Petersen v Gregory; Estate Glen Alfred Petersen

Supreme Court of NSW|2007-01-29|Before: Barrett J, Mr P

Reported Decision : (2008) NSW Conv R 56-207 (2008) ANZ Conv R 8-07

CITATION : Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8

JURISDICTION : Equity Division Probate List

CATCHWORDS : SUCCESSION - intestate estate - competing claims for letters of administration - deceased unmarried and without issue - claim by father - claim by alleged de facto wife - whether claim to have been de facto wife established - WORDS AND PHRASES - "live together as a couple"

LEGISLATION CITED : Property (Relationships) Act 1984, s.4 Wills, Probate and Administration Act 1898, ss.32G, 61B

Delany v Burgess [2006] NSWSC 1420 CASES CITED : Hooper v Winten [2002] NSWSC 1071 Ye v Fung [2006] NSWSC 243

June Dolores Petersen - First Plaintiff PARTIES : George Petersen - Second Plaintiff Leanne Catherine Gregory - Defendant

COUNSEL : Mr M.R. Lawson - Plaintiffs Mr P.R. Stockley - Defendant

SOLICITORS : Atkinson Vinden Heazlewoods - Plaintiffs Thomson Bentley & Partners - Defendant

21 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

114065/05 JUNE DOLORES PETERSEN AND ANOR v LEANNE CATHERINE GREGORY - THE ESTATE OF GLEN ALFRED PETERSEN JUDGMENT 1 Glen Alfred Petersen died intestate on 22 February 2005 at the age of 49 years. He never married and had no children. There are competing claims in these proceedings for a grant of letters of administration of his intestate estate. 2 By statement of claim filed on 6 September 2005, the deceased's father and mother claimed an order granting them letters of administration. The mother later died and that claim is continued by the deceased's father (whom I shall call "Mr Petersen"). By statement of cross-claim filed on 16 November 2005, a corresponding claim is made by Leanne Catherine Gregory ("Ms Gregory"). She claims to have been the deceased's de facto spouse at the time of his death. 3 While the respective claims are, in form, claims to administer the estate, the circumstances are such that each is, in substance, a claim to be recognised as entitled to the whole estate. Each claim is advanced on the basis that "the grant ought to follow the interest". The interest upon which Mr Petersen relies is that of the two surviving parents under s.61B(5)(a) of the Wills, Probate and Administration Act 1898. The parents take only if the intestate leaves no spouse and no issue. The interest asserted by Ms Gregory is the surviving spouse's right to the whole estate under s.61B(2) in a case where the deceased leaves a spouse but no issue. 4 Because it is accepted that Mr Petersen is the surviving parent, the only question the proceedings raise is whether Ms Gregory is to be regarded as the "spouse" of the deceased for the purposes of the rules as to intestate succession in s.61B. That section appears in Part 2 of the Act. The question as to "spouse" status accordingly falls to be determined by reference to s.32G of the Act: "32G Interpretation

(1) In this Part: de facto relationship has the same meaning as in the Property (Relationships) Act 1984 . de facto spouse , in relation to a person dying wholly or partly intestate, means someone who: (a) was the sole partner in a de facto relationship with the person, and (b) was not a partner in any other de facto relationship.

