard about the de facto relationship in mid-2016 after he had left Queensland. In 2015, when Ms McLachlan said she had been in a relationship with the deceased, he had in fact been involved in a failing relationship with Lisa Warne. She had not asked him about Leanne because he was at that stage still with Lisa. The text screenshot dated 20 December 2015 (part exhibit A4) did not say that the deceased was in a relationship with Ms McLachlan. She had not known about the ring he had given Leanne until seeing the receipt and did not believe that it was an engagement ring.
7. The applicant was then asked about an undated letter signed by her and addressed "To whom it may concern" (exhibit R2, tab 75, annexure V), which stated "I Christy Lee Jack (25/1/1989) am able to confirm that Leanne Newack [sic] was in a domestic defacto relationship with my father James Alfred Farrell for approximately 3 years. They were engaged to be married at the time of his death and I had previously discussed wedding plans with them and they intended to hold their wedding ceremony in February 2018. Regards, Christy Jack". She explained that she had written the letter at Ms McLachlan's behest in order to recover some of her father's possessions, and especially his ashes, but changed her mind when she learned that Ms McLachlan was using it in connexion with her representations to the BDM Registry.
8. Ms McLachlan had said that the applicant's brother Jamie was stealing money, some $5000, from the deceased's wallet after his death and had said only $1400 remained in it when she recovered it from Jamie. The figure of $130 per week as being the proposed rent payable to Dave Egford had been a guess on Ms Jack's part.
9. In cross-examination Ms Jack told Ms McLachlan that she had been unaware of the engagement as she had not discussed the matter with the deceased. She disagreed that official documents showed his address as being the same as Ms McLachlan's, as he had renewed his licence on 7 March 2016 in Queensland. This was confirmed by the Queensland Department of Transport and Main Roads letter of 20 June 2018 (exhibit A1, annexure H). Consequently he would have transferred his licence to New South Wales in early 2017.

Mr Jamie Brady-Farrell -- statutory declaration

1. Mr Jamie Brady-Farrell (or Jamie Farrell) was the eldest son of the deceased and the informant for the purposes of the initial death registration. He played an important role in the controversial aspects of the events preceding and following the deceased's death. He made a statutory declaration dated 25 May 2018 (exhibit A1, part annexure Y), but as he did not give oral evidence at the hearing, his evidence could not be tested by cross-examination. Nevertheless, in view of his role in the matter, it is appropriate to summarize his declaration at this point, omitting the parts that consist of speculation, comment or contention.
2. The declarant stated that the deceased and Leanne McLachlan had not been together even two years and their association was purely one of "dating on and off". Before his father died on 22 November 2017, he had told Mr Jamie Farrell that he and Leanne were looking at a property to rent together. He later said that they had found a property to rent, which was ** Ironbark Drive, Cranebrook. It had been intended that Jamie Brady-Farrell would help him to move Leanne's affairs from Glenmore Park on the day he died, but on that day he had said not to worry and that they could do it the next day.
3. For eight months before his death, his father had been living with his friend Dave Eggford at Werrington, and before that had been "house surfing", living with Jamie's stepsister Chloe Hudson at Whalan and later at Werrington. He was also living with his best friend Dave Tillman at St Mary's, so he never had a fixed address after moving back from Queensland, where he had been living in Aboriginal housing at Deception Bay from about the end of 2014 until early 2015. He was then travelling back and forth from Queensland, but officially ended his lease in about mid-2016.
4. In mid-2016 his father and Leanne McLachlan began communicating. From what he could remember she was living with her ex-partner and two children at St Clair at the time. His father had made it clear he was not going to go out with her while she was still living with her ex-partner. She moved to Glenmore Park and her address was placed on his father's driving license, as when he started driving for Roc Logistics, they needed him to have a New South Wales licence, whereas he had a Queensland licence at the time. Glenmore Park Realty informed him that his father had never been listed on the rental lease for that address.
5. They broke up in January 2017 after he spent the New Year period with Jamie Farrell's three sisters in Queensland. When he returned from Queensland he stayed with Jamie's step-sister Chloe Hudson at Werrington for a couple of weeks and then officially moved in with Dave Eggford at Werrington. He was still living with Dave Eggford to the day he passed away. The declarant's partner Michelle [Lazarus] received Facebook messages from Chloe on 29 November 2017 saying that she and Leanne were getting his father's utility truck from Jamie's house to go and collect their father's things from Dave Eggford's house. [The next sentence appears to have some words missing]: "The reason I didn't provide the funeral director is because Leanne McLachlan/Newac was only my dad's girlfriend, she was in no way his de facto".
6. He did not see that she should have been listed on his death certificate when she was clearly only an on and off girlfriend and not in a solid relationship. The day they attended at the funeral parlour to plan the funeral, Michelle Sneddon asked to Leanne the nature of the relationship with his father. She said that she was his girlfriend. Michelle Sneddon then asked whether they were living as a de facto relationship, to which she replied no. She then said that as Jamie was the eldest child, he should be the next of kin, whereupon he signed the forms as the informant.
7. His grandmother Isabella Farrell had paid $3900 cash for the funeral on the day of the funeral, and he had paid the remaining $3900 on the day after the funeral. His father's marital status at the time of his death was that he was single, and he was never in a de facto relationship with Leanne McLachlan. He believed she was seeking to be recorded as his de facto in order to gain financially. His father found it "very hard to read and write and wasn't the best at filling forms or paperwork in for legal documents, so Leanne would have made sure she put herself down as an authorized representative" or simply told him to sign documents without his really knowing what he was reading or signing.
8. Leanne made it very clear to his sister Christy Jack that if Christy helped her by saying that she and his father were in a de facto relationship, she would arrange to retrieve their father's ashes from his grandmother and give them to her. He had known nothing about any marriage plans. His father would never settle down with one woman, as that was not in his nature. Leanne has many contacts through her work at West Connect Domestic Violence at Blacktown and she knows how to "tug at people's heartstrings when they are going through a tough time".
9. The declarant said that all of the "drama" that Leanne McLachlan had caused had been extremely stressful for all his family, and she had even turned some family members against him and his sisters.

Ms Michelle Brown

1. This witness was called the applicant but did not give evidence until the second day of the hearing, and therefore not in the usual order. Her evidence is summarized below.

Respondents' evidence

1. The BDM Registry called no oral evidence of its own, but relied on documentary material, including the s 58 documents (exhibit R2) and a copy of the amended death certificate showing Ms McLachlan as the de facto of the deceased (exhibit R1).

