Plaintiff v Defendant

1. Christopher James Sheils died intestate on 13 November 2023 at 64 years of age. Letters of administration on intestacy were granted to the plaintiff, Sally-Anne Forbes Nicholson, on 27 March 2024. The plaintiff asserts that she was the unregistered domestic partner of the deceased at the time of the deceased's death. However, it is also uncontroversial that, when he died, the deceased remained married to the defendant from whom he had informally separated some 20 years earlier in about 2003.
2. The plaintiff seeks an order pursuant to s 70ZD of the Administration and Probate Act 1958 (the Act) that the entirety of the deceased's estate be allocated to her as his unregistered domestic partner.
3. The deceased's estate is small and was valued at $277,300.00 in the inventory of assets and liabilities filed with the application for a grant of letters of administration.[1]
4. The plaintiff's application was supported by an affidavit made by her on 19 August 2025, and short oral evidence received by the Court. The defendant did not file an appearance in the proceeding and did not appear at the hearing. Affidavits of service filed by the plaintiff confirm that the defendant was served pursuant to the Supreme Court (General Civil Procedure) Rules 2025.[2]
5. At the conclusion of the hearing, the Court made an order pursuant to s 70ZD(3) of the Act that the whole of the deceased's residuary estate be allocated to the plaintiff to the exclusion of the defendant. These are the Court's reasons for granting this relief as sought by the plaintiff.

1. The deceased and the defendant were married in about 1990 and had two children. They purchased a property at 65 Whitby Street, Brunswick (the Brunswick property) and were registered as joint proprietors on 9 March 1995.
2. The deceased and the defendant separated in about 2003 and, on 8 March 2005, the Brunswick property was transferred into the defendant's sole name. Following the separation, the defendant and the children continued to live in the Brunswick property; the deceased experienced a period of homelessness. However, in about 2010, the defendant moved out of the Brunswick property and the deceased moved in and commenced paying rent to the defendant. This tenancy arrangement continued until 2018 when it was terminated by the defendant.
3. In 2000, the plaintiff married Paul Rochfort and had two children prior to their eventual separation.
4. In 2016, the plaintiff and the deceased, who had known each other as children, reconnected and commenced an exclusive and intimate relationship. The deceased was then employed as a psychiatric nurse and the plaintiff worked in market research.
5. After the deceased ceased living at the Brunswick property in 2018, he moved in with the plaintiff at a property she was renting in Cranbourne (the Cranbourne property). He began contributing approximately $200 per week towards household expenses.
6. In the course of their relationship, the deceased and the plaintiff (who is now 57 years old), shared a life of mutual love and affection. They had shared friends, travelled overseas, celebrated special occasions and routinely went out for leisure and social engagements. They maintained a relationship with the deceased's children, and the deceased helped raise the plaintiff's son, who lived with them. The pair also worked through the exigencies of life together, including various physical and mental health issues they each suffered.
7. On 9 December 2020, the plaintiff and the deceased purchased a property at 207 Best Street, Sea Lake (the Sea Lake property) as tenants in common in equal shares. They intended for the property to be a retreat and their eventual home in retirement. The deceased paid the purchase price and it was agreed that the plaintiff would continue to pay rent and expenses at the Cranbourne property where they continued to reside, and the deceased would pay expenses relating to the Sea Lake property.
8. Tragically, on 28 October 2023, the deceased suffered a heart attack while visiting his son in Mexico. The plaintiff travelled to Mexico to be with him. The deceased died with the plaintiff at his side on 13 November 2023. The plaintiff organised for his body to be repatriated and arranged his funeral at which she read a eulogy.

1. The rules governing intestacy appear in Part 1A of the Act; Division 5 addresses the distribution of an intestate's estate where they are survived by multiple partners.
2. For the purposes of Part 1A of the Act, 'partner' is defined as follows: [3]

partner of an intestate means the person's spouse, domestic partner or registered caring partner at the time of the intestate's death.

1. The definitions of 'domestic partner' and relatedly, 'unregistered domestic partner', appear in s 3(1) of the Act:

"domestic partner" of a person who dies means a registered domestic partner or an unregistered domestic partner of that person;

...

