NSW Trustee and Guardian v Payne

The statutory setting

1. Section 111 of the Succession Act states that: If an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate.
2. Section 104 provides: A spouse of an intestate is a person - (a) who was married to the intestate immediately before the intestate's death, or (b) who was a party to a domestic partnership with the intestate immediately before the intestate's death.
3. Section 105 provides: A domestic partnership is a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010, or a de facto relationship that - (a) has been in existence for a continuous period of 2 years, or (b) has resulted in the birth of a child.
4. The expression "de facto relationship" is not defined in the Succession Act. Section 21C of the Interpretation Act provides: (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.
5. It is this definition that is of critical relevance here. However, it is also appropriate to note some matters of statutory history because some of the authorities to which I was referred in argument concerned the application of a previous, slightly different definition of that same expression.
6. Until the commencement of Chapter 4 of the Succession Act on 1 March 2010, the intestacy provisions were to be found in the Probate and Administration Act 1898 (NSW). Section 32G of that Act defined "de facto relationship" to have the same meaning as the definition in the Property (Relationships) Act 1984 (NSW). Section 3 of the Succession Act, up to that point, also defined the expression by reference to the Property (Relationships) Act.
7. The definition in the Property (Relationships) Act was as follows: 4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
8. It is important to note subsection (2) of that definition. It stated that "all of the circumstances of the relationship", including those identified in the balance of the provision, were to be taken into account in "determining whether two persons are in a de facto relationship."
9. On 19 May 2010, s 21C of the Interpretation Act came into force. At the same time, the reference in s 32G of the Probate and Administration Act to the definition of "de facto relationship" was removed. It thereafter contained, and continues to contain, a note that the expression is now defined in s 21C of the Interpretation Act. Also on 19 May 2010, s 3 of the Succession Act was amended to remove the reference to the definition of "de facto relationship" in the Property (Relationships) Act. The effect of these amendments is that the inquiry into the requirement that a couple be "living together" is separate from the inquiry of whether they are a couple.
10. It follows from all of this that cases decided by reference to the law as it stood prior to the commencement of the new s 21C of the Interpretation Act in 2010 involved a subtly different definition of the expression "de facto relationship". That difference, although subtle, is one that must be borne in mind in identifying the basis on which those earlier cases were decided.

Facts

1. The plaintiff did not lead any substantive affidavit evidence addressing the nature of the relationship between Ms Payne and the deceased. However, the plaintiff has adduced some documentary evidence.
2. The first and second defendants relied on a number of affidavits from themselves and from others who knew David and Margaret and who were in a position to describe their relationship. Those witnesses were: 1. Christopher and Bruce. 2. Ms Judith Myra Downes, David's neighbour from around 1968 until his death. 3. Mr Phillip Lynch, Margaret's nephew, the son of her sister. 4. Ms Catherine Elizabeth Stewart, a sister of Christopher's ex-wife. 5. Ms Kim Consadine, another sister of Christopher's ex-wife. 6. Ms Kellie-Ann Coutts, Margaret's granddaughter. Kellie-Ann is the daughter of Margaret's now deceased adopted daughter Carolyn. 7. Ms Chantelle Louise Payne, Margaret's granddaughter. Chantelle is Christopher's daughter.
3. Many of the witnesses gave evidence that they were familiar with one or other of the statutory definitions of the expression "de facto" and that they believed that Mr Hooper and Mrs Payne were in such a relationship. Evidence in that form is perfectly understandable given the nature of the issues in dispute. However, I have not placed any weight on those conclusory opinions in my consideration of the matter.