Ms Leanne McLachlan - second respondent

1. The second respondent, Ms McLachlan, in oral evidence at the hearing adopted her statutory declaration and annexures filed on 25 June 2019 (exhibit R4). There are in fact two statutory declarations date-stamped as having been filed on 25 June 2019, one made on 25 June 2019 and the other on 7 August 2018. In the former the deponent adopts and "resubmits" the earlier 7 August 2018 document.
2. The 7 August 2018 declaration states that she had lived with the deceased James Farrell in a de facto relationship, with her children Tahli and Jai Byrnes, at ** Bluestone Drive, Glenmore Park at the time of his death. They were reconnected via a mutual friend in mid-2015 after 34 years, as they had been childhood sweethearts when she was 14 years old. As she had moved back to Erskineville when she was 15, they had lost contact. They began to speak on the telephone, as Jim (the deceased) lived in Deception Bay at the time. He arranged to come to Sydney to see her within weeks of their having begun talking again, and that was when they cemented their relationship and commitment to each other.
3. She met Jim's mother Isabelle and other family members at that time. Isabelle told her when they met that Jim had said to her that he loved her and wanted to spend the rest of his life with her. While he was in Sydney they decided to begin their relationship together, the deceased then staying in Sydney with her two younger children Tahli and Jai, and herself, at her rental property at William Cox Drive, Richmond. They had discussed with her children their plan for Jim to live with them on a permanent basis. Her children accepted that as they liked Jim and could see that he made her very happy. He told them that he was never going to try to take the place of their father, but would always be there for all of them, as he was now going to be a big part of their lives.
4. They planned to fly to Brisbane in December to see in the New Year with Jim's daughter and drive back together with his car and belongings, which they did. They stayed at Jim's apartment that he lived in before coming to Sydney at *** Central Avenue, Deception Bay for three nights and packing up his belongings in the car and trailer. Ms McLachlan drove Jim's car on their return from Deception Bay, back to their home in Richmond. They spent Christmas morning 2015 with her parents and family at her parents' home at Guildford, before driving to Buxton together after lunch to spend the rest of the afternoon and early evening with Jim's mother and family at Jim's mother's home.
5. They had been in a loving intimate committed relationship throughout their relationship up until the day of his death on 22 November 2017. They shared their lives and saw each other as soulmates from the time they reconnected. They shared all aspects of their lives together and were totally committed to each other. In the beginning of the relationship, she had paid for most costs, financially supporting Jim, her children and herself, with Jim's contribution being minimal as he was on sickness benefits and was unable to work because of his heart condition. Her family came to view him as part of their family and lives, and his family were also very accepting. She became very close to his mother, who had told her that she loved her dearly as she had not seen her son so happy for many years.
6. Jim took care of the pool, gardens and lawns in order to keep the rental property maintained, as she worked and he was at that time unemployed. He would prepare many of the family meals, as well as doing the cleaning and washing. He cooked a barbecue breakfast every Saturday, as well as other barbecues when they had visitors. On 2 April 2016 they all moved to Bluestone Drive, Glenmore Park together, as the Richmond property had been sold. When they moved to Bluestone Drive, Jim recovered his driver's licence and had decided to return to work, securing a position as a truck driver. From that time they shared all financial expenses of the household, as well as household duties.
7. She managed the financial side of things, rent, clothing, shoes, and gifts. They did the grocery shopping together on Saturdays unless Jim was servicing their cars or mowing lawns. He was a father figure when she worked late shifts, providing meals and safety for her children, and ensuring that their school commitments were met. They cared for each other when one or other was sick, as when she had a mini-stroke in 2016. When her father had a stroke in November 2016, he was supportive, making sure to look after her at the hospital. She also was supportive for him when his grandmother passed away in September 2017.
8. The deceased proposed to her in September 2016 and they were both overjoyed. They shared their engagement with all family and friends the next day. When she arrived at work the following week and informed her CEO, the latter made a congratulatory announcement to the whole organization. A valuation certificate dated 29 September 2016 addressed to the deceased at Bluestone Drive, Glenmore Park described her engagement ring as an 18 karat yellow gold diamond ring set with a round brilliant cut diamond claw set and valued at $2636 (part exhibit R4, annexure E).
9. He also informed her in January 2017 that he had taken out a life insurance policy. Her statement annexes a life policy "welcome" document dated 16 January 2017 naming the deceased as the life insured and Leanne McLachlan as 100 percent beneficiary (id., annexure G). He also had her listed at his workplace as his partner (id., annexure H). Her bank statement also showed that his final pay was deposited into her account as his de facto partner (ibid.)
10. She supplied information about their relationship, engagement to be married and cohabitation at Bluestone Drive to Michelle Sneddon, the funeral home director. After the funeral arrangements were discussed and death registration was completed with the information provided, she was later advised on 13 December 2017 by the BDM Registry that she was not listed on his death registration. She believed that the paperwork that was completed at the funeral home on 23 November 2017 had been altered.
11. She stated that Michelle Sneddon had contacted Mr Tony Hunter about assistance with the cost of the funeral and informed Mr Hunter while he was on loudspeaker that she was there and that the deceased was "Leanne's de facto, James Farrell". Mr Hunter provided a statutory declaration dated 31 July 2018 to that effect (part exhibit R4, annexure I). Ms McLachlan maintained that Michelle Sneddon's statutory declaration stating that she was not aware of the de facto relationship was false (id., annexure J). Chloe Hudson signed a handwritten letter dated 14 January 2017 [2018?], witnessed by a Justice of the Peace (but not described as being a statutory declaration), stating that she had been present at the Academy Funerals meeting of 23 November 2017 and had seen Michelle Sneddon clearly write down the name of Leanne McLachlan (Newac) as her father's de facto on the death certificate.
12. The statement annexed a New South Wales Police receipt acknowledging the recording of event number E66767572 (declaration dated 7 August 2016, annexure M) which, according to the witness statement, concerned a report of a theft by Jamie Brady[-Farrell] from the deceased's car on the night of his death, consisting of two wallets containing the amount of $6500, and other personal belongings, as well as threats of violence made towards Ms McLachlan and her son [the receipt itself does not contain any details of the report]. Another police receipt, which acknowledged event number E67916012 (id., annexure N) related, the witness said, to a report about harassment, slander and ongoing threats of violence via social media against herself and her 15 year-old daughter by Jamie Farrell (the deceased's son), Chloe Hudson (the deceased's stepdaughter) and Christy Jack (the deceased's daughter), as well as an "attempt assault" on her 17 year-old son.
13. Ms McLachlan is currently renting the rental property for which she and the deceased signed a lease on the day of his death. They were moving to the property, although it was more expensive, as they needed the extra space for vehicles and other purposes. That was their only intention, as they planned to marry there and would live there while they saved to purchase a house that they could renovate together up on the Central Coast eventually. The statement attaches a copy of a lease for a property at ** Ironbark Drive, Cranebrook signed by the deceased, Ms McLachlan and the agent for Starr Partners Penrith (id., annexure O).
14. Being informed by the BDM Registry that she was not recorded on the death certificate, she attended at Nepean Hospital in order to obtain evidence that would acknowledge their relationship. A progress note signed by a social worker, Daniela Caraballo dated 22 November 2017, refers to "Pt's [patient's] partner Leanne" (id., annexure P). Also attached is a copy of the deceased's heavy vehicle driver licence expiring on 7 March 2018, which gives his address as ** Bluestone Drive, Glenmore Park" (id., annexure Q). The statement also annexes a number of other documents recording that address for the deceased, as well as a large number of statutory declarations.
15. Cross-examined by Ms Gilroy on behalf of the Registry at the hearing, Ms McLachlan reiterated many of those points and added that she had been living at Richmond when the deceased came to live with her in December 2015. She referred to a Virgin Australia confirmation document for a flight from Sydney to Brisbane on 30 December 2015 (exhibit R2, tab 75, annexure D) and explained that they had flown to Queensland in order to collect his belongings so that he could move in with her. She had driven back to Sydney. They had spent New Year's Eve 2015 - 2016 with his daughter Tina and her family.
16. They had moved into the Bluestone Drive property in about April 2016 with her two children, Karly and Joey, and at the time of his death they were in the process of moving to Cranebrook. The relationship had been continuous until his death. He had got on with her children, being particularly good with her son, but also on good terms with her daughter, although on occasion he was frustrated by aspects of their behaviour. They had become engaged in 2016 after he had asked her parents for her hand in marriage, and had told her family and friends.
17. They had started to make wedding plans (and intended to move into the Cranebrook property as they planned to hold the wedding in the back garden). He had taken out a life insurance policy in January 2017 naming her as 100 percent beneficiary (exhibit R2, tab 75, annexure G). It was not correct to say that he had been living with David Edford at the time of his death. Asked why she had collected his belongings from Mr Edford's house, she explained that he had belongings stored in a number of places as they lacked room to store them at their house.
18. The witness was then cross-examined by the applicant and was asked why she had stated in her application to the BDM Registry that she had been in a relationship with the deceased for 3 years. She replied that she accepted responsibility for making a mistake because she had thought at the time of making the application that they were coming up to their third anniversary together. She agreed that she had no evidence to corroborate that Jamie had stolen the two wallets. The police had taken out an AVO on 29 June 2019 as Chloe Hudson had tried to assault her with a crowbar.
19. Asked why the deceased had not been mentioned in the lease agreement for the Bluestone Drive property, the witness replied that it was at the start of their relationship and he had been unable to work because of his disability at the time. He had never been added to the lease because they planned to move into the new property.
20. The applicant then referred to the letter of support from Ms McLachlan's niece, Amanda McLachlan dated 19 December 2017 (exhibit R2, tab 87) confirming the relationship between her aunt (Ms McLachlan) and the deceased over a period of three years and had pointed out that the covering note referred to Alicia Nelson as "doing the letter for Amanda", as suggesting that it had been procured. The witness said she had not asked her to make the statement but that Alicia had helped Amanda to write the letter.
21. The witness was then asked about her text message (exhibit A1, annexure K) indicating that she had completed a number of documents on behalf of the deceased. She explained that he could not write well and she had completed some forms for him on his instructions. She had not, however, done the life insurance application. She said they had been together continuously for nearly 3 years, except for a couple of weeks, and referred to the statutory declaration of a long-term family friend, Pauline Robinson, dated 24 December 2017 in which the declarant stated that they had been "in a relationship for nearly 3 years and were living together during this time" (exhibit R2, tab 63). The witness also referred to the statutory declaration by Kyra-Leigh Anstis dated 21 June 2019 which stated that she had been living with Ms McLachlan's son Jai under her roof since late 2016. She had moved in with Leanne, James, Jai and Tahli when they were living at Glenmore Park and they were in the process of moving to Cranebrook at the time of his passing. That was where Leanne and James planned on getting married.