(2) Except where the contrary intention appears, a reference in this Part to the spouse of an intestate includes a reference to a person who, at the time of death of the intestate, was the de facto spouse of the intestate." 5 Ms Gregory's claim to have been the spouse of the deceased at the time of his death will be successful if, at that time (a) she was the sole partner in a relationship with the deceased that was a "de facto relationship" as defined by the Property (Relationships) Act 1984; and (b) she was not a partner in any other "de facto relationship" as so defined. 6 Since there is no suggestion that either the deceased or Ms Gregory was, at the deceased's death, in a de facto relationship with any third person, the only question for decision is whether there then existed between the deceased and Ms Gregory a "de facto relationship" within the meaning of s.4 of the Property (Relationships) Act. That s.4 is in the following terms: "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.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 7 Certain uncontroversial matters may be dealt with immediately. First, the deceased and Ms Gregory were neither "married to one another" nor "related by family". Second, they had, from about 1989, lived in the same house, first at Georges Hall and later, from some time in 1994, at 83 Alan Street, Yagoona. The deceased died in hospital and had been there for some weeks before his death. His personal belongings and effects were at the Yagoona house when he died. His home was at the Yagoona property at the time of his death. 8 The question for determination, therefore, goes to the words "live together as a couple" in the s.4(1) definition, as elucidated by the specific matters referred to in s.4(2). 9 It is not disputed that there was at one time a relationship between the deceased and Ms Gregory that was within the description in s.4 of the Property (Relationships) Act. She maintains that that relationship continued up to the deceased's death. Mr Petersen contends that it came to an end in about 1995 or 1996 and that, although the deceased and Ms Gregory both continued to live in the Yagoona house (and were the only persons living there), they no longer lived "together as a couple". The house was held on lease. The deceased was at all times the sole lessee and the telephone, electricity and gas accounts were in his name alone. The deceased and Ms Gregory shared household expenses and the rent. It is the contention of Mr Petersen that, from 1995 or 1996, Ms Gregory was no more than a boarder or flatmate of the deceased. 10 It is therefore necessary to have regard to the evidence that throws light on the nature and quality of the relationship that existed at the time of death. Clearly enough, there was some relationship. When two people live in the same house and share rent and expenses, there is obviously a relationship between them. The question to be answered in this case is whether, at the deceased's death, the relationship was such that the two persons lived "together as a couple" - a concept recently discussed by Gzell J in Ye v Fung [2006] NSWSC 243. I quote paragraphs [64] and [65] of the judgment: "[64] A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: 'A man and woman united by love or marriage; a wedded or engaged pair'.

