O'Neill v Martini & Anor [2012] QSC 198

[1] Douglas J: The applicant claims to have been the de facto partner of the deceased for more than two years before his death. If she were she would be entitled to seek better provision from his estate than he made for her, which was nothing.[1]

[2] If she were not his de facto spouse she is not entitled to anything. My conclusion is that she was in some form of a relationship with the deceased for a limited period of less than two years before his death, which was probably not a de facto relationship, so that she has no claim against his estate.

[3] The deceased, Manuel Rodriguez, died on 8 July 2006 leaving a will executed on 18 May 1995 which left his estate to his brothers who lived in Leon in Spain. The respondent, Rudisindo Alonso, is his executor. Mr Rodriguez had never married.

[4] The applicant's case is that she and Mr Rodriguez had been partners in a de facto relationship since October 2003. For reasons which will become obvious I do not believe her. The critical issue is whether such a relationship existed from 8 July 2004.

[5] Mrs O'Neill and her two children, Kymberly and Griffith O'Neill, gave evidence that the relationship between her and Mr Rodriguez began in late 2003 with Mr Rodriguez moving into a property where they lived at Penguin Street, Inala in December 2003. Their version is the parties became engaged in May 2004. Then Mrs O'Neill would have been about 55 years old.

[6] Mr Rodriguez's own property was in Richlands at 188 Pine Road and there is a significant body of evidence that he continued to live there during the period between 8 July 2004 and his death although he may have spent some time at Mrs O'Neill's house which included regular occasions when he spent the night at her house. The significant issue is when that regular relationship began.

[7] One of the significant, disinterested witnesses was Antonio Cuzzolaro. He knew both the deceased and the applicant and the applicant's estranged husband who died in July 2004. Although Mrs O'Neill and her husband were estranged she made the arrangements for and attended his funeral on 27 July 2004. Mr Cuzzolaro and his wife provided assistance and support to Mrs O'Neill and her family during that time.

[8] He was informed in about October 2004 by Mrs O'Neill that she had to go to the Philippines for a court case. She asked him and his wife to look after her children during that period. He and his wife drove her to the Brisbane Airport on 31 October 2004 so she could catch her flight to the Philippines. While she was away he and his wife drove her children to work and picked them up from work helping to provide stability and support for them.

[9] He visited Mrs O'Neill's residence when she was overseas during that period and did not ever see Manuel Rodriguez there. At that time he would visit Mr Rodriguez at his residence at 188 Pine Road, Richlands. He was in the habit of driving him around to do his shopping. During that period Mr Rodriguez did not indicate to him that he was residing at Mrs O'Neill's residence. At the time Mr Rodriguez did not have a car, did not normally use public transport or taxis but relied on Mr Cuzzolaro to drive him around.

[10] On one weekend during that period in late 2004 he said that Mr Rodriguez was at his home and Mrs O'Neill's children had come there for a meal when Mr Rodriguez reintroduced himself to them saying that when he had last seen them they were in North Queensland and very young. The children denied that the event had occurred but I was sceptical of those denials, partly because of their refusal to accept that they had been present at Mr Cuzzolaro's house at least on one occasion as shown in exhibits 3 and 4, two photographs of them taken at his house.

[11] He and his wife picked up Mrs O'Neill from the airport on 12 December 2004 and it was some time after that that Mr Rodriguez mentioned to him that he had run into Mrs O'Neill at a shopping centre and that she kept following him around. He said that Mrs O'Neill then started referring to Mr Rodriguez as her "new boyfriend". By March 2005 Mr Rodriguez had bought a car and was driving himself around.

[12] Whenever he visited Mr Rodriguez's house Mr Cuzzolaro did not see any personal belongings of Mrs O'Neill. In a conversation with Mr Rodriguez in December 2005 he told Mr Cuzzolaro that he was residing at his own house and that Mrs O'Neill was staying with her children. He said that he was seeking to maintain his own solitary personal living space.

[13] Rudisindo Alonso, the executor, had known Mr Rodriguez since before 1972 when they moved to Australia at the same time. He kept in contact with him on a weekly or fortnightly basis and was not a beneficiary under the will. Over the last three years of his life he phoned Mr Rodriguez at least once a week and visited him every one to two weeks at his property at Pine Road, Richlands. During his visits over the last three years of his life he observed no one appeared to be living with him and he saw no evidence of any female companion or personal effects of a female companion in the house at Richlands.