Mr Neville Brown

1. In oral evidence at the hearing this witness adopted his statutory declaration made on 5 May 2018 (exhibit R2, tab 74) in which he stated that he was aware of the relationship between his cousin, the late James Farrell, and his de facto, soon-to-be wife, Leanne McLachlan. They had been in a relationship for around three years and planned to be married this year (2018). They were living together with Leanne's two children Jai and Tahli, first at Richmond, then moving over to Glenmore Park and finally had just signed a lease together for ** Ironbark Drive, Cranebrook to allow for storage of all of James's cars and other belongings.
2. This had been an extremely difficult time for Leanne and her children, with the added stress of not only Leanne maintaining financially the commitment of their latest rental property, as Leanne had been relying on two incomes to be able to manage, but the stress and harassment caused by James's children who have clearly only had their minds on what they could get out of their father's passing. Leanne had not had an opportunity to grieve the loss and had been put in a position of having to justify their relationship and defend herself against ongoing accusations.
3. James's children had been very deceitful throughout this time, harassing Leanne regarding superannuation and life insurance from the morning after James's passing. Leanne had been listed on the documents prepared by the funeral director but James's children had dishonestly attempted to ensure that Leanne did not have access to any of that which she was entitled to, namely James's superannuations, car and other personal items. James's son Jamie, assisted by the funeral home, had altered documents and had Leanne removed from the original completed paperwork as James's de facto.
4. He had been very close to his cousin James and was very aware of the love James had for Leanne and her for him. In his heart who knows that James would be very upset at the way his children have behaved and treated Leanne through this very difficult time. He believes it has been disrespectful to both Leanne and the memory of James, as he was a kind-hearted man and very old school and would consider what has happened since his passing to be disgraceful.
5. In response to a question from Ms Gilroy, the witness said he had learned of the de facto relationship in about April and May 2015 when he and James had worked together on a job. He was aware of the engagement as James had told him about it four months before he died. The deceased had been living with Leanne and the children at Bluestone Drive, Glenmore Park.
6. Cross-examined by Ms Jack, he acknowledged that he had been in jail when James had died. The lease had been entered into on 21 November 2017, the day before his death. James had been helping to pay the rent for the two previous properties. Mr Brown said he had not been influenced to attest to the existence of the de facto relationship, as the deceased had told him about it himself.
7. The hearing was then adjourned part heard to 12 August 2019. At about 11:40 on that date, the applicant applied for leave to have Ms Lazarus, who had been assisting her in a notionally non-speaking role, appear as her lay representative, which was granted. The applicant nevertheless wished to participate in the oral presentation of her case, and it proved impracticable to require otherwise.
8. The second respondent, Ms McLachlan, applied for leave to participate by telephone for reasons of ill-health, which was also granted. Also at about 11:40, a solicitor, Mr Martin Trinsley, announced his appearance for Ms McLachlan. He participated by telephone for something over an hour but withdrew at 2:00.
9. Three witnesses gave oral evidence on the adjourned date, all of them by telephone. The applicant had a list of other persons she wished to call to give telephone evidence, but most of them could not be reached.
10. In his resumed cross-examination by Ms Jack, Mr Neville Brown on the telephone reaffirmed that he and the deceased were as close as brothers. He had spoken to the deceased once or twice a week, but the deceased had not immediately told him about his engagement to Ms McLachlan, presumably because they did not talk about women very much, as he was "flirtatious" and had many associations with women. He was sure that the couple were planning to get married, as the deceased told him himself, which had rather surprised Mr Brown.
11. He agreed that Ms McLachlan had entered into the lease for the property that they intended as their matrimonial home on the assumption that there would be two incomes to meet expenses. As James had died, however, she was having financial trouble with the property. He believed that the deceased's son Jamie Farrell, the informant for funeral purposes, had with the assistance of Academy Funerals changed the documents and had Leanne McLachlan removed from the originally completed documents as the de facto of the deceased. He acknowledged that he had not been present at the time, however.
12. He was aware that the deceased had been married in 2009 and was surprised when told that he planned to marry Leanne, having thought that following that experience he would not get married again. Nevertheless the deceased had told him that he was happy with Leanne, had finally found the right person and intended to marry her.

Ms Amanda Sheree McLachlan

1. The second respondent then called her niece Ms Amanda McLachlan, who had written (exhibit R2, tab 87, 75 (part)) that she confirmed her knowledge of the relationship between her aunt Leanne McLachlan and her fiancé James Farrell. They had been together for the last three years. "We have had numerous family gatherings at my Auntie and Jim's house and they had just moved into a bigger property to allow for all of Jim's bits and pieces as well as his cars. We were looking forward to the upcoming wedding in the New Year as they had both agreed to have an intimate backyard wedding with family and close friends present".
2. In her statutory declaration dated 28 July 2018 (id., tab 75), Amanda McLachlan declared that during the meeting to discuss the deceased's funeral, Michelle [Sneddon] had made a phone call to Tony Hunter and said "I have someone here you know and am looking for assistance regarding cost of funeral". Michelle mentioned her aunt's name (Leanne McLachlan) and Tony had thought it was "my pop Leanne's dad that had passed. Michelle stated no it is Leanne's de facto partner James Farrell".
3. After the phone call, the declaration continued, they continued to plan for the funeral. Michelle began to make jokes about how many children, grandchildren and women Jim had had. "I found this whole experience with the funeral home disrespectful and heartbreaking during a time which was already very hard for my family. Jim's family were there to start the process of laying a very much-loved man to rest and all we got were jokes made and talk of another man's death. The impact this has had on my auntie Leanne is beyond words".
4. In oral telephone evidence the witness said that at the meeting held at Academy Funeral Services to plan the funeral arrangements, she had been sitting in the room straight across from the table. There had been some talk about the arrangements for flowers and how many women James had been associated with. His son [Jamie] was recorded as next of kin but it was said that James had been engaged to Leanne. The funeral parlour manager had made a phone call to Tony Hunter and had told him in her hearing that she was with the deceased's partner. There was some reference to the deceased having certain benefits as a result of claimed Aboriginal descent.
5. The manager had said that the deceased had been "engaged" to Leanne, but that was the same as a de facto arrangement. The witness knew that they had been living together because James was part of the family, arranged barbecues and was present at the Christmas Day celebrations in 2016. He had helped the witness to move into her house and was involved in family visits. He was living with Leanne at Glenmore Park until his death and before that, and also at Richmond. She had learned about the engagement because he had been planning a trip to propose to Leanne and she (the witness) had helped him with choosing the ring.
6. At the meeting at Academy Funeral Services, she had not been sitting at the table, but there was nothing blocking her view. She saw the manager writing and saying what she was writing. She wrote down the information that was given to her. She noted that the relationship had been ongoing for a few years.

Ms Michelle Sneddon (Academy Funeral Services)

1. Ms Michelle Sneddon in her telephone evidence adopted her statutory declaration dated 15 January 2018 (exhibit R2, tab 64) in which she stated that on 23 November 2017, family members came to the offices of Academy Funeral Services at Blacktown to arrange a funeral for the late James Farrell, who died on 22 November 2017. The family introduced themselves to her. On her left sat a woman who introduced herself as Leanne. Two of the deceased's children were also present, as was Michelle Lazareth [sic], who is the partner of Jamie, the deceased's eldest child. Jamie sat on her right.
2. She asked all present who was going to be the informant. Leanne asked her what that was. She answered the question and asked her what her relation was with Mr Farrell. She stated that she was his girlfriend. The witness asked if they lived together in a de facto arrangement, and Leanne replied that she did not. She then stated that Jamie was the eldest child, so he should be the one that signs all the forms and he was to be the informant. Ms Snedden had begun filling out the forms required.
3. In her telephone evidence at the hearing, the witness said that she is the manager of Academy Funeral Services, and was at the time of the 23 November 2017 meeting. At that meeting the following were present: Leanne McLachlan, Jamie Farrell, Michelle Lazarus, Chloe Hudson and another sibling of Jamie's whose name she could not remember.
4. She had asked Leanne what her relationship with the deceased had been, and she had replied that she was his girlfriend. Nothing was said about an engagement. When asked if the parties had been living together, Leanne had replied that they were not, and that he was living with a male friend in the St Marys area. The death certificate gave his address as Glenmore Park, but that was because Jamie had given the deceased's driver's licence to her, and she had based the entry on that, as his last known address.
5. The completed death registration statement is annexed to the witness's statutory declaration (Exhibit R2, tab 82; exhibit A1, annexure J). [Although the printing on the form is indistinct, the handwritten entry u this nder that heading clearly gives the name of the deceased's spouse as Leanne Margret Jean McLauchlan (sic), but there is a marginal note stating "Girl Friend"].
6. When they had been making the arrangements, Leanne had said that Jamie should fill in the forms because he was the next of kin. Nothing was said about an engagement or a de facto relationship. Leanne had said she was not living with him. She had said they had been having "girl and boy problems" and for that reason were not living together. She had said the deceased was "on a break" from her and had gone to live with a friend. Jamie had accordingly signed the papers.
7. In re-examination the witness said that on the night before the funeral she had received messages telling her to "back off" from the funeral and threatening to obtain a court order to stop the funeral. She thought the messages might have been from a person claiming to be a lawyer, but she was not sure. At the funeral there was a fight when Chloe Hudson physically attacked her grandmother in the chapel and a staff member had to break it up by pulling her away. The witness did not know if Leanne had been involved in the fight. The deceased's grandmother and Jamie had paid for the funeral, not Leanne.