[65] In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships ." 11 It is nevertheless pertinent to remember that, as Windeyer J pointed out in Hooper v Winten [2002] NSWSC 1071, de facto relationships, like marriages, will not be perfect all the time. While the romantic characteristic to which Gzell J referred will typically exist at inception, a diminution in its intensity in a shared residential setting will not of itself mark the end of living "together as a couple". The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living "together as a couple". This central concept has recently been explored by McLaughlin AsJ in Delany v Burgess [2006] NSWSC 1420. 12 I consider first the evidence given by Ms Gregory herself. Ms Gregory is aged 41. She has never married and has no children. She works full time as a bar attendant at the Village Hotel, Villawood. She was the tenant of the property at Georges Hall first occupied by herself and the deceased. It is her evidence that a sexual relationship existed between them at the time when he moved into those premises in 1989. It is her evidence that she did all the cooking in the homes they occupied as the deceased was not a good cook. She also says that she did all the cleaning and internal maintenance with some assistance from the deceased. She washed all the deceased's work clothes and the household linen, as well as doing the ironing. She says, however, that she stopped doing the deceased's personal laundry and ironing in about 1995. She attributes this to the washing machine having broken down. The deceased's mother thereafter collected his clothes and washed them for him. 13 Ms Gregory confirms that she and the deceased did not have a joint bank account and that they both contributed to the household expenses, including rent. While there was no strict accounting between them, arrangements were such that each paid approximately half, although the deceased himself paid the expenses of his motor vehicle. 14 Ms Gregory testified that the deceased became too ill to work in November 2004 and left his employment. At that point, she says, the deceased's mother "took control of his bank account" and paid a telephone account and made part payment of the rent. Ms Gregory paid the balance of the rent, electricity accounts, general living expenses and the maintenance for the deceased's fish tanks. 15 It is the evidence of Ms Gregory that, after the deceased became ill, she went with him to medical appointments. She does not have a driver's licence. The deceased drove to the appointments until he became too ill to do so (about November 2004). After that, his parents helped him to get to the appointments. 16 Ms Gregory explained that the house at Alan Street, Yagoona had three bedrooms and that, at the beginning, she and the deceased shared a bedroom. However, in about 1996, she began sleeping on most nights in the second bedroom. At the time, she was working shift work and was finding it increasingly difficult to sleep without being disturbed by the deceased getting out of bed and going to bed. She was also disturbed by his snoring, describing him as "a prolific snorer". She says that their sexual relationship continued even after she moved to the second bedroom and that the new sleeping arrangements were agreed between them. 17 Ms Gregory's affidavit refers to a number of social events that she and the deceased attended together up to 1996. I mention that year because she refers to weekly visits to a Mexican restaurant at Bankstown which closed down in that year. However, she says that the two of them regularly went to a Chinese restaurant in Georges Hall at least once a week after that. In relation to holidays, she mentions a joint holiday for a week at Perisher in 1994 and a holiday for five days in July 2004 at Manning Point. The deceased was fond of skiing but Ms Gregory was not. The deceased sometimes went on skiing holidays with friends. Ms Gregory did not accompany him. 18 Ms Gregory never had a close relationship with the deceased's parents. She considered their attitude to her "cool". She says that, when she took this up with the deceased, he said words to the effect, "My mother does not like motor bikes, rock and roll or wild women. She is just like that." 19 It is Ms Gregory's evidence that she became pregnant to the deceased on two occasions, one in 1992 and the other in 1993. On the first occasion, the pregnancy was terminated after discussion between them. On the second occasion Ms Gregory suffered a miscarriage. She says that the issue of starting a family was raised by her with the deceased in about 1997 and that he said, "I'm too old to have kids now". 