[14] He said that, during the period from October 2004 to November 2004, he visited Mr Rodriguez, to his memory, on two occasions at his house in Richlands. He said that Mr Rodriguez crashed his car in 2002 and did not replace it until March 2005. About a year before Mr Rodriguez's death Mr Alonso had a conversation with him where he complained about a woman making unwanted telephone calls to him and asking for money and favours for herself and her children. He did not see the applicant or her children at Mr Rodriguez's residence. Mr Rodriguez had not discussed Mrs O'Neill with him before mid 2005.

[15] Jose Vidal, who swore an affidavit for the respondent but was not cross-examined, knew Mr Rodriguez well in the past but had lost touch with him after he, Mr Vidal had had an accident. He saw him, however, about four times in the two months before he died, twice at the Inala Shopping Centre and twice at the Forest Lake Hotel. He said that he appeared then to be in terrible condition with very dirty clothes. Mr Rodriguez told him that he was living by himself. He did not know Mrs O'Neill and said that Mr Rodriguez never spoke about Mrs O'Neill to him.

[16] Maria Stephenson also knew Mr Rodriguez for about 12 months before he died and used to speak to him by telephone approximately once every three weeks to help him practise speaking French. She was not aware of him living in a de facto relationship with Mrs O'Neill but said that Mrs O'Neill approached her and asked her to say that she was living with Mr Rodriguez at the time of his death. She told Mrs O'Neill that she would not say that because it was not true. She also was not cross-examined.

[17] Similarly, a Gladys Cordo said that she saw Mr Rodriguez about a year before he died when she visited his home which she said was disorderly and dirty. To her observation Mr Rodriguez was the only person living there then and he told her that he did not visit anyone else then.

[18] Danys Bone also knew Mr Rodriguez and last saw him about one and a half years before he died at Mr Alonso's house. She said he was on his own and she could not recall ever seeing him with a woman.

[19] As against that evidence, Mrs O'Neill swore a number of affidavits that in about October 2003, while shopping with her daughter, she met Mr Rodriguez whom she had last seen after March 1998 when she and her husband separated.

[20] She said that, later, in October 2003 he came to her house unannounced and from then on came to her house every day to see her and her children and would often invite her to dinner, taking her to a restaurant in Ipswich and a club in Mt Gravatt. She said they became very close to each other in a couple of weeks. She said that in December 2003 he asked if he could move in with her and her children and they agreed that he should move in with them. At that time she and her children were living in rental accommodation at 53 Penguin Street, Inala. She said that they became engaged in May 2004, that he gave her an engagement ring and they talked about getting married in the Philippines.

[21] In August 2004 her daughter and she signed a document for a "rent to purchase" contract of a house at 15 Josey Street, Redbank Plains. She and her children moved into that house and in October 2004 she had to go to the Philippines. She said that her children told her that the deceased, Mr Rodriguez, took very good care of them while she was away.

[22] She said that Mr Rodriguez, when he lived with them, used to go to his house at Richlands almost every morning to feed the farm animals. She also said that he stayed back at his own house on some nights as he had drunk too much or was tired.

[23] Her children gave similar evidence by reference to their mother's affidavit. Kymberly O'Neill said that Mr Rodriguez asked Mrs O'Neill in May 2004 to marry him in her presence. She said her mother agreed to that shyly. She said he wanted them to move in with him to his house in Richlands but that she was keen to buy a house of her own which led her to sign with her mother the "rent to purchase" agreement of the house at 15 Josey Street, Redbank Plains.

[24] Kymberly O'Neill said that, in October 2004, Mrs O'Neill had to go to the Philippines and that they were living with Mr Rodriguez who took very good care of them. She said that he also canvassed with them the possibility of going to live in the Philippines.

[25] Griffith O'Neill's evidence was also similar and relied upon his reading of his mother's affidavit. He also said that Mr Rodriguez looked after them in October 2004 when Mrs O'Neill went to the Philippines.

[26] Those were the main witnesses relied on by Mrs O'Neill although she also called a witness, Violeta Barena who described herself as a close friend of Mrs O'Neill who used to see her regularly until she moved to the house at Josey Street, Redbank Plains. The first time that she saw Mr Rodriguez, however, was at a barbeque at Josey Street in October 2005.

[27] She said that after that first meeting she rarely saw the applicant without Mr Rodriguez. The earliest memory she had of the applicant and Mr Rodriguez was from a phone conversation in May 2003 but her evidence described no observation of him by her directly until late 2005.