Ms Michelle Brown

1. Ms Michelle Brown, a cousin of the deceased, in her telephone evidence on behalf the applicant (being heard out of order) at the hearing adopted her statutory declaration dated 8 June 2018 (exhibit R2, tab 11) in which she stated that she and the deceased had grown up together and were very close. He telephoned her at least three times a week and was "the family link". He had had many women friends and had been married legally once, and engaged several times over the years.
2. He had told her that he had reconnected online with Leanne in November 2016 and met her in about February 2017, at which time she was still living in the same house with her ex-partner, the father of her two youngest children. As time passed, he mentioned her a few times. He had stated that Leanne wanted more than just being best friends, but he could not get along with her children. James told her days before his death that he was leasing a house with Leanne although he did not think it would last, but he was residing with his friend Dave and had been there for some five months before his passing.
3. He had wanted his own place and said he would be [indecipherable] to put her out if it did not work. Without disrespect to her cousin, Ms Brown said, all the family knew it could not last because James could not be faithful. He was a true woman's man. Ms Brown had known that this was "a passing fling" because James never introduced Leanne to her, and if she had been important he would have made sure they met [more illegible text]. James obviously would not have continued for long in any kind of relationship with Leanne as he had only one true love, and they were his children and grandchildren.
4. At the hearing the witness said she had not met Ms McLachlan until the funeral and the deceased and Ms McLachlan had just met in February 2017, having known each other years earlier. They were not in a relationship but were simply friends "catching up". At that stage Leanne had still been living with her husband.
5. The deceased had many female friends, and women loved him. His grandmother had said that he "wanted to pollinate every flower in the garden". Referred to the email addressed from the deceased to Leanne Newac dated 2 April 2017 that read "Happy birthday to my beautiful fiancée leanne have a good one XX", the witness said he could not have written the text because he could not read and write, and they had joked about his presumed inability to spell "fiancée". But he had spoken to the witness about reservations he had because Leanne "wanted more".
6. She used to speak to the deceased all the time, every week. Mostly they talked about Julia James and Lisa Warne, and Leanne was not in the conversation. The witness had not been aware of his purchase of a ring or his proposal of marriage. At the funeral, her brothers and others asked where this woman was who said she was "his whatever". No-one knew her, including his uncle Barry, who was like a father to him.
7. The first respondent further expressly relied on the statutory declaration of Ms McLachlan's son Jai Reece Byrnes dated 6 August 2018, which stated that the deceased "moved in with myself, my Mum and my sister when we lived in Richmond [in] 2015. Mum and Jim were engaged and going to get married in 2018. We moved to Bluestone Drive, Glenmore Park in April 2016 and still living there when Jim died. We have since moved to Cranebrook as we already planned to move the weekend after Jim had died. Jim was our family and came to family events with us also looking after me and my sister when Mum was at work. Jim helped with anything needed, also driving us where we needed to go" (exhibit R2, part tab 75). Ms Gilroy explained that she had intended to call Mr Byrnes to give oral evidence but had been unable to contact him by telephone.
8. After the hearing parties lodged an agreed chronology, which indicated where the versions of events differed (exhibit R5). At 31 pages, it is too voluminous to reproduce in these reasons, but it is essentially consistent with the positions taken by the parties in their evidence and submissions.

Applicant's submissions

1. The applicant tendered written submissions contending among other things that the deceased and Miss McLachlan were never living in a de facto relationship, nor were they engaged to be married. She believed the BMD Registry had made the decision to add Ms McLachlan's name to the death certificate on very little evidence. Miss McLachlan had not wanted her to be a part of the decision as she knew that she was not Mr Farrell's de facto and did not want them to bring the evidence that they had now put forward to the tribunal. To date BDM had not notified Jamie Brady-Farrell of the change, nor had they provided him with a new death certificate, though he was the informant.
2. Miss McLachlan had stated that she was removed from the original paperwork by Jamie with the help of the funeral home but the form clearly shows that her name was written as "girlfriend" with the comment "put in book" next to it. She believed Miss McLachlan knew that, as she did not sign off as his next of kin or the informant. She did not pay for the funeral, the cost being met as to to half by Isabella Farrell (mother of the deceased) and Ms Lazarus [Jamie's partner]. Ms McLachlan [the applicant uses the titles Ms and Miss interchangeably in this document] claims she paid for Mr Farrell's wake, but the money she received from his work as his final payment on 30 November 2017 actually paid for the wake, so you could say he paid for the wake himself.
3. The applicant believed that after finding out that she needed a death certificate to access Mr Farrell's life insurance and his superannuation, Ms McLachlan had started the process of contacting BDM for a review. She queried why the deceased's life insurance policy was terminated in October 2016 and replaced by another one naming Ms McLachlan as beneficiary. She questioned why her father would not just have added her name to his existing insurance policy. This was a man everyone knew could not read or write, and Ms McLachlan had stated on 1 July 2019 that she filled all his paperwork out for him. The applicant believed that she would just have told him what to sign.
4. She contended that once she was able to show BMD her father's lease agreement relating to Deception Bay, Ms McLachlan had changed her statement to claim reconnection in mid-2015 and James moving in a few weeks later. In mid-2015 her father was living in Queensland with Lisa Marie Warne, but Ms McLachlan now stated that her mind had not been clear and that the reconnection was actually in December 2015 and they were coming up to sharing their third Christmas together. The applicant believed that was when her father and Lisa had a break, as her father was never faithful to any one person.
5. When her father had moved to New South Wales, he lived with her sister Chloe Hudson at Whalan, as he could no longer live on the NewStart allowance. He had previously applied for a disability pension as his triple by-pass had caused him much pain and his left knee had also been troubling him as a result of an accident many years ago. They also found a crack in his spine from a car accident. He was unable to do much lifting or climbing. When he moved to New South Wales, he had given his forwarding address as his sister's Chloe's address at Whalan. Her father had "house surfed" between Chloe's, his best friend Dave Tillman and then was offered a room at Dave Edford's house for $130 a week.
6. The applicant said she had met Miss McLachlan in August 2017 as her father had planned to spend his birthday with them in Queensland, her son sharing the same birthday as him. They celebrated over dinner and Ms McLachlan returned home two days later. Her father stayed in Queensland for another week. That was the last time she had seen him. From the day of her father's death, her whole life that been turned upside down. She had spent the last two years not being able to deal with his death. Ms McLachlan had her and her sibling fighting for her father's possessions that she had removed from Dave Edford's house to her house. She had Chloe Hudson help her remove her father's things from Dave Edford's house under false pretences.
7. After the funeral Ms McLachlan had told her that Jamie, her eldest brother, had taken her father's wallets and cards. She has provided a police event number, but no police report, and her brother had not been contacted by the police at all. She had the use of Mr Farrell's telephone and used it to change and edit his Facebook posts or write her own. She had also blamed Jamie at the time for stealing her father's cars and other belongings. Ms McLachlan had led her to believe that was true, and as it was a few days after her father's funeral, she wanted to protect her father's belongings. Ms McLachlan had said that she could get a lawyer to protect "his stuff". Ms Jack had sent an email to Ms McLachlan and stated what she wanted her to say. She believes Ms McLachlan took advantage of her there as she made it look as if she had certified and she used it under false pretences. Once she noticed what Ms McLachlan had done and was trying to do, she ceased having any contact with her.
8. Ms McLachlan had used payslips, tax refunds, work paperwork, fines and licenses to support her claim of an alleged de facto relationship with her father. It was clear to her that someone had provided documentation for Mr Farrell, who could not read and write, and her own legal licence is in a different address at ** Bren Close, StClair, so that showed that Mr Farrell was able to have his licence and documents in one address, but live at a different address as well. He was indeed living with Dave Edford on the corner of Innes and Armstein in Werrington. The real estate agent for ** Bluestone Avenue, Glenmore Park had supplied a letter to confirm that they did not know of James Farrell is renting or staying at any addresses they leased out.
9. Starr Partners real estate, which was the managing agent for ** Ironbark Crescent, Cranebrook provided a letter stating that they gave Miss McLachlan the option to continue with the lease after Mr Farrell passed. Mr Brown states in his statutory declaration that Ms McLachlan was relying on two incomes for the property; but if she knew she needed two incomes to pay rent for the property, why did she continue with the lease?
10. She relied heavily on Facebook postings stating that she was "in relationship with James Farrell" but there is no mention of an engagement. She provides a statutory declaration from Mr Tony Hunter saying that Michelle Snedden had called him on behalf of Miss McLachlan for the funding of Mr Farrell's funeral. But her father was an Aboriginal himself, and that was why the call was made. Mr Hunter claims that Michelle Snedden had said "Leanne McLachlan's de facto" on the phone. But when people introduce someone, it is not "This is my de facto", it would be more like "This is my partner etc". She believed Miss McLachlan had asked Mr Hunter to write de facto in his statutory declaration.
11. Miss McLachlan, Mr Neville Brown and Mr Andrew Byrnes had all made many allegations against her and her siblings for slander and physical violence but provided no evidence other than the AVO against Chloe Hudson, who she believed had been emotionally blackmailed into helping Miss McLachlan write statutory declarations. The discrepancies in her statutory declarations showed that she was not living with Mr Farrell in a de facto relationship, nor were they due to be married. When her father had married previously, everyone had known about the engagement and wedding and they all attended. But not one of his children, his brother or any of Mr Farrell's friends knew of this alleged engagement, only Isabella Farrell's declaration which she believed was written by Ms McLachlan. Mr Neville Brown had also provided a statutory declaration as Ms McLachlan had helped to get him out of jail, as she has a lot of connections due to the work she does through a domestic violence company.
12. Miss McLachlan had changed her story as to when she and Mr Farrell commenced dating and had asked people to write the word de facto on the statutory declarations. She had made numerous allegations of theft, and violence without being able to provide evidence of her claims. She had manipulated people into doing what she needed to be done by promising them that she will do something for them once she is on the death certificate. She was never listed on the original death registration.
13. Mr Farrell's own daughter Melissa Jack was listed on the original death registration but was removed due to Ms McLachlan's application to add herself. Melissa was removed as Mr Farrell was not listed on her birth certificate, but as can be seen from her [Ms Jack's] birth certificate and that of her sister Tina Farrell-Jack, Melissa is listed as a sibling. To date Melissa has not made a claim through BDM to have herself added back to the death certificate. Ms McLachlan has needed the death certificate for financial gain only.
14. Her father was a family member, he loved his mother, children and his grandchildren, and if you were to ask anyone who knew her father well, they would say he was a very much loved man who would bend over backwards for his family. He would be so proud of them today trying to do the right thing to honour his name.
15. In oral submissions at the hearing the applicant noted that Miss McLachlan had said she had signed the next of kin role over to Jamie, but it was Chloe Hudson who was given the kin position at the hospital. She had said she had been in a three-year relationship, but the lease agreement did not support that. The deceased was living in Queensland when she had caught up with him in 2015, but she had changed the date. Racquel McLachlan had said that the deceased had been renting a room through a friend, but his arrangement with the friend related to a boat, and the room was of no value for that purpose.
16. Kiarah [Golding] had said that the deceased had shown her a ring that he had on layby. The statutory declarations about the engagement do not match her receipt for the sale of the ring. The engagement had not been noted on Facebook and she had claimed only that he had proposed in 2016, which was too imprecise. His name had never appeared on any of the lease documents. Ms McLachlan knew that she was not on the original death certificate and she was not the deceased's de facto. She had coached her witnesses. James Farrell was illiterate and incapable of filling in forms or of understanding them.
17. In reply to the respondents' submissions, the applicant submitted that Ms McLachlan could not supply any police reports in relation to the alleged attacks. The event reports contain no detail. In relation to his life insurance policy, he had cancelled the old one and made a new one, when he could simply have added her name instead. She did not pay for the funeral [she interjected that the applicant would not allow her to do so]. Chloe Hudson had changed her story because of a guilty conscience. Ms McLachlan had not been present when her father had undergone his triple bypass operation, whereas she herself had been. She had unjustifiably painted the deceased's children in a bad light [at this stage there occurred a lengthy and vehement exchange between Ms Jack and Ms McLachlan that made it impossible to comprehend what was being said].