"unregistered domestic partner" of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person -

(a) was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and

(i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or

(ii) is the parent of a child of the person, being a child who was under 18 years of age at the time of the person's death.

1. For the purposes of the definition of 'unregistered domestic partner', all the circumstances of a relationship are to be taken into account, including, where relevant, the matters referred to in section 35(2) of the Relationships Act 2008[4] which are as follows:

(a) the degree of mutual commitment to a shared life;

(b) the duration of the relationship;

(c) the nature and extent of common residence;

(d) whether or not a sexual relationship exists;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

(f) the ownership, use and acquisition of property;

(g) the care and support of children;

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

Provisions regarding intestacy where a deceased leaves multiple partners

1. Section 70ZA of the Act provides that, where a deceased dies intestate and leaves more than one partner and has children by one or more of those partners, the partners are to receive the whole of the estate:

(a) if there is a distribution agreement, in shares in accordance with that agreement;[5] or

(b) if there is a distribution order, in accordance with that order; or

(c) in equal shares in accordance with s 70ZE.

1. As to a 'distribution order' referred to in paragraph (b) above, s 70ZD provides as follows:

(1) If an intestate leaves more than one partner, a partner may apply to the Court for a distribution order.

(2) Unless the Court otherwise orders, if a personal representative has given notice under section 70ZE(1) an application for a distribution order must be made within 3 months after the date of the notice.

(3) On an application for a distribution order, the Court may order -

(a) that the intestate's residuary estate be distributed between the partners in any way the Court considers just and equitable; and

(b) without limiting paragraph (a), that the whole of the residuary estate be allocated to one of the partners to the exclusion of the other partner or partners.

(4) A distribution order may include any conditions that the Court considers appropriate.

1. Section 70ZE, referred to in both ss 70ZA and 70ZD, provides that an intestate's personal representative must distribute the residuary estate in equal shares between the partners if:

(a) at the request of a partner of the intestate, or in their discretion, they have given notice that the estate will be distributed equally between the partners within three months of the date of notice unless they enter into a distribution agreement or one of them applies to the Court for a distribution order; and

(b) three months have elapsed since the date of the notice and the personal representative has not received or had notice of a distribution agreement or a distribution application has been made but dismissed or withdrawn.

1. The Court's power in s 70ZD(3) to make a distribution order has not been the subject of any judicial consideration.
2. Part 1A of the Act, in which s 70ZD appears, was inserted in the Act by the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017. Prior to that time, the intestacy provisions of the Act were such that, where the intestate was survived by a child and a partner, the partner was entitled to chattels, the first $100,000 of the residuary estate (plus interest) and one third of the balance remaining.[6] Where the intestate left more than one partner, those partners shared the 'partner-entitlement' on a sliding scale based upon the duration of the unregistered domestic partnership.[7]
3. The second reading speech in relation to the above amending Act confirms that the amendments were intended to address concerns around the operation of existing intestacy provisions, and to appropriately modernise those provisions:[8]

The [Victorian Law Reform Commission's 2013 Succession Laws Report] found that Victoria's intestacy regime needs to be modernized, to better reflect the way that families operate in the 21st century.

.....

The bill will provide that where an intestate dies with multiple current partners, partners can enter into a 'distribution agreement', or failing that, seek a 'distribution order' from the Supreme Court. At present, the act [sic] sets a formula for dividing the property, based on how many years the deceased has lived with an 'unregistered domestic partner', that the [Victorian Law Reform Commission] found was unlikely to result in an outcome which satisfied all the beneficiaries.

1. The Victorian Law Reform Commission report, to which the Attorney General referred in his second reading speech, contains a subsection dealing with the situation where an intestate is survived by multiple partners.[9] It includes the following:[10]

The Commission considers that the National Committee's recommendations about multiple partners' entitlements, where there are no children or other issue who are entitled to a share, would allow parties or the Court to arrive at the fairest possible outcome. It is more tailored than Victoria's current one-size-fits-all sliding scale approach and is far likelier to result in an outcome that all parties are satisfied with. Although there may be some expense involved in reaching an agreement or obtaining a distribution order, it is likely to be less than the cost of commencing family provision proceedings to redress an unfair outcome. The option for distributing the estate equally between the parties would exist, in any event, as a low-cost alternative.