The relationship between David and Margaret

1. David was born on 23 November 1931. From a very early age, and possibly for his whole life, David lived in a house at Matraville. I use the word "lived" here because that is the word used by the witnesses to describe this aspect of David's circumstances.
2. Throughout his early adulthood and up until his mother's death in about 1989, David lived at the Matraville house with his brother, John, and their mother, Hannah. David appears to have been a carpenter by trade. For many years, he and his brother owned and operated a timber mill in Botany. After their mother's death, David and John continued to live together at the Matraville house until John moved to the Goulburn region in the 2000s. John disappeared in unfortunate circumstances in 2011 and is presumed dead.
3. After John moved out, David lived alone at the Matraville house until his death in 2018.
4. David and his family were deeply religious. They observed the practices and followed the beliefs of the Brethren faith. They did not however attend organised church services. Rather, they conducted their own services on Sundays at the Matraville house. Friends and neighbours attended their services. They also conducted a Sunday school of sorts for young people. From at least his early adulthood and up until his death, David conducted Sunday services at the Matraville house, including for many years late in his life when the only attendees were he and Margaret.
5. Margaret was born Margaret Sylvia Wiblem in around 1930. She married Noel Payne and they had two children: Bruce, born in 1963; and Christopher, born in 1966. They also adopted Carolyn Payne (later, Carolyn Coutts), who was the daughter of Margaret's sister, Susan. Their family home was in Waverley.
6. Margaret and Noel separated in 1966 and were divorced in 1971. Margaret and the children lived briefly in Rockdale and Surry Hills before Margaret secured a NSW Housing Commission unit at Chifley in 1968. Margaret lived at the Chifley unit for the rest of her long life. The children lived there with her until leaving home.
7. Margaret, who was also deeply religious, had already met David through church functions many years before she moved to Chifley. From the time she moved to Chifley, she and her children began attending David's services at the Hooper residence in Matraville.
8. David and Margaret commenced a close personal relationship in about 1971. From that time and up to David's death in 2018, they enjoyed an unbroken, close and loving relationship. They were ever-present in one another's lives. They attended family celebrations together as a couple, including birthdays, weddings, anniversaries, Christmas and other occasions. They enjoyed virtually all of their leisure time together, such as by going on outings to the Royal National Park, Centennial Park, or the nearby beaches. These outings often involved other members of Margaret's family, including children, nieces and cousins. Margaret had a large and loving family and, by all accounts, David was considered a part of it because they regarded him as Margaret's partner. I note that he was always introduced as Margaret's partner. It was rare for any member of the extended family to see Margaret without David.
9. David was a father figure to Margaret's children. Bruce and Christopher continue to see him as such. Their own children, and Carolyn's children, considered him to be their grandfather. He was active and involved in the lives of Margaret's children and grandchildren. He did all of the things that one might expect a loving parent or grandparent to do, such as attending celebrations and events, playing backyard cricket and going to the beach with them, helping out with handyman tasks and so on. For many years, David kept a horse in the large yard behind the Matraville house. A special treat for the children and grandchildren was to visit David at Matraville to see the horse.
10. David and Margaret did not marry but they did seriously contemplate it. For many years, Margaret expressed the view that she would not marry David until her former husband, Noel, had died. Shortly after Noel died in 1991, Margaret and David became engaged. David gave Margaret his mother's sapphire and diamond engagement ring, which she proudly showed to her daughter and granddaughter. In the end, though, they never married. David held the belief that, according to the Bible, marriage was "forever" and so it was not appropriate to marry a divorced person.
11. The evidence shows that David and Margaret had an intimate sexual relationship over many decades. For the entirety of the period between 1971 and 2018, with only rare exceptions, David visited Margaret at the Chifley unit on a very regular basis, save for Sundays when she visited him at Matraville to attend his services. David configured the door to Margaret's bedroom so that it could be locked in order to give them privacy when the children were young or when grandchildren were visiting. They were an affectionate couple throughout all 47 years of their life together. They held hands in public. They kissed one another when they said hello and goodbye.
12. David was involved in the lives of Margaret's children and their children. He appears to have had strong and lasting relationships with them. He continued to maintain these relationships well into his old age. Even as an old man, he would buy a barbecue chicken which he would deliver to Leeanne (Christopher's ex-wife) for her evening meal every Thursday.
13. From the time his mother died in 1989, David would ride his bicycle the short distance from his Matraville house to Margaret's Chifley unit in the mid-afternoon. He would stay for dinner, which she would cook for him or which he would provide, and they would watch television or engage in other social or leisure activities. He kept clothes and other personal items in her bedroom and in the spare room. Late in the evening, David would kiss Margaret goodbye and then ride his bicycle back to the Matraville house.
14. David and Margaret shared the use of a car for many years. It was owned by Margaret but generally only driven by David, who also maintained it. David also looked after the Chifley unit as if it were his own. He made a cat-flap for their cat, Fluffy, who lived at the unit.
15. Margaret and David shopped together. There was a degree of overlap in their provisioning, because David almost invariably ate dinner with Margaret (except on Sundays), but she also purchased some items for use by him at the Matraville house. Margaret did David's washing.
16. David did not own a telephone. When required to provide a telephone number, he provided Margaret's home telephone number, a record of which he kept in his wallet.
17. David also kept a key to the Chifley unit. He would occasionally have parcels delivered there, which he would collect even if Margaret was not home. When Chantelle locked herself out of the Chifley unit when she was staying there her HSC year, David came over to let her in with his own key.
18. David did stay overnight at the Chifley unit, but this was relatively infrequent. The evidence as to how often it occurred was rather indistinct. It probably happened more in the early years than it did in the later years. It certainly happened more than several times each year even in later years, for example when it was raining and David could not ride his bike home or when he stayed especially late watching television. When the cricket or tennis was on television, he would stay over much more often. However, it was not a weekly occurrence.
19. Margaret and David were devoted to supporting one another into their old age. As Margaret began to lose her sight, David provided her with support and physical assistance. When David was no longer able to drive, he would push his bicycle to the Chifley unit, and they would otherwise follow the same daily habits as they had done for decades. Instead of driving, they would take the bus to go shopping or to accompany one another to appointments. These are all tasks that Margaret would have had difficulty accomplishing without David's support.
20. There were numerous photographs in evidence which showed them as a couple spanning the whole of their later adult lives. The photographs attest to the fact that they enjoyed a remarkably long, settled and happy relationship as a couple.