Consideration

1. This tribunal has jurisdiction to hear and determine this application by reason of s 56(1) of the BDM Act and s 9(1) of the Administrative Decisions Review Act 1997 (ADR Act). Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. The tribunal is to make its own decision and there is no presumption that the registrar's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
2. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12].

Principles to be applied

1. The power to correct the register gives the registrar, or by derivation this tribunal, a discretion "to bring an entry about a particular registrable event into conformity with the most reliable information available….": s 45(1)(b). As the tribunal explained in Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86, [10], "The power to correct the register is discretionary. It is predicated on the decision maker being satisfied the proposed changes in conformity with the most reliable information about the registrable event".
2. The registrar registers a death by making an entry about the death in the register, including the particulars required by the regulations: s 42(1). Clause 16 of the Births, Deaths and Marriages Registration Regulation 2017 provides that "For the purposes of section 42(1) of the Act the following particulars are required: …(h) whether, immediately before death, the deceased was married, divorced, widowed, in a registered relationship or an interstate registered relationship or in a de facto relationship …."
3. Neither the BDM Act nor the Regulation defines "de facto relationship". For that one goes to s 21C(2) of the Interpretation Act 1997, which relevantly provides that a person is in a de facto relationship with another if "(a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family…."
4. Section 21C(3) then states that in determining whether to persons have a relationship as a couple, all the circumstances are to be taken into account including any of a list of nine matters, (a) to (i), that are relevant in a particular case, but noting that "No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple". Nor, it would seem, is it necessary that any particular number of matters in the list be satisfied in a particular case.
5. In the present case it is not disputed that the deceased and Ms McLachlan were not married to each other, but whether they were living together as a couple is a matter of sharp controversy.
6. The court or tribunal cases involving correction of the register in connexion with de facto relationships are not abundant, but the authorities do provide some guidance for the approach to be taken in dealing with facts and circumstances such as those in the present case. Thus, in Bennett v Registrar of New South Wales Births Deaths and Marriages [2006] NSWADT 33, a son sought removal of the name of a de facto spouse from his father's death certificate. There was "an enormous volume of material" before the Administrative Decisions Tribunal (this tribunal's predecessor), but it was uncertain when the relationship had started. The parties had bought a property as tenants in common but had separated for a short time, later becoming reconciled. They had maintained separate residences for much of their relationship, but had begun living in the same premises in 1997 and continued to do so, subject to the short separation in 2001, until the death of the deceased in 2002. There was evidence that the deceased engaged in hobbies that his partner did not share, family gatherings that she did not attend and various aspects of the deceased's life that the applicant contended were inconsistent with the existence of a de facto relationship.
7. Montgomery JM considered that there was no requirement for the parties to have cohabited on an uninterrupted basis for a minimum period of time (at [35]). The nature and extent of common residence was only one of a number of matters that might be relevant to determining whether a de facto relationship existed between them (at [43]).
8. In Garrick v New South Wales Registry of Births, Deaths and Marriages [2017] NSWCATAD 306, Hennessy DP noted that, "With marriage and divorce, the date and approximate time when a person is married, or is not married, can easily be identified. That is not the case with de facto relationships" (at [33]). In that case that case a mother sought to have a de facto relationship deleted from her deceased daughter's death certificate on the ground that the relationship had ended when the parties argued four days before her death. They had lived together in a property that was in their joint names, they had joint bank accounts and planned to get married. They had temporarily separated twice for approximately 2 to 3 weeks and there was some question about their sexual relationship.
9. On the basis of the entirety of the evidence, notably some text messages, her Honour found that the applicant's daughter had changed her mind about leaving and given the other party a last chance. He had decided to end the relationship, but had not told the deceased. The tribunal found that a de facto relationship had existed for one year and four months up to the date of death.
10. In Asquith v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 8, the applicant applied for the register to be corrected to show her as the de facto spouse of the deceased. They had cohabited for only two months, but they had become financially interdependent and had a mutual commitment to a shared life. As regards the reputational and public aspects of the relationship, Scahill SM noted that the deceased had not told his father about his commitment to an ongoing relationship with the applicant. Her daughter had thought that they were "in the beginnings of a relationship, like girlfriend and boyfriend" but she also told the tribunal that she had heard them discussing wedding plans (at [76]). The tribunal found that the parties had a relationship as a couple living together and that they were de facto partners in terms of s 21C.
11. In the present case, as in Bennett, there is a large amount of documentary material, much of which was prepared for the purposes of the initial application and the internal review. The applicant argues that Ms McLachlan had coached some of the declarants to assert that there had been a de facto relationship. In one text message to Chloe Hudson Ms McLachlan notes that the phrase de facto is not used in all the all the declarations made to date and instead referred to being together and getting married. She suggested that the term de facto be used (exhibit A1, annexure V). She did not, however, intimate that a declarant should say something that she did not believe to be true.
12. The documentary evidence presents squarely contradictory narratives. Although both versions of events can be criticized, and have been criticized by both parties in detail, especially by the applicant, there is no clear basis on which one could categorically conclude that one version in the statutory declarations is true and the other is not. It is thus a matter of applying the nine criteria in s 21C(3) to the totality of the evidence before the tribunal.
13. Before doing so, it may be useful to examine one particular episode that illustrates the nature of the dispute between the applicant and the second respondent and may help to cast light on the resolution of the issues. That is the meeting held that Academy Funeral Services at Blacktown on 23 November 2017 at which the funeral arrangements were made and the death registration statement was prepared.