[28] There was also evidence tendered of telephone records which revealed that Mr Rodriguez only began calling the number at the Penguin Street house, previously inhabited by Mrs O'Neill and her children, from about 30 January 2005. The balance of those records revealed that from then on Mr Rodriguez would call Mrs O'Neill's number very regularly, up to sixteen times a day. During that period it seems likely that he was at his own house on Christmas Day 2005 as there were three calls made from that property then.

[29] There were no calls made, however, from Mr Rodriguez's property during the seven months before 30 January 2005 to the house at Penguin Street where Mrs O'Neill was then living.

[30] The objective evidence, therefore, and that from the disinterested witnesses, both suggest that there was no serious relationship between the deceased and Mrs O'Neill until some time in 2005. Accepting Mr Cuzzolaro's evidence, as I do, I do not believe that Mr Rodriguez was helping to care for the children while Mrs O'Neill was in the Philippines in late 2004.

[31] There are also serious issues related to the credit of Mrs O'Neill and, to a lesser extent, her children that cast doubt on her case.

[32] One of the most significant is that she applied for probate of Mr Rodriguez's estate knowing that there was a will in existence but representing to the court that no will existed and that she was entitled to letters of administration. Letters of administration were granted to her but subsequently revoked on an application by Mr Alonso who obtained probate of the will that was in existence. She sought to explain that by saying that she and her then solicitor had asked for a copy of the will and not been provided with one but she did know that the solicitors for the estate had said that a will existed and refused to give her a copy. When the grant of letters of administration to her was revoked she was ordered to pay the executor's costs.

[33] Mrs O'Neill appeared for herself in the proceedings although she had retained a significant number of firms of solicitors in the past. She was not an impressive witness and had difficulties coming to grips with how to present her case as an advocate. Her evidence was criticised by Mr Brennan for the respondent in numerous respects. For example, he pointed to inconsistencies in her evidence and changes in it during cross-examination related to such issues as the ownership by her of a house in the Philippines, her motive for moving into the deceased's estate's property at Richlands in the middle of 2007, the state of her health around the time she agreed to deliver up possession of that property to Mr Alonso as executor and what he described as the swearing of a false affidavit by her in the administration proceedings relating to her knowledge of the existence of the will. He also criticised her presentation of duplicate receipts for items of costs claimed by her previously.

[34] Mr Brennan also criticised Kymberly O'Neill's evidence as argumentative, evasive and non-responsive. One curious episode in her evidence related to whether she and her brother attended Mr Cuzzolaro's house at a particular time. There was photographic evidence suggesting she and her brother were there at least at some stage but she refused to admit such a visit in spite of that evidence.

[35] Griffith O'Neill could not remember a visit to the Cuzzolaro house either and there was real concern in my mind about his evidence because of the suggestion that he was being prompted in his answers by his mother from the bar table.

[36] The issue about the visit to Mr Cuzzolaro was significant because of his evidence that he was looking after the children in October 2004 when Mrs O'Neill spent some time in the Philippines. Her evidence and that of her children was that Mr Rodriguez was then helping to look after the children. Mr Cuzzolaro's evidence that Mr Rodriguez was not present at Mrs O'Neill's house at that stage is important as is his evidence that Mr Rodriguez did not, at that time, have a car which he could have used to assist to take the children to work. His evidence impressed me as being both disinterested and reliable.

[37] The evidence from Mrs O'Neill and her children about this issue was also clouded by their apparent confusion about and failure to recall a previous visit by Mrs O'Neill to the Philippines in August and September 2003 which she only finally conceded had occurred when she was confronted with a photocopy of her passport showing the relevant immigration stamps for that visit.

[38] Griffith O'Neill could not recall the year in which his father died while Mrs O'Neill and her daughter recalled that event occurring in 2003 when it actually happened in July 2004. Kymberly O'Neill could not recall whether Mr Rodriguez had a car with him when she said that he arrived at the Penguin Street house with suitcases in December 2003.

[39] There were also inconsistencies in each family member's evidence about the frequency with which Mr Rodriguez visited his own property at Richlands and how he had travelled there. Mrs O'Neill said that he visited the property almost every morning and drove his car there. Kymberly O'Neill said that he visited the property three or four times a week and that she drove him there and picked him up while Griffith O'Neill said that he visited the property three or four times a week but caught public transport. Mrs O'Neill's evidence that he drove her to the Richlands' property in January 2004 was also inconsistent with her later admission that he did not have a car until 2005.