20 Ms Gregory refers in her affidavit to separation for a period of about three weeks in 1994. Annexed to her affidavit is a letter said by her to have been received from the deceased at that time. It is a letter in affectionate terms expressing a wish for reconciliation. Ms Gregory refers to "two or three other short periods when our relationship was not as strong as it had been". She refers in particular to an occasion in "approximately 1991" when she felt that the deceased had become distant from her and she "had a short affair with Mick Cairncross". She says that the affair lasted for three weeks and that she was then reconciled with the deceased. However, subpoenaed medical records show that Ms Gregory spoke to her doctor in January 1995 of "having an affair". 21 Ms Gregory also gives evidence of discussions she and the deceased had about marriage. She says that the matter was discussed on a number of occasions during the first three or four years they were together. She then refers to an occasion after the holiday at Manning Point in July 2004 when the deceased asked her to marry him, to which she replied, "Honey let's get you better first and then we will talk about it". According to Ms Gregory, the deceased again proposed marriage about two weeks before his death and she replied, "If I marry you now I would look like a gold digger". 22 During the deceased's final hospitalisation, he was first at Bankstown Hospital, later at Liverpool Hospital and eventually at Nepean Hospital at Penrith. Ms Gregory says that she visited him on three or four occasions per week when he was at Bankstown Hospital but could only visit Liverpool Hospital on one or two occasions per month. When he was in Penrith Hospital, she visited him on four occasions. She was, at the time, working full time, had no driver's licence and was dependent on public transport or assistance from her father and friends to travel to the various hospitals. 23 The evidence of Ms Gregory to which I have so far referred appears mainly from her affidavit and cross-examination. Additional evidence in chief was, by leave, given by her orally. She referred to an incident in 2000 or 2001 when a regular patron of the hotel at which she worked paid unwanted attentions to her and made physical advances of a sexual kind. A few days after the incident, she informed both her employer and the deceased. She became a patient of Mr Whyte, a psychologist, as a result of this incident. The fees were covered by workers compensation. More will be said of Mr Whyte presently. The deceased's reaction to what Ms Gregory told him was to go to the hotel with a friend and assault (or have the friend assault) the person who had harassed Ms Gregory. 24 Ms Gregory's father gave affidavit evidence. He and his late wife (who died in 1995) were visited by Ms Gregory and the deceased at their home from 1989 to 1995. After 1995, the father saw more of Ms Gregory and the deceased and visited them regularly at the Yagoona property. He visited about once every two weeks. He observed the deceased's personal belongings at the premises. On at least three or four occasions between then and 1996, he asked Ms Gregory on a number of occasions when she and the deceased were getting married. Both Mr Gregory and the deceased laughed off these questions. 25 Affidavit evidence was also given in Ms Gregory's case by Mr MacFarlane who had been a friend of the deceased since 1983. He visited the deceased at home and engaged in social activities with him. The deceased introduced Mr MacFarlane to Ms Gregory as "my girlfriend" in about 1988 or 1989. Ms Gregory was thereafter included in some of the social activities. Mr MacFarlane visited the deceased regularly when he was in hospital leading up to his death. According to Mr MacFarlane, the deceased said he was expecting a visit from a solicitor so that he could make a will and that he wished to make provision for Ms Gregory. He mentioned specific things he wished her to have after his death; also that he did not wish his brother to have anything. Mr MacFarlane also said that the deceased had said that he had asked Ms Gregory to marry him but that she thought he was joking and said she did not want to worry about that until he got over his illness. 26 Mr O'Reilly, another friend of the deceased, also gave evidence in Mr Gregory's case. He was introduced to Ms Gregory as the deceased's "girlfriend" in 1988 or 1989. The deceased shared a house with Mr O'Reilly at the time. He left that house to live with Ms Gregory at Georges Hall. Mr O'Reilly visited them there and at Yagoona. During his last illness, the deceased spoke to Mr O'Reilly of a desire that Ms Gregory should be looked after financially out of his estate. 