"Living together"

1. In Yesilhat v Calokerinos [2021] NSWCA 110 ("Yesilhat") at [134], Brereton JA (with whom Bathurst CJ agreed) said that "living together" is indispensable to the existence of a de facto relationship within the meaning of s 21C of the Interpretation Act. His Honour explained that "living together" is: "…a concept which involves mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis. It is not essential to a finding of a de facto relationship that there be unbroken common residence, and it is not incompatible with the existence of a de facto relationship, as defined, that a party spend some nights each week elsewhere than in the "matrimonial home". This is supported, in the case of a de facto relationship, by Interpretation Act, s 21C(3)(b), which in referring to "(b) the nature and extent of their common residence", acknowledges that its nature and extent may vary. Many authorities, some of which are referred to below, acknowledge that continuous full-time cohabitation is not essential, although the reason for the absences will be relevant: thus absence for work travel, or leisure, will rarely if ever be inconsistent with "living together", whereas absence because the person is maintaining another household might well be so, even if not invariably. However, some element of common residence is indispensable. As will appear, no authority holds that persons can "live together" or be members of the same household if they do not, to some extent, have a common residence."
2. At [137] his Honour said that he was aware of no case in which two people who have never lived in a common residence have nonetheless been held to be in a de facto relationship. His Honour did not completely foreclose the possibility that there had ever been such a case, but did doubt that such a case existed. His Honour's subsequent analysis of the authorities makes good his final observation in paragraph [137], namely that the cases "go no further than accepting that full-time cohabitation is not essential."
3. For example, in Weston v Public Trustee (1986) 4 NSWLR 407, the deceased stayed with the plaintiff in her home on weekends but would return to his own flat for several days each week. The plaintiff was held to be in a de facto relationship, but both Young J (as his Honour then was) and Brereton JA considered it to be a "borderline" case in which the distinct element of common residence could be made out because they lived together under the one roof for at least several days every week.
4. His Honour also noted the analysis of Murphy J in Jonah & White (2011) 258 FLR 236; [2011] FamCA 221. In that case, Murphy J explained that the touchstone of the Queensland definition of a de facto relationship, which was essentially the same as that which formerly applied in NSW, was the notion of "coupledom", or living together on a genuine domestic basis. That was a case in which the requisite element of "coupledom" was not present. The couple in question conducted a clandestine relationship, coming together for a couple of days every two to three weeks.
5. The notion of "coupledom" was taken up by Young AJ in NSW Trustee and Guardian v McGrath [2013] NSWSC 1894, where his Honour held (again describing the case as "borderline") that a couple who had made a conscious decision not to marry but who stayed together most weekends were in a de facto relationship. As Brereton JA pointed out, even in that borderline case there was an element of common overnight residence each weekend.
6. In NSW Trustee and Guardian v McGrath, Young AJ said: "However the concept of living together does not relate to sharing a particular residence but rather what Murphy J said in Jonah v White, whether a couple manifests a relationship of "coupledom" which involves the merger of two lives."
7. In the light of the careful analysis by Brereton JA of the authorities to which Young AJ referred in support of that proposition, and with the greatest of respect to Young AJ, I am reluctant to accept that what his Honour said about "coupledom" entirely states the position. Rather, as explained in Yesilhat, the concept of living together involves at least some "element of common residence."
8. This was also the approach taken by Hallen J in Pollock v New South Wales Trustee & Guardian [2022] NSWSC 923 at [417], where his Honour helpfully summarised the matters to be taken into account in determining whether parties are "living together".
9. It is not difficult to see why the facts of Yesilhat did not support a finding that there had been at least some element of common residence: see Brereton JA at [153]. The plaintiff and the deceased in that case had had a close, affectionate and enduring relationship for several years. But they invariably met at the deceased's pharmacy, where neither of them could be said to live, for several hours on several days of the week. The plaintiff never treated the pharmacy as a place of residence and kept no personal items of any kind there. There was no bed or shower. He never slept there overnight.
10. In the present case, however, the position is far more difficult to discern. As the plaintiff submitted, this is a difficult case.
11. David and Margaret enjoyed an unusually close and lasting relationship as a couple. They were about as close and committed to one another in an emotional sense as a couple could be.