The meeting on 23 November 2017

1. The applicant did not attend the meeting, as she was still living in Queensland at the time. Jamie Farrell's partner Michelle Lazarus arranged the meeting and was present. She said the deceased and Ms Leanne McLachlan had never lived together, and that Leanne's claim at the meeting that they had was a lie. He would not have been planning to get married as he was a "ladies' man" and it was not "in his nature" to make a commitment. After he returned from Queensland in 2016, the deceased had lived with his stepdaughter Chloe Hudson, with his friend David Tillman and with his friend David Eggford [or Edford]. He lived with Mr Edford for the eight months before his death. (exhibit R3). The funeral company manager, Michelle Sneddon, had said that Jamie should be recorded as the next of kin, as he was the eldest child.
2. The deceased's son Jamie Brady-Farrell was present at the meeting and in his statutory declaration dated 25 May 2018 (exhibit A1, annexure Y) he said he did not see that Ms McLachlan should have been listed on the death certificate when she was clearly "only an on and off girlfriend and not in a solid relationship. The day we went to the funeral place to carry out the plans for his funeral, Michelle Sneddon asked Leanne the nature of my dad and her relationship, she advised that she was his girlfriend. Michelle Sneddon then asked whether she was living as a de facto relationship, she advised no". Michelle Sneddon then said that as he was the eldest child, he should be the next of kin and he signed the forms as the informant.
3. They had only been dating and broke up in January 2017. After his return from Queensland, his father had stayed with his stepdaughter Chloe Hudson, then with David Tillman and had been living with Dave Eddford [sic] at the time he died.
4. Like her step-brother Jamie Farrell, Chloe Hudson had attended the meeting but did not give oral evidence at the hearing. She made a total of four statutory declarations, and in the one dated 14 January 2017 [scil. 2018] (exhibit R4, annexure K) wrote that Ms McLachlan "had clearly and rightfully been written on those forms on 23rd November". She had "seen Michelle of Academy Funerals clearly write Leanne McLachlan (Newac) as de facto on my father's death certificate".
5. In her statutory declaration of 26 September 2018 (exhibit R2, tab 17) she stated that she retracted her declaration made in December 2017 on the ground that she did not agree with the use that Ms McLachlan was making of the declarations. She did not, however, retract the 14 January document or her declaration of 10 March 2018 (exhibit R2, tab 73) in which she wrote in warm and detailed terms about the couple's 3-year de facto relationship.
6. Ms McLachlan declared that at the meeting she provided to the funeral parlour director Michelle Sneddon information about her relationship with the deceased and living together in a de facto relationship at Glenmore Park, being engaged to be married. After the funeral arrangements were discussed and death registration was completed with information provided and documented by her, she was later advised, on 13 December 2017, that she was not listed on the death registration. She believed that the documents completed at the funeral home on 23 November 2017 had been changed.
7. Ms Sneddon had telephoned Mr Tony Hunter during the meeting regarding assistance with funeral costs and informed him while on loudspeaker that she was there. Mr Hunter had asked if it was her [Ms McLachlan's] father who had died, and Ms Sneddon had replied "No it's Leanne's de facto, James Farrell" (exhibit R2, tab 75).
8. Ms Sneddon's telephone evidence at the hearing stated that at the meeting she had asked Ms McLachlan what her relation was with Mr Farrell. She had stated that she was his girlfriend. Ms Sneddon had then asked if they lived together in a de facto arrangement, and Leanne McLachlan replied that she did not (exhibit R2, tab 64). Nothing had been said about an engagement. When they had been making the arrangements, Ms McLachlan had said that Jamie Farrell should fill in the forms because he was the next of kin. She had added that they had been having "girl and boy problems" and for that reason were not living together. He was "on a break" from her. Jamie Farrell had accordingly signed the papers.
9. Amanda McLachlan, a niece of Leanne McLachlan, wrote that during the meeting, Michelle Sneddon had referred to the couple as being "engaged" and to Ms McLachlan as the deceased's "partner". She made a phone call to Tony Hunter and said she had someone there who he knew and was looking for assistance regarding the cost of the funeral. She mentioned Amanda's aunt's name (Leanne McLachlan) and Tony Hunter had thought it was Leanne's father who had died. Michelle Sneddon said that it was not, it was Leanne's de facto partner James Farrell.
10. After the telephone conversation they continued to plan for the funeral and Michelle Sneddon began to make jokes about how many children, grandchildren and women Jim Farrell had had. Amanda McLachlan found the whole experience with the funeral home "disrespectful and heartbreaking" (exhibit R2, tab 75).
11. In her oral evidence she said that she had been sitting directly across from the table at the meeting and observed Ms Sneddon to be writing down the information given to her and saying what she was writing as she did so.
12. Shannon Hayward, a nephew of Leanne McLachlan in his statutory declaration dated 28 July 2018 (exhibit R2, tab 75) recalled that when the party arrived at the funeral home, Jamie Farrell had introduced his aunt Leanne as his father's fiancée. He continued: "when we first met with the funeral lady Michelle that's when we were aware that herself and Michelle [Lazarus] were friends. They also were discussing family matters during the planning of Jim's funeral. The discussions that happened between Michelle the Funeral lady and Michelle Jamie's partner were very inappropriate and disrespectful, as they were discussing someone they both knew and had died, and Michelle [Sneddon] stated she was glad he was dead she hated him Michelle Jamie's partner agreed".
13. Michelle Sneddon had asked what the relationship was between Jim and Leanne McLachlan, Mr Hayward's declaration continued, and Leanne replied that she was Jim's fiancée and that they were getting married the following year and were living as de facto at the moment. Michelle Sneddon had then asked for his aunt's [Leanne McLachlan's] details, which were recorded on the death registration documents. Michelle Sneddon had said to Leanne McLachlan that she could not sign the documents, as they were not married, and therefore it had to be Jamie as he was the eldest child. In the telephone conversation with Tony Hunter, Ms Sneddon had described Leanne as James Farrell's de facto partner. As they continued to discuss plans for the funeral, Michelle Sneddon made jokes about the deceased. It was very disrespectful and his aunt was very upset about it.
14. The applicant acknowledges the association between the two Michelles in a long text message to Jamie Farrell dated 14 December 2017 (part exhibit R4), which reads in part "You failed to acknowledge Leanne on the death registration, (knowing legally she would and still will stand in your way [to profiting financially]) as his fiancé, you knew they were getting married in February! We are aware of the relationship with shell [Michelle] and Michelle from funeral home which is a conflict of interest!" Thus the text message not only acknowledges the problematic connexion between the two Michelles, but also clearly supports Ms McLachlan's claim to be noted on the death certificate. It also sternly rebukes Jamie Farrell for the alleged theft of $5000 from the deceased's car: "You should be ashamed of yourself Jamie! What type of person steals from his father passed away only a few hours before. We are all well aware of your plan to financially benefit from dad's passing". At the hearing Ms Jack said the text had been based only on information she had received from Ms McLachlan. But it is noteworthy that Jamie Farrell, in his lengthy statutory declaration dated 25 May 2018 (exhibit R2, tab 6), does not deny, or mention, the allegation, serious though it is, and although he was aware of it.
15. Mr Tony Hunter, whom Ms Sneddon had telephoned during the meeting, stated in his statutory declaration dated 31 July 2018 (exhibit R2, tab 75) that after the preliminaries Ms Sneddon had said that Leanne McLachlan was with her and was hoping to see if she could receive some financial assistance with the funeral costs. "I then said I know Leanne, is it her father Des that has passed away. Michelle then said no it's James Farrell, Leanne's de facto. I then stated that there had been some changes and was not sure if we could still assist with funeral costs, but I would check and get back to Michelle…."
16. What Mr Hunter's connexion was with James Farrell is not explicitly stated, but from other comments it would appear that he had some authority to grant financial assistance to persons with Aboriginal ancestry accreditation, a status that James Farrell enjoyed. Mr Hunter would therefore appear to be an impartial and disinterested witness. One would normally make the same assumption in relation to Ms Sneddon, but in view of the remarks reported by Shannon Hayward, it could be thought that was not the case. Although the comments in question were not put to Ms Sneddon in cross-examination, they do not appear to be the kind of remark that a man like Shannon Hayward would think of concocting. Further, both Ms Seddon and Ms Lazarus had notice of the comments attributed to them, but neither denied them in her evidence.
17. In reaching a conclusion about the discussions at the meeting, it is also material to note that Jamie Farrell did not give oral evidence and no explanation for his absence was forthcoming. Although the principle in Jones v Dunkel (1959) 101 CLR 298 does not apply in tribunal proceedings, the failure of the deceased's eldest child to give evidence, even though he played a central role in the proceedings, does not assist the applicant's case. Further, Chloe Hudson's failure to give oral evidence is also significant, especially in view of her marked changes of attitude to Ms McLachlan's status (or lack of it) as de facto during the period following the funeral. (Similarly her failure to mention in any of her declarations that the deceased has stayed with her after his return from Queensland.) The opportunity for the evidence of the deceased's eldest child and stepdaughter to be tested might have assisted the tribunal's deliberations.
18. Also supporting the second respondent's position is the fact that her name is clearly recorded on the declaration form under the "name of spouse" heading, albeit with the enigmatic marginal note "Girl Friend". Further, there is the not insignificant point about whether it was Leanne McLachlan or Michelle Sneddon who originally stated that Jamie Farrell should be the one to sign the documents as informant because he was the eldest child. If Leanne McLachlan was the one who made that comment, it might arguably be considered a kind of waiver or an acknowledgement that her relationship with the deceased had no legally recognizable status. But Jamie Farrell, Michelle Lazarus and Shannon Hayward all state that it was Michelle Sneddon who made the remark. On the other hand, only Michelle Sneddon says that it was Leanne McLachlan, though the latter appears to have expressed approval of the idea. As Ms Sneddon was the one who was experienced in preparing death registration statements, it is more probable that it was on her initial suggestion that Jamie Farrell was appointed as the informant.
19. On balance, therefore, the evidence supports the view that Leanne McLachlan was described, or described herself, at the meeting as the "fiancée", "partner" and "de facto" of the deceased, and I so find. Whether the documents were altered after the meeting to place a different complexion on the relationship has not been established and is in the realm of conjecture.