27 Ms Varley is a friend of Ms Gregory's. She was introduced to the deceased in about 1986 as Ms Gregory's "boyfriend". Ms Varley and her husband shared social activities with Ms Gregory and the deceased between 1989 and late 1994. Ms Varley kept an eye on their home when they were away and fed the pets. She did so when the deceased and Mr Gregory went on a holiday to Manning Point in about 2004. A day or two after their return, she saw the deceased at the front of the house. He thanked her for looking after the animals and said that he and Ms Gregory were "thinking of marriage". Ms Varley gave evidence of Ms Gregory having spoken of giving up work to look after the deceased after he came out of hospital. 28 Evidence was given in Mr Petersen's case by him, his wife (by way of affidavit sworn before her death), the deceased's brother Wayne, Wayne's wife Sonia, Mr Todd an estate agent, Mr Whyte the psychologist already mentioned, Ms Hogan a friend of the deceased's and Ms Woods another friend. 29 Mr Petersen gave evidence of regular visits to the Yagoona property with his wife while the deceased was alive. Mrs Petersen collected and returned the deceased's washing and sometimes did housework. Mr Petersen mowed the lawn. He rarely saw Ms Gregory there. The deceased explained that she worked at night and usually slept late. Mr Petersen observed that the door to her room was always closed; and that she occupied a separate bedroom. Mr Petersen was aware of a sexual relationship between the deceased and Ms Gregory while they lived at Georges Hall. After the move to Yagoona, Mr Petersen deposed, "everything he ever said to me about his life from that time on indicated that he was living the life of a single man". Mr Petersen further deposed that, after the deceased returned from a skiing trip to Canada in 2000, he spoke in very affectionate terms of Ms Hogan. Mr Petersen saw Ms Gregory visit the deceased in hospital on two occasions. He says that there was no display of affection between them and that she did not kiss him. Mr Petersen said in cross-examination that, in a conversation about eight years ago, the deceased had told him that he was not interested in sex with Ms Gregory. 30 The deceased's younger brother Wayne says that he met Ms Gregory only once, when she went to the home of Wayne and his wife Sonia for Christmas dinner 2004 because "she had nowhere else to go". She was invited at the deceased's instigation. Wayne further says that, when the deceased spoke about personal relationships he never spoke of Ms Gregory. Although Wayne says that he had a close relationship with the deceased, his evidence shows that it was not close. The deceased and Ms Gregory were in a de facto relationship for some years from 1989 and shared a house for some fifteen years. A brother with a close relationship would have met her earlier than the Christmas before the deceased's death. 31 Wayne's wife Sonia also claims to have had a close relationship with the deceased but again I am not satisfied that the relationship was close. 32 Both Wayne and Sonia gave evidence of conversations with the deceased during his last hospitalisation. Their evidence is that they visited him regularly and were attentive to his needs and his plight as he approached death. Their evidence confirms that Ms Gregory visited the deceased in hospital on only a few occasions and that there was no display of affection or kissing between them. They also referred to the deceased speaking in affectionate terms of Ms Hogan. 33 It is clear that Mr Petersen, his wife, Wayne and Sonia were regular and constant visitors while the deceased was in hospital and that they were very attentive to him. It is also clear that Ms Gregory was an infrequent visitor. 34 Mr Todd is a principal of the firm of estate agents through which the Yagoona property was let. He inspected the property periodically from 1995. It was clear to him that the deceased and Ms Gregory had separate bedrooms. He saw male clothing and belongings in one room and female clothing and belongings in another. 35 Of particular significance is the evidence of Ms Hogan. She and the deceased met during a two week skiing trip to Canada in 2000. Ms Hogan is single and has never been married. She and the deceased were part of a group of about 20 people on the ski trip. The deceased and Ms Hogan became friendly at the start of the two week period. After the trip, the deceased and Ms Hogan remained in contact and met for drinks or meals about every three months, as well as speaking more frequently by phone. They went away on two skiing weekend trips. Ms Woods joined some of these activities in the early years. The meetings continued until the deceased's final hospitalisation. 36 The deceased sought from Ms Hogan more than platonic friendship but she was not interested in a romantic relationship. I quote from her oral evidence in chief: "Q. After you returned from Canada, what, if anything, did Mr Glen Petersen say to you about his marital status and/or any romantic relationships in which he was involved? A. At that current time?