1. Section 70ZD makes relevantly the same provision as s 126 of the Succession Act 2006 (NSW) (the NSW Act). [11] Section 126 (3) & (4) of the NSW Act provide as follows:

(3) On an application under this section, the Court may order that the property be distributed between the spouses in any way it considers just and equitable.

(4) If the Court considers it just and equitable to do so, it may allocate the whole of the property to one of the spouses to the exclusion of the other or others.

1. Section 126 of the NSW Act was considered in detail by Hallen J in Bailey v Palombo[12] who stated as follows:[13]

Section 126 does not prescribe the matters to which the Court must, or may, have regard in determining whether to make, and formulating, a distribution order (unlike Pt 4.4 of the Act which deals with an application for a distribution order in the estate of an Indigenous intestate). The Court is left to the terms of s 126 which states that the Court may order that the property be distributed between the spouses 'in any way it considers just and equitable'. That is a commonly used legislative phrase. It is also a single composite phrase conveying one idea. It would be useless, and might well be misleading, to seek to split it up into the component parts. It does not admit of an exhaustive definition.

It is clear that s 126 confers on the court a very broad discretion and one that requires evaluation of a broadly expressed criterion, namely "just and equitable". That term, like "equity, good conscience and substantial merits of the case" is not one of legal art: Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30.

The court is given broad, statutory jurisdiction, equitable in character to enforce not only what is legal but also what is fair. The exercise of that discretion is fact specific.

1. Nonetheless, Hallen J cautioned, the power to make a distribution order 'must not be exercised according to an unguided judicial discretion or upon some idiosyncratic view of the claims being made'.[14] After considering authorities on the meaning of the 'just and equitable', Hallen J concluded as follows:[15]

There is no presumption that the applicant for a distribution order has the right to have the property of the deceased divided between spouses. There needs to be a principled basis in existence demonstrating why it is just and equitable to make a distribution order that would alter the interests in the deceased's property.

It should also be recognised, as was written in relation to the Property (Relationships) Act, that "human relationships are infinitely various and that the statute does not require judges to apply predetermined formulae" in assessing what is just and equitable: Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96 at 120 [122]; [2008] NSWCA 276 at [122] (Young CJ in Eq).

The court is entitled to have regard to any relevant circumstances. Regard may be had to any consideration insofar as it bears upon the justice or equity of a particular order. Some considerations might tend to overlap and should not be approached in isolation as independent, air-tight categories. Care should be taken not to elevate particular circumstances unduly beyond their factual setting: Re Estate Jerrard, deceased at [116] (Lindsay J). Fiscal micrology and microscopic analysis by way of an accounting exercise or audit should also be avoided. The exercise is an holistic one in which there is the superimposition of equitable considerations.

The consideration of "all the circumstances" in determining what is just and equitable would also include a consideration of any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable. That requirement is one that permeates the entire process in coming to the conclusion that a distribution order should be made.

It can be seen, from the above, that the expression "just and equitable" does not admit of exhaustive definition. Nor is it possible to catalogue the "range of potentially competing considerations" that may be taken into account in determining whether it is just and equitable to make an order. Whilst it would not be possible to define the range of circumstances to be considered, typically, some of the matters to which the court might have regard in formulating a distribution order seem, to me, to include:

(a) the nature and extent of the deceased's estate, and of any liabilities, or charges, to which the estate is subject, in existence when the application is being considered;

(b) whether each spouse was being maintained, either wholly or partly, by the deceased before the deceased person's death and, if the Court considers it relevant, the extent to, and the basis on, which, the deceased did so;

(c) whether any property was acquired by the deceased when one of the spouses was living separately and apart from him or her, or when the other spouse was living with the deceased in the de facto relationship;

(d) the nature, and the duration, of the relationship of each spouse with the deceased;

(e) the age and state of health of each spouse when the application is being considered;