Factors under the Interpretation Act s 21C(3)

1. In determining whether two persons have a relationship as a couple for the purposes of the definition of de facto relationship in s 21C(2) of the Interpretation Act, it is necessary to take all the circumstances of the relationship into account, including any of the factors listed in s 21C(3). Those matters may now be considered in turn.

(a) The duration of the relationship

1. In her statutory declaration of 25 June 2019 and at the hearing, the second respondent acknowledged at the outset that she had previously erroneously indicated that her relationship with the deceased had existed for about three years, because she had fixed in her mind the idea that they had been coming up to their third Christmas together. Instead, she explained, they had reconnected in late 2015 and were in a relationship for just under two years.
2. Patricia Foster, who knew the deceased for 30 years or more and had known the second respondent for 16 years, stated in her statutory declaration dated 12 July 2018 (exhibit R4, attachment A) that when she was at dinner at Leanne McLachlan's in May or June 2015, they realized that Leanne knew James Farrell and was his girlfriend when she was 14. They decided to make contact and after a short time started their lives together. The deceased then moved from Deception Bay into Leanne's home at Richmond. As Ms Foster lived nearby, she would often go across and visit them there.
3. Ms McLachlan's daughter Tahli Byrnes in her statutory declaration dated 6 August 2018 (exhibit R4, attachment I) stated that the deceased had moved into their home at Richmond in 2015 with her mother Leanne McLachlan, her brother Jai Byrnes and herself. They had all moved to Glenmore Park in 2016 where they were still living when James Farrell died. They had planned to move into the Cranebrook property on the following weekend. Her mother and the deceased were engaged and planning to get married in 2018.Jai Byrnes made a statutory declaration to the same effect on the same date (ibid.)
4. There is a considerable quantity of other statutory declarations by relatives, friends, neighbours and fellow-workers attesting to the commencement of the relationship in 2015, but also a considerable volume of material tendered by the applicant that is to the contrary effect. Where such a conflict exists, it is advisable to give more weight to contemporary documentary evidence rather than to personal opinions.
5. Thus there are Facebook posts, including some from 18 and 20 December 2015 from the deceased to Ms McLachlan stating that they were "In a relationship", including one from 20 December in which the deceased states "I just want to spend the rest of my life love you babe xx" (exhibit R4, attachment A). Also probative is a travel confirmation for a flight from Sydney to Brisbane on 30 December 2015 listing the travellers as James Farrell and Leanne Newac (exhibit R4, annexure D). Besides the Starco jewellers' receipt for a diamond solitaire ring dated 29 August 2016 and the Starco valuation of the ring at $2636 dated 29 September 2016, there is a clear message in a text from the deceased to Ms McLachlan dated 2 April 2017 which reads "Happy birthday to my beautiful fiancée leanne have a good one xx".
6. The applicant questioned the authenticity of that text message on the ground that the deceased would not have written it because he could not read and write and especially would not know how to spell "fiancée". Some of the declarations state, on the other hand, that he could not read and write "well", which is not the same thing. As he had attended Riverstone High School and was able to hold a position as a truck driver, it is unlikely that he could have been completely illiterate. It is likely that he was the author of that text, which was sent some 7 months before his death.
7. A text message from Michelle Lazarus to Ms McLachlan dated 23 November 2017 recognizes that the couple's relationship endured until his death: "I know he loved u very much & u will always have his heart… Once he has fully crossed over in a couple of months I will take u to my friend Karina she is a medium" and proceeds to explain how the medium would enable Ms McLachlan to contact James Farrell in the world beyond. At the hearing Ms Lazarus admitted sending the text but said that at the time she did not know if he did love Leanne, but simply said it in order to comfort her. The amount of specific detail in the text makes that explanation improbable, however.
8. There is also the applicant's "To whom it may concern" letter signed before a New South Wales Justice of the Peace on 19 December 2017 giving her address as North Lakes, Queensland. It reads, "I Christy Lee Jack (25/1/1989) am able to confirm that Leanne Newac was in a domestic de facto relationship with my father James Alfred Farrell for approximately three years. They were engaged to be married at the time of his death and I had previously discussed wedding plans with them and they intended to hold their wedding ceremony in February 2018" (exhibit A5). At the hearing she was shown the letter, which contradicted the position she was taking, and explained it as having been written at Ms McLachlan's suggestion, in order to recover some of her father's possessions and especially to retrieve his ashes from the applicant's grandmother. Nevertheless, the change of narrative for expediency reasons does not greatly assist the applicant's case.
9. Racquel McLachlan, a daughter of the second respondent, related in her statutory declaration of 24 December 2017 (exhibit R2, tab 62) how the couple had moved in together soon after renewing contact: "Jim and my mum were so in love we had never seen my mum so happy. Jim told everyone who would listen how much he loved her and how much she meant to him. They chose not to take things slowly from the start due to them both feeling like they had already lost so much time and therefore moved in together quickly as Jim moved from Brisbane to be with my mum".
10. The relationship had not at all times been idyllic, however: "A few months ago they were having some disagreements around my mum's work and Jim moved out for about six weeks. They stayed in touch and sorted through things and Jim moved back into the property at ** Bluestone Drive, Glenmore Park, Jim still for a period kept paying for the room at the place he resided for a short time…." In her oral evidence at the hearing Ms McLachlan conceded that there had been a break in cohabitation, but put its duration at "a couple of weeks".
11. On the basis of all the evidence, I find that a relationship between the deceased and Ms McLachlan began in late 2015 and continued, though with one or more interruptions, until his death in November 2017.

(b) The nature and extent of their common residence

1. Ms McLachlan's case is that the deceased moved in and lived with her and her children Tahli and Jai in leased premises at Richmond, and when that property was sold, at Glenmore Park. The children support that proposition in their statutory declarations, as does Kyra-Leigh Anstis, who moved in to live with her partner Jai in late 2016. Patricia Foster, also, referred to the deceased's move from Deception Bay into Leanne's home at Richmond, where Ms Foster would often visit them. There is a quantity of other evidence to the same effect.
2. The applicant's position, however, is that the deceased was never living with Ms McLachlan, but after his return from Queensland stayed with his stepdaughter Chloe Hudson, then with his friend David Tillman and for the last eight months of his life with his friend David Edford, who rented him a room at $130 per week. There is a quantity of other material supporting the applicant's position also.
3. But Chloe Hudson, who made four separate statutory declarations at various times, did not mention in any of them that her father had been living with her, whether at Whalan or at Werrington. One would think that if she had accommodated her stepfather for any significant length of time, she would have mentioned it.
4. David Tillman's statutory declaration dated 23 January 2018 (exhibit R2, tab 65) states that after the deceased relocated back to Sydney in approximately early 2016, "He then lived and stayed with both myself and his daughter Chloe on and off for a period of time" (my emphasis). That vague and possibly evasive statement has little or no probative value.
5. Patricia Foster declares that the deceased "did not at any time live with Dave Tillman [2015 - 2017] when he returned to Sydney to start his life with Leanne and would only stay at his stepdaughters occasionally to either mind her children whilst she went out or if Leanne and Target [her nickname for the deceased] had a disagreement he would then go and stay at Chloe's overnight and return home to his and Leanne's home the following day". "What Dave Tillman is stating regards Leanne and Target's relationship is false" she added. "Dave Tillman was very jealous of the relationship between Leanne and Target as he no longer wanted to go out drinking with Dave as he was very content with spending time with Leanne".
6. As the applicant alleges that the deceased lived with his friend David Edford for the last eight months of his life, up to and including the day of his death, Mr Edford could, one would think, offer evidence that would be important in the resolution of this issue. But in all the material filed by the parties, I have found no evidence of any kind from Mr Edford, no statutory declaration, or letter or text message or anything of the kind, nor does his name appear in the applicant's list of 19 supporting deponents in her statutory declaration (exhibit A1), nor did he give oral evidence. No explanation for the absence of evidence from Mr Edford was forthcoming.
7. Though it does appear that the deceased left some belongings at Mr Edford's residence (because there was no room to store them at the Glenmore Park residence), which Ms Lazarus, Ms McLachlan and Chloe Hudson proceeded to collect after his death, the evidence indicates that the deceased was not living there but with Ms McLachlan, although with some interruptions. But as the tribunal said in Bennett, "there is no requirement of uninterrupted cohabitation for a minimum period" (at [35]). In Garrick also there was a period of temporary separation (at [10]). The parties had lived together in a de facto arrangement for only 1 year and 4 months. In Asquith there had only been two months' cohabitation
8. The applicant pointed out that in several contemporaneous documents Chloe Hudson's Whalan address is given as the deceased's address. It appears, however, that the deceased had begun to use her address as a kind of postal address on his return from Queensland and had not changed it for all purposes. Thus, Chloe's later address at Werrington is not recorded. The New South Wales registration for one of his vehicles gives the Whalan address, but also records that he is a pensioner, which had not been the case since mid-2016.
9. On the other hand, there are at least 15 commercial or official documents giving the address of James Farrell as ** Bluestone Drive, Glenmore Park. They include PAYG payment summaries, superannuation correspondence, valuation certificates, penalty notices, Office of State Revenue letters, a life insurance policy, an RMS registration notice, a toll notice, a driver's licence and the lease agreement for ** Ironbark Crescent, Cranebrook, signed by the deceased. There is also is death certificate, giving his address at death as ** Bluestone Drive, Glenmore Park. Ms Sneddon said at the hearing that she took that address from his driver's licence as being his last known address.
10. The evidence thus shows that the parties were living together at Richmond, and later at Glenmore Park, for just under two years, though not without interruption, and I so find.