Q. At any time after you returned from Canada? A. After 2000 his marital relationship status was always 100 per cent single.

Q. What did he say to you? A. To me, he kept begging me to go out with him, to be his girlfriend.

Q. Doing the best you can, can you tell his Honour what he told you, the words he used? Doing the best you can, can you recall what he said to you? A. The day we were leaving Canada, we were packing the bags to load on to the bus. Glen had actually approached me and asked me when we returned to Sydney if I would actually date him and go out with him. I replied to him I really liked him as a person, but I didn't want an actual relationship, that I would be pleased to be his mate or his friend, and on numerous occasions after that we had kept in contact and been on dinner dates, mainly in the company of Helen Woods, and on numerous occasions after that Glen had also asked me out a lot.

Q. On the subsequent occasions, and by subsequent I mean after you returned from Canada, so the five years between your return from Canada in February 2000 and February 2005, what, if anything, in that period of time did Glen tell you about his marital status and/or whether he was involved in any romantic relationships? Can you tell his Honour what Glen said and what you said, doing the best you can? A. He never, at any stage, said there was a relationship with anybody. His marital status always remained 100 per cent single. If I contacted Glen at any time to ask him out on a social function or away for the weekend, he never referred to anybody or asked anybody for permission to attend or if it was okay with them. He always answered my questions straight away, without hesitation." 37 Mr Hogan also gave evidence about what the deceased had told her about his relationship with Ms Gregory: "Q. Following that ski tour, what, if anything, did Mr Petersen say to you about Leanne Gregory? A. The things that Glen did say were not very polite.

Q. If would you tell his Honour what he said and when he said those things? A. They were repeated numerous times in the five years that I knew Glen. The language I wouldn't repeat. Glen had a very colourful--

HIS HONOUR: Q. You should repeat it. Don't feel shy about repeating it. A. Things along the line that she was a F-ing bitch, that she was a fat lazy cow, she didn't pull her weight around the house at any time when they shared the premises; that she had done the dirty on him, slept around with a friend of his. There was very few times he actually said anything that was all right or sort of positive.

LAWSON: Q. When did he say these things about Leanne Gregory? A. He was actually saying them on the ski trip, because from what I could gather, they had had a relationship prior to 2000 and they had split in very nasty terms." 38 Ms Wood gave evidence of having been on the trip to Canada in 2000 and having met the deceased and Ms Hogan. She kept in touch with Ms Hogan afterwards. For the first few years after the Canada trip, she, Ms Hogan and the deceased went out together on six or seven occasions. On one such occasion, in 2001 or 2002, the deceased was heard by Ms Wood to speak of the woman he shared his flat with, saying words to the effect, "Even if she made a move now to have a relationship with me, I would not touch her; I would not go near her with a barge pole". 39 The deceased also spoke in negative terms about Ms Gregory to Mr Ehmann, another patient at the hospital during his final illness. I quote from Mr Ehmann's affidavit: "13. I observed Glen speak on the phone on many occasions with a person who Glen later identified as being Leanne Gregory. On those occasions I observed Glen to speak to that person in an abrupt manner. A common statement which I overheard him make to her on the phone was, 'I am not going to lend you any more money'. I also recall on several occasions Glen discussing with that person the payment of bills and Glen saying words to the effect, 'I have told you that this has already been paid'. … 18. During the time that I was in the same ward as Glen, we talked on a number of occasions about his personal situation. He talked a great deal about a person by the name of Leanne Hogan. Next to his hospital bed was a photograph of him and Leanne Hogan from their ski trip to Canada. 19. In relation to Leanne Hogan at various times Glen said the following things about her: 1. 'I got very friendly with this girl when we were in Canada. I approached her to form a relationship be she knocked me back.' 2. 'When I get out of hospital I will be doing some hard work to get with her because she is the one for me.'" 40 It remains to consider the evidence of the psychologist, Mr Whyte. He treated, coincidentally, both the deceased and Ms Gregory. I have already referred to Ms Gregory's attendances upon Mr Whyte following the unwelcome incident with the patron of the hotel. Mr Whyte treated the deceased for pain relief and counselling. 41 Mr Whyte saw the deceased in 2003 and 2004 over a period of some twelve months. It was part of Mr Whyte's function to understand the deceased's personal circumstances. Mr Whyte's evidence is that Ms Gregory was not identified by the deceased as a significant person or as a person who would form part of the deceased's support network. Mr Whyte also said: "Glen consistently represented himself to me as a single person. He indicated on a number of occasions that he was living in a platonic arrangement with Leanne Gregory. His specifically stated words to the effect, 'I do not want to have an intimate relationship with her'." 42 The deceased did not refer to Ms Gregory as a source of emotional support in his conversations with Mr Whyte. Ms Gregory did not feature in the deceased's descriptions of daily routine or holiday plans. The deceased said of Ms Gregory: "There is nothing in it, we are just friends. We had a relationship many years ago." 43 On another occasion, the deceased said to Mr Whyte: "Leanne is in a relationship with a bloke."