[40] Mr Brennan also relied on the telephone records revealing that calls were made from Mr Rodriguez's property at Richlands in 2005 regularly to Mrs O'Neill's telephone numbers.

[41] Other inconsistencies were relied on, as was the manner in which witnesses gave their answers, but some of the more significant evidence on the issue when the relationship began came from correspondence from Mrs O'Neill's former solicitors. In one letter of 14 August 2006, shortly after the death of Mr Rodriguez, an assertion is made that Mrs O'Neill was Mr Rodriguez's de facto spouse where it was said that he would spend whole nights regularly with her and that he kept clothes at her house but no mention is made of the assertion that he was living on a fulltime basis with her. It was also alleged that they were engaged for about 18 months which is inconsistent with the allegation they were engaged in May 2004 given in evidence at this trial. The latter period begins approximately 26 months before Mr Rodriguez's death rather than 18 months.

[42] In a later letter of 3 November 2006 a second firm of solicitors refers to Mrs O'Neill as the deceased's fiancé but they make no allegation that she was a de facto partner nor do they refer to any potential claim pursuant to Part IV of the Succession Act 1981 (Qld).

[43] Most tellingly, however, a third firm of solicitors, on 29 November 2006 asserted:

"It appears from our instructions that our client was in a de-facto marital relationship with the deceased for slightly less than two years up to the date of death. Therefore, she does not appear to have any entitlement to claim further provision from the estate."

[44] That was a "without prejudice" letter advancing an alternative claim to an interest in the estate on the theory that Mrs O'Neill was the beneficiary of a constructive trust. Mr Brennan argued that it was, nonetheless, admissible because there was no dispute between the parties as to whether Mrs O'Neill had a right to claim further provision from the estate. He relied on the decision of Kelly SPJ in the Full Court in J A McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd.[2] I would not be confident that one could apply his Honour's reasoning in that judgment to this situation as the solicitors' statement was qualified by the words "it appears" and there remained a dispute between the parties as to whether Mrs O'Neill was entitled to part of Mr Rodriguez's estate's property as a beneficiary pursuant to a constructive trust.

[45] Mr Brennan also submitted, however, that Mrs O'Neill had waived privilege in the letter by her assertion in an affidavit sworn 1 July 2008 that she did not give those instructions to that firm of solicitors. He also relied on the principle that the privilege must not be abused for the purpose of misleading the Court discussed by Ryan J in J A McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd.[3] The latter two reasons are sufficient to establish the admissibility of the document. She could have objected to the admissibility of the document rather than putting in issue the nature of the instructions she gave her former solicitors so I am satisfied that she waived the privilege by doing that. I am also satisfied that Mrs O'Neill has been attempting to mislead the Court as to the length of her relationship with Mr Rodriguez and to withhold the admissibility of the letter would be an abuse of the privilege in the circumstances.

[46] All of these considerations combine to persuade me that Mrs O'Neill was not telling the truth when she had claimed to have been in a de facto relationship with Mr Rodriguez from October 2003. Some of the strongest pieces of evidence are Mr Cuzzolaro's observations that Mr Rodriguez was not present at the O'Neill house in October 2004, the letter from Mrs O'Neill's then solicitors of 29 November 2006 conceding the relationship had not existed for two years coupled with the records of the telephone calls. Mrs Barena's evidence is also significant in that she did not see Mr Rodriguez with Mrs O'Neill before October 2005.

[47] There were other significant items of evidence which complete the picture. Under cross-examination, Mrs O'Neill said that she met Mr Rodriguez after her husband's funeral which occurred on 27 July 2004. Mr Cuzzolaro said that Mrs O'Neill referred to Mr Rodriguez as her "new boyfriend" only on her return from the Philippines in December 2004. The Christmas card which Mrs O'Neill sent to the Cuzzolaro family in 2004 was sent only on her and her children's behalf even though Mr Rodriguez knew the Cuzzolaros as well. At the time Mrs O'Neill said she became engaged to Mr Rodriguez in May 2004, she was still married to her husband, even if estranged from him.

[48] In the circumstances, therefore, I am not satisfied on the balance of probabilities that Mrs O'Neill and the deceased were in a de facto relationship for two years or more before he died. I say that on the basis that I must be careful to make sure that I am "not misled by over enthusiastic evidence from the only party alive who can still give evidence as to the exact relationship."[4]

[49] It is appropriate, if not strictly necessary, to consider whether the relationship between Mrs O'Neill and Mr Rodriguez was a de facto relationship for any period. In the circumstances it is unnecessary for me to deal with this issue at length. There are many indications that no de facto relationship existed. The relevant matters contained in s 32DA of the Acts Interpretation Act 1954 (Qld) do not favour such a finding. Each of the parties collected the single person's pension, maintained separate households, did not share any common real property or purchase any common personal property. They did not have any joint bank accounts. Nor did they pool their finances. They paid their own bills and did not go on holidays together.