12. David and Margaret conducted their lives as a couple according to deeply ingrained habits, which involved daily visits over a period of decades. For six days of most weeks between 1989 and 2018, David visited Margaret in her home, except for those days on which she was visiting him (that is, Sundays) or when they were out and about as a couple. It is no exaggeration to say that a very significant portion of David's waking life was spent living with Margaret, much of it at her Chifley unit. I have no doubt that Margaret would not have considered him to be a mere visitor in her unit. It is where Margaret cooked and cleaned for him, where they kept and enjoyed the company of their pet cat, where they left from and went back to before and after their shopping and other appointments, and where they spent the overwhelming portion of their leisure hours, particularly in later years.
13. In my view, these features of the relationship between David and Margaret involve elements of co-habitation or common residence and may appropriately be seen as elements of the kind of "mutual living" to which Brereton JA referred in Yesilhat at [134]. However, the statutory question is whether David and Margaret were "living together", not whether there were merely "elements of common residence" or "elements of co-habitation." The difficult question here is whether these elements of mutual living are sufficient to bring their circumstances within s 21C of the Interpretation Act, despite the fact that they maintained separate homes.
14. The legal meaning of the expression "living together" in s 21C, as explained in Yesilhat, is not very different from its everyday meaning. As I have mentioned, it requires "mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis." The words of qualification in that sentence, "at least to some extent", reflect the fact that no two relationships are the same. It would be impossible to state the precise amount of "mutual living in a common residence" that is required in order for a couple to be "living together" within the meaning of the statute, but it must be material. Whether or not such elements are sufficiently material will depend on an assessment of all aspects of the couple's relationship.
15. In Lynam v Director General of Social Security (1983) 52 ALR 128; [1983] FCA 274, Fitzgerald J said, albeit in a slightly different context at 131: "Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test."
16. I note that this passage was referred to by Hallen AsJ (as his Honour then was) in Drury v Smith [2012] NSWSC 1067 at [101] in the context of explaining the meaning of the expression "de facto relationship" generally. However, it is appropriate to recognise that an assessment of whether a particular couple was "living together" invites a similar approach. The question cannot be answered merely by reference to the number of days spent sleeping under the same roof, although that will always be a significant factor.
17. This is not to blur the distinction between the question of whether a couple are "living together" and the determination of whether they had a "relationship as a couple". As Brereton JA pointed out in Yesilhat, these are distinct questions: [131]. It is to do no more than recognise that both questions involve an assessment of a couple's circumstances, which must be evaluated in the light of all of the evidence.
18. The elements of mutual living to which I have referred at paragraphs [51]-[52] above are, in my view, material. When assessed in the light of the overall relationship between Margaret and David, particularly in the light of the matters to which I referred at paragraphs [32]-[38], they are sufficient to satisfy the definition of s 21C.
19. There are, perhaps, already too many cases about de facto relationships in which the Court has described the case to be "borderline" or "exceptional". However that may be, it is undeniable that David and Margaret's relationship was most unconventional. Although David maintained a separate home to which he usually returned, there was sufficient regularity and permanence about his presence in Margaret's home over so many decades, not as a mere visitor but as her devoted life partner, that it is appropriate for them to be seen, in law, as having been living together as a couple. They were therefore in a de facto relationship within the meaning of s 21C.

ORDERS

1. The declarations and orders of the Court will be as follows: 1. Declare that the late David Bernard Hooper, who died on 22 September 2018 (the deceased), was in a de facto relationship with the late Margaret Sylvia Payne for a continuous period of at least two years as at the date of his death. 2. Order, pursuant to rule 54.3(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff, in its capacity as administrator of the estate of the deceased, distribute the intestate estate of the deceased to Bruce Payne and Christopher Payne, being the administrators of the estate of the late Margaret Sylvia Payne. 3. Order that the parties' costs of the proceedings be paid on the indemnity basis out of the deceased's estate.

Amendments 30 October 2024 - [56] - "to do more" amended to "to do no more" 30 October 2024 - Solicitors for the first and second defendants amended from "Moin Morris Schaefer" to "Morris Succession Lawyers" 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: 30 October 2024