The deceased did not express any jealousy about this. 44 At the time he was treating the deceased, Mr Whyte initially did not realise that the Leanne Gregory to whom the deceased referred was a person he had previously treated. He realised this on an occasion when Ms Gregory came to his rooms with the deceased. Mr Whyte saw Ms Gregory in 2001 and 2002 over a period of about a year. At that time, Mr Gregory told Mr Whyte that she was "in a relationship". She also mentioned a flatmate. It was made clear to Mr Whyte that the "relationship" was with someone other than the flatmate. 45 The other evidence I should mention is documentary. First there are certain cards and a letter sent by the deceased to Ms Gregory. These are in affectionate terms but are undated. The letter is in terms suggesting that the parties had separated - as they did for a while during the acknowledged de facto relationship. The absence of dates makes it quite possible that the cards and the letter were all sent during that period. That is consistent with Ms Gregory's evidence mentioned at paragraph [20] above. The letter and cards throw no light on the nature of the relationship at the time of the deceased's death. 46 The next item of documentary evidence is a photograph of the deceased and Ms Gregory said by her to have been taken in 2004 at a barbecue at the home of a friend of the deceased. It shows the two of them standing together with their arms loosely around one another's waists. 47 The other documentary evidence is medical and hospital records over a period of several years up to the date of death in which the deceased recorded his mother as his next of kin or person to be notified. In Mr Whyte's file on the deceased he is described as "single". 48 My task is to draw conclusions about the nature of the relationship between the deceased and Ms Gregory at the time of the deceased's death on 22 February 2005. 49 I begin with the evidence about proposals of marriage in 2004, first in July 2004 and again two weeks before the deceased's death. Ms Gregory says that, on each occasion, the deceased asked her to marry him and she declined. Mr MacFarlane's evidence was that the deceased told him during his final hospitalisation that he had asked Ms Gregory to marry him - but according to Mr MacFarlane, the deceased said that Ms Gregory had thought he was joking. Ms Varley said that the deceased told her after returning from Manning Point that he and Ms Gregory were thinking of marriage. Against this stands evidence that, in his conversations with Ms Hogan, Ms Woods and Mr Whyte, the deceased made it clear that he was not interested romantically in Ms Gregory. Particularly telling is Mr Ehmann's evidence which relates to the period immediately before death. He refers to the deceased as having spoken in a very disparaging way about Ms Gregory and of a desire to pursue a romantic relationship with Ms Hogan. The comments reported by Mr Ehmann are entirely inconsistent with any intention on the deceased's part of marrying Ms Gregory. The comments reported by Ms Hogan and related to a longer period are of the same kind. 50 It was put to Ms Gregory that her stated reasons for declining proposals of marriage were spurious and that there had been no proposals. In particular, her supposed decision not to marry a dying man because she might "look like a gold digger" was said to be irrational. Why would some vague fear of being seen as "a gold digger" stand in the way of granting a wish that would make a dying man die happy? There is considerable force in this. 51 Taken as a whole, the evidence on the subject of marriage proposals does not leave me with an actual persuasion that the deceased made the two proposals referred to in the evidence of Ms Gregory. There had been a period of more than four years in which the deceased actively courted Ms Hogan and made derogatory comments about Ms Gregory to her and Ms Woods. He was, on Mr Ehmann's evidence, of the same frame of mind in the weeks before his death. If, as Ms Gregory testified, there had been proposals, a person having the affection and regard for the deceased that she professed to have would have accepted an offer of marriage rather than being put off by some apparently superficial concern about appearing "a gold digger". No such finer feeling has dissuaded her from pursuing the claims she makes in this case. 52 It was submitted on behalf of Mr Petersen, and I accept, that the evidence warrants a conclusion that Ms Gregory's acknowledged affair with the lodger occurred in 1995 or 1996 and, far from being fleeting, continued in such a way as to produce a rupture in the relationship between the deceased and Ms Gregory. Several significant events may be traced to that period. Although Ms Gregory says that the affair with the lodger was in "approximately 1991", the medical records refer to her having had an affair in 1995. It was from about 1996, according to Ms Gregory, that she and the deceased no longer shared a bedroom. She had worked shifts for a long time before then and, as she accepted in cross-examination, the deceased did not suddenly become "a prolific snorer" in 1995 or 1996. It was also in about 1996 that Ms Gregory stopped doing the deceased's washing and his mother began doing it instead. A break-down of the washing machine - presumably easily dealt with by repair or replacement - was said to be the cause of this. 53 Bearing in mind the evidence about separation for about three weeks in 1994 and the deceased's letter seeking reconciliation, the conclusions I draw are that the sexual and domestic relationship of the deceased and Ms Gregory was in trouble by about 1994 and that it ultimately did not survive. By 1996, Ms Gregory had formed a relationship with the lodger and this, whether or not it survived, was enough to drive the parties apart so that they no longer shared a bedroom and Ms Gregory no longer attended to the deceased's washing. They continued to live in the same house, but (as Mr Todd confirmed) in separate bedrooms. They shared household expenses equally. From that point, the sexual and romantic relationship was at an end. 54 This is not to say that the deceased and Ms Gregory did not remain on friendly terms. When he was very ill, she may well have considered it a friendly gesture to arrange a joint holiday at Manning Point. The pose in which they were photographed at the barbecue in 2004 is, in my opinion, a pose that a man and a woman who were friends and not romantically attached would be happy to adopt. Likewise, the arrangement for Ms Gregory to spend Christmas 2004 with the deceased's family because "she had nowhere else to go" is consistent with friendship. The evidence of the action taken by the deceased after the incident with the hotel patron is also consistent with friendship. But for the deceased, the friendship was marred by negative aspects about which he complained to Ms Hogan and Mr Ehmann. 55 In the last years of his life the deceased's romantic ambitions centred on Ms Hogan. Her evidence of the attentions he paid her speaks for itself. It is supported by Ms Woods and by evidence of what the deceased said to others, including his father and, in his last days, Mr Ehmann. And the evidence of Mr Whyte confirms that each of the parties confirmed to him, in a clinical situation engendering candour, the absence of romantic relationship between them. 56 Having regard to the whole of the evidence, I am satisfied that, although at 22 February 2005, the deceased and Ms Gregory both continued to live in the Yagoona house, there was, at that time, no romantic relationship between them and no mutually acknowledged personal commitment of an emotional kind transcending the mere fact of the shared residential setting. I accordingly hold that, at the date of the deceased's death, he and Ms Gregory did not "live together as a couple". 57 It follows that Ms Gregory's claim to have been the de facto spouse at the date of death and to a grant of letters of administration fails and that such a grant will be made to Mr Petersen. I direct that short minutes of the appropriate orders be prepared by Mr Petersen and forwarded to my Associate within seven days. 58 On costs, I am disposed to think that Ms Gregory should pay Mr Petersen's costs but, for the moment, I reserve the question of costs and direct that, if Ms Gregory contends for some different order, written submissions enunciating her position be filed by delivery to my Associate (with a copy to Mr Petersen) within fourteen days and submissions thereon by Mr Petersen be filed in the same way within a further fourteen days. **********

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At a glance

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Decision date

Before

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Judgment (28 paragraphs)

Parties

Cases Cited (3)