[50] The only socialising with friends of which there was evidence was in respect of two occasions with Mrs Barena and a Mr Barron. Mrs Barena appears to be the only friend who saw them together. They spent nights apart to an extent which remains controversial but even on her children's evidence was on average about two or three nights per week. They did not share any utilities in common, for example, a common telephone number. Mrs O'Neill could not name one of Mr Rodriguez's friends and, apart from Mr Cuzzolaro, Mr Rodriguez's friends who gave evidence had not heard of Mrs O'Neill before the proceedings. There was, also, no indication that their financial arrangements had features of "trust, generosity and intermingling."[5]

[51] There was confusing evidence about the nature of any sexual relationship between the two. There was evidence of an admission by Mr Rodriguez to Mr Cuzzolaro that he was impotent and unclear evidence from Mrs O'Neill about their sexual relationship, ranging from sexual intercourse "every day" to evidence from her to this effect:[6]

"I know that he was - he can't do it but he force me, he force himself. He can do anything. Every - every day of the time [sic].

Are you saying that he could get an erection? - Sometimes. No, I don't know if he get that but we are having something in bed all the time."

[52] There was also the evidence that Mr Rodriguez lived at his property at Richlands when his friends, Mr Alonso and Mr Cuzzolaro, called on him. Mr Cuzzolaro gave him assistance to shop for his groceries from 2001 until about March 2005 and there was the evidence that he looked dishevelled and unkempt especially near the end of his life when he appeared to be living alone at his property at Richlands. Other witnesses, some of whom gave evidence which was not the subject of cross-examination, also said they saw him alone during the years before his death.

[53] There were other matters relied on by Mr Brennan as inconsistent with any conclusion that there was a de facto relationship between them including the visit to the Philippines for an extended period of time in late 2004 without Mr Rodriguez and her failure to call other witnesses who could corroborate her evidence and that of her children, apart from Mrs Barena, whose evidence did not assist her significantly.

[54] Accordingly, if it were necessary, I would conclude that Mrs O'Neill has also not established that a de facto relationship existed between her and Mr Rodriguez although I concede that there was some form of relationship between them for an indefinite period of less than two years.

Adequate provision for Mrs O'Neill's proper maintenance

[55] In the circumstances it is not necessary for me to consider the issue whether there has been adequate provision made for Mrs O'Neill's maintenance. Had it been necessary the fact that the will makes no provision for her would have made the answer clear if she had truly been in a de facto relationship with Mr Rodriguez. Some allowance should have been made for her.

[56] Taking into account a number of matters such as Mrs O'Neill's own assets and income, which were not properly disclosed by her, the respondent argued that a relatively modest provision would have been the most that should have been required, not exceeding $40,000. In that context and in the context that Mrs O'Neill, relying on her falsely granted letters of administration, had exclusive possession of the Richlands property from about August 2007 until 16 August 2010, having moved there to save on rent, and having left that property in a terrible condition which had to be cleaned up by the estate, Mr Brennan argued that adequate provision had been made because of her rent free accommodation there. He also submitted that her disentitling conduct in frustrating the proper administration of the estate should have the effect that, the estate had discharged any entitlement to which she may otherwise have been entitled and her conduct should lead to the result in any event that she should obtain nothing from the estate.

[57] Because of my principal conclusion, however, it is unnecessary for me to resolve those latter issues. There was much to be said in favour of the respondent's submission on those points and if it were necessary it is likely I would have taken that approach.

[58] Since Mrs O'Neill has not established to my satisfaction, however, that she was in a de facto relationship with Mr Rodriguez for a period of two years or more her application must be dismissed.

[1] See s 41 of the Succession Act 1981 (Qld) and the definition of "spouse" in s 5AA of that Act and s 32DA of the Acts Interpretation Act 1954 (Qld).

[2] [1992] 2 Qd R 121, 128.

[3] [1992] 2 Qd R 121, 134-135.

[4] Weston v Public Trustee (1986) 4 NSWLR 407, 409.

[5] See, for example, S v B [2004] QCA 449 at [27].