(c) Whether a sexual relationship existed

1. It is not disputed that a sexual relationship existed for the duration of the cohabitation.

(d) The degree of financial dependence or interdependence

1. As these are matters peculiarly within the knowledge of the couple, Ms McLachlan has supplied most of the evidence on the point. In her statutory declaration, which is summarized above (paras 43 to 45), she states that in the beginning of the relationship, she had paid for most costs, financially supporting the deceased, her children and herself, with the deceased's contribution being minimal as he was on sickness benefits and was unable to work because of his heart condition.
2. After they had moved to Glenmore Park in April 2016, the deceased had recovered his driver's licence and had secured employment as a truck driver. From that time they shared all financial expenses of the household. She managed the financial side of things, rent, clothing, shoes and gifts. They did the grocery shopping together on Saturdays unless the deceased was servicing their cars or mowing lawns.
3. The picture is thus one of dependence rather than interdependence in the early stages as the deceased was unemployed. But after approximately April 2016 they shared expenses and the relationship became one of mutual financial interdependence.

(e) The ownership, use and acquisition of property

1. It is not in dispute that when the parties reconnected in late 2015, the deceased had been living at Deception Bay in accommodation provided by the Queensland housing commission in conjunction with Marrin Weejali, an Aboriginal services unit of the State government. He retained his lease for a few months after the parties returned to New South Wales but formally terminated it in mid-2016. By that time they were living at Richmond in premises leased by Ms McLachlan. When they moved to Glenmore Park as the Richmond property had been sold, Ms McLachlan signed the lease herself.
2. The applicant submitted that the absence of the deceased's name on the Glenmore Park lease showed that showed that there was no de facto relationship or cohabitation. Ms McLachlan's explanation in her written and oral evidence was that his name was not placed on the Glenmore Park lease because they were at the beginning of their relationship and, more importantly, the deceased was unable to work and had no income.
3. That appears to be a reasonable explanation. By the time the deceased had resumed working, after April 2016, Ms McLachlan said, they had already decided to move to another property together, and when they did arrange to relocate to Cranebrook, both parties were named as joint lessees and the deceased signed the lease. I therefore find that the parties jointly acquired a leasehold property interest when it had become practicable and convenient to do so.

(f) The degree of mutual commitment to a shared life

1. There could be no stronger evidence of a mutual commitment to a shared life than a genuine engagement to be married. Racquel McLachlan stated that she had helped the deceased to select a ring for that purpose, and that they had kept the process a secret because he wanted to surprise Ms McLachlan.
2. The applicant gave evidence that she doubted whether the ring was in fact an engagement ring. But when a man of no more than average means presents a diamond solitaire ring valued at $2636 to the declared focus of his affections, that can be taken as unequivocal evidence of an intention to become engaged.
3. Before proposing to her, the deceased telephoned her mother, Mrs Irene McLachlan and asked if he could come down to their house because there was something he wanted to ask her husband. "James came to our home in early July 2016 and asked my husband Desmond McLachlan for Leanne's hand in marriage telling us that he loved our daughter more than anything and promised to love and take care of her. My husband and myself both agreed that we would be very happy for James to marry our daughter and told him that he is already part of the family. From that day on James always referred to me when talking as mother-in-law. James was at that time also paying off the engagement ring that he had chosen with assistance from Leanne's daughters as he had it on layby…. The night James proposed Leanne phoned me afterwards and said you knew the whole time you were all in on it. And we laughed about it together that we were all able to keep such a secret from her. Leanne was over the moon at her beautiful engagement ring…." (Exhibit R4, attachment A). Asking Ms McLachlan's parents for her hand in marriage, whatever else it may show, certainly attests to a serious commitment to a shared life together.
4. The deceased then obtained a life insurance policy in his own name without consulting Ms McLachlan which named her as 100 percent beneficiary. The applicant contended that as the deceased had difficulty reading, writing and understanding forms, Ms McLachlan had probably filled in the application, naming herself as beneficiary or telling the deceased to do so. That, however, is unsupported speculation and Ms McLachlan stated that she did not know the deceased was obtaining the policy.
5. The couple selected the property at Cranebrook, partly because they needed more room for vehicles and other purposes and partly because they intended to hold the wedding ceremony in the back garden. They planned to live there while they saved to purchase a house that they could renovate together up on the Central Coast eventually.
6. They were making wedding plans, as their friend Kerry Smallman stated in her statutory declaration of 2 August 2018 (exhibit R4, annexure A), as did others. A number of deponents said that, knowing the deceased's inconstant habits where women were concerned, they doubted whether the marriage would last.
7. Given his picaresque lifestyle up until then, that would certainly have been a possibility. His Queensland partner Lisa Warne stated that she and the deceased had ended their relationship in is December 2015 because of his "being unfaithful. He continued to try to make the relationship work for months after James moved to NSW. James contacted me many times over the last two years after we separated, he would try and see if we could make a go of it". Another friend, Karren Inskip, claimed she was having a sexual relationship with the deceased up until the day he died (exhibit A1, annexures B, D, Y).
8. The point at issue, however, is not whether the relationship would have endured or whether his philandering would have destroyed his intended marriage as it had his first marriage, but whether the parties had a mutual commitment to a shared life at the time of his death. On the basis of all the evidence I find that they did.

(g) The care and support of children

1. The second respondent gave evidence that the deceased assumed parenting roles that demonstrated his caring and supportive role for her children, Tahli and Jai, who provided statutory declarations to that effect dated 6 August 2018 (exhibit R4, annexure I). His contribution Included caring for them in Ms McLachlan's absence and driving them to wherever they needed to go. They regarded him as part of the family.
2. There was evidence (though not uncontested) that frictions developed between the couple over the behaviour of her children, and that they might have led to the temporary separation referred to above. Assuming that was the case, it appears, for example from Racquel McLachlan's statutory declaration, that they worked out their differences on that subject and the deceased returned to their home at Glenmore Park

(h) The performance of household duties

1. Ms McLachlan stated, as is noted above, that during the initial months they were living together, the deceased took care of the pool, gardens and lawns in order to keep the rental property maintained, as she was working at that time and he was not. He would prepare many of the family meals, as well as undertaking the cleaning and washing. He cooked a barbecue breakfast every Saturday, as well as other barbecues when they had visitors. After they moved to Glenmore Park, he recovered his driver's licence and returned to work. From that time they shared all financial expenses of the household, as well as household duties.
2. The evidence on that point was not contested. As Ms Jack's case was that the couple had never been living together it would have been illogical to do so, unless she had argued more than one possibility as alternatives, which she did not. I therefore find that there was a sharing of household outside and inside duties in this case.

(i) The reputation and public aspects of the relationship

1. The evidence on this point is conflicting. Some of the applicant's evidence states that the declarants were unaware of the relationship or the engagement, although they would have expected to have heard about it, but the deceased had not mentioned it and they had not met Ms McLachlan until the funeral. Evidence for the second respondent, however, speaks of delight and celebration in her family at the announcement of the engagement and discussions about wedding plans.
2. In light of that conflict, it is appropriate to give weight to contemporaneous records, most of which have already been referred to. They include the numerous Facebook posts shared by the deceased to Ms McLachlan in December 2015, the Facebook post of the deceased referring to Ms McLachlan his fiancée and his message to her dated 20 December 2015 in relation to changing his "Facebook status" to be "in a relationship", "I am ready babe Been ready 2 hour weeks [sic]" (exhibit A4).
3. There is also the Facebook post by Mrs Isabella Farrell dated 26 November 2017, which reads, "My beautiful son I will have my memories but I want u in my arms taken from us so early, YR life Was just starting to fit together a wedding to look to ….." (exhibit R4, annexure C). In Asquith, the tribunal considered that a Facebook post made by the deceased indicated his recognition of a relationship (at [77]). It is not necessary that everyone in the deceased's circle should have been informed. In Asquith, the deceased had not informed his father about his de facto relationship (at [76]).

Conclusion

1. The parties in this application have presented starkly opposing narratives. The bulk of the contemporary documents, however, favours the respondents' case that a de facto relationship existed. The marked changes of position by the applicant and Chloe Hudson over the course of the controversy do little to disturb that conclusion. There is also the lack of oral evidence, or probative evidence, or in the case of David Edford the unexplained absence of any evidence at all, on important points from key participants. The s 23C(3) criteria thus point to the existence of a de facto relationship. I therefore find that the applicant has not established on the balance of probabilities that the available information warrants altering the register by removing the name of the second respondent as the deceased's de facto.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2019