(f) the nature and extent of any obligations or responsibilities owed by the deceased to each spouse, or to any other person affected, or who may be affected, by the order;

(g) any prior agreement, or representation, made with, or by, the deceased to one, or other, of the spouses and whether a division of their then-existing property was effected at the time of separation;

(h) the nature of any jointly held property that passes by survivorship to one spouse, or to the other, and of any liabilities, or charges, secured on the jointly held property. In this regard how the deceased and his, or her, spouse considered property interests should be arranged during the continuance of their marriage or the de facto relationship may be relevant;

(i) the nature of any other property that passes to one spouse, or to the other, as a result of the death of the deceased; for example, being proceeds of superannuation, an insurance policy, or as a result of the exercise of a discretion by a trustee of a fund. In this regard, how the deceased considered his, or her, interests should be arranged after separation from his, or her, spouse may be considered;

(j) the financial resources (including earning capacity) and financial needs, both present and future, of each spouse;

(k) the eligibility of each spouse to a pension, allowance or benefit under (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party;

(l) whether any other person is liable to support either spouse;

(m) if either spouse is cohabiting with another person - the financial circumstances of the other person;

(n) any physical, intellectual, or mental, disability of either spouse and its effect on the earning capacity of that spouse;

(o) the commitments of each spouse that are necessary to enable the spouse to support (i) herself or himself; (ii) a child or any other person that the spouse has a duty to maintain; and (iii) the responsibilities of each spouse to support any other person;

(p) any contribution (whether financial or otherwise) by each spouse to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased or the deceased's family, whether made before, or after, the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received;

(q) any contribution whether financial, or otherwise, to welfare, made by the deceased to each spouse, during the deceased's lifetime;

(r) any evidence of the testamentary intentions of the deceased, including evidence of statements made by him or her;

(s) the reasonably held expectations of each spouse;

(t) the character and conduct of each spouse before, and after, the death of the deceased;

(u) the conduct of any other person before, and after, the death of the deceased;

(v) any provision made for either spouse by the deceased, either during the deceased's lifetime or made from the deceased's estate;

(w) and any other fact or circumstance that the Court considers relevant, including matters in existence at the time of the deceased's death, or at the time the application for a distribution order is being considered which, in the opinion of the court, the justice of the case requires to be taken into account.

...

As I have stated, I do not intend what I have described above to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or that the discretion be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Nor in suggesting some factors, do I wish to put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

1. Hallen J also expressed his agreement with the observations of Chao Hick Tin JA in Chow Kwok Chuen v Chow Kwok Chi[16] that the concept of 'just and equitable':[17]

... is a dynamic one and we should not circumscribe its scope by reference to case law when the cases themselves do not seek to do more than just apply the concept of 'just and equitable' to the circumstances of each case.

1. Although this Court is not bound by Bailey v Palombo, as a considered judgment of an Australian superior court in relation to a legislative provision in relevantly the same terms as s 70ZD of the Act, it is highly persuasive in considering the approach to be adopted in applying that section to the circumstances of this case. In considering and applying s 70ZD, I respectfully agree with and adopt the approach set out by Hallen J in Bailey v Palombo.

1. In order to have standing to apply to the Court for a distribution order, and to be the beneficiary of such an order, the plaintiff must be a 'partner' of the deceased. As I have explained, in the context of Part 1A of the Act, this includes someone who was the 'unregistered domestic partner' of the deceased.[18] To meet this definition, the plaintiff and deceased must have been living together on a genuine domestic basis at the time of the deceased's death and, as is relevant in the circumstances of this case, have done so continuously for a period of at least two years immediately prior to the deceased's death.[19]
2. I accept the plaintiff's submissions that, at the time of the deceased's death, they were living together on a genuine domestic basis and had been doing so continuously in the Cranbourne property for at least two years. The plaintiff and the deceased were in a relationship from 2016 until the deceased's death in late 2023. They lived together at the Cranbourne property from 2018 from which time, if not earlier, they shared a commitment to each other exclusively and absolutely. Their relationship was sexually intimate and characterised by the ordinary incidents of a relationship, such as joint social and family activities and travel, undertaken in full public view. Although they did not have children together, the deceased shared responsibility for raising the plaintiff's son. They were also financially interdependent and purchased the Sea Lake property as co-owners. I am accordingly satisfied that the plaintiff was the unregistered domestic partner of the deceased.
3. I generally accept the plaintiff's submissions and am satisfied that, in the circumstances of the case, it would be just and equitable for the whole of the deceased's entire estate to be allocated to her pursuant to s 70ZD(3). The following factors collectively weigh heavily in favour of making such an order:

(a) The plaintiff was in a fully committed domestic relationship with the deceased at the time of his death. There is no evidence that the deceased and the defendant maintained any sort of relationship after he ceased living at the Brunswick property as a tenant in 2018. They separated some 20 years before the deceased's death. I infer from the transfer of the Brunswick property into the defendant's name and the evidence of animosity between the defendant and the deceased, that the defendant and deceased severed their financial relationship at around the time of the property transfer.

(b) The estate is extremely modest.[20] The asset of significance is a half interest in the Sea Lake property which is co-owned by the plaintiff and which was acquired during her relationship with the deceased. The relevance of the small size of the estate is further considered below.

(c) The deceased and plaintiff were financially interdependent; the deceased serviced the costs of the Sea Lake property while the plaintiff met the costs of their rented home.

(d) The plaintiff is in a weak financial position. Although she has savings of about $368,000 (being the remaining proceeds from an inheritance from her mother), the benefits of the deceased's superannuation death benefit worth $170,000 and approximately $72,221 in superannuation, she is unemployed and has made an application for a disability pension. The plaintiff rents her home and, other than the half interest in the Sea Lake property, she does not own any real property. Her monthly living expenses substantially exceed her income; her limited savings are being rapidly depleted to fund this shortfall.

(e) The evidence indicates that the plaintiff suffers from a variety of health issues and that her health has been further compromised by the death of the deceased.

(f) The defendant is on notice of the application, but elected not to appear.

1. Given her age and life circumstances, in particular the matters referred to in paragraphs (d) and (e) above, I accept that the plaintiff is in circumstances of real need.
2. Two countervailing factors may be noted in considering whether it would be just and equitable for the whole of the deceased's estate to be allocated to the plaintiff. First, the plaintiff has received the benefit of the deceased's superannuation death benefit. Secondly, it is relevant that the defendant and the deceased had children together and that those children appear to have maintained a relationship with the deceased up to the deceased's death. A distribution order in the plaintiff's benefit would preclude the children from receiving any benefit from the deceased's estate through the estate of their mother, the defendant.
3. While relevant, in my assessment these considerations are of limited weight. There is very little evidence before the Court about the circumstances of the children of the deceased and the defendant. It is conceivable that they might eventually benefit indirectly from the deceased's estate as beneficiaries of the plaintiff's estate. Furthermore, given that the defendant owns the Brunswick property, it is unsafe to assume that she would not be capable of providing for the children without a contribution from the deceased's estate.
4. More generally, the weight to be given to both these considerations is necessarily limited given the very small size of the deceased's estate. The estate is worth substantially less than the amount of a partner's statutory legacy in circumstances of intestacy,[21] with the consequence that the intestacy regime would otherwise operate such that the whole of the intestate's estate would pass to their partner.[22] In that way, it can be said that the making of a distribution order in the circumstances of this case would be consistent with community standards as reflected in the Act.
5. For the foregoing reasons, it is just and equitable for the whole of the deceased's residuary estate to be allocated to the plaintiff, with no distribution to be made to the defendant.

[1] In light of further evidence in relation to the value of the real property which forms part of the estate, it may be that the estate is worth slightly more (about $310,000).

[2] Affidavit of Gina Cerasiotis filed 21 November 2025 and affidavit of Adam William Beggs filed 21 October 2025.

[5] The partners may enter into a written agreement for the distribution of the estate between them: s 70ZC of the Act.

[8] Victoria, Parliamentary Debates, Legislative Assembly, 23 November 2016, Pages 4540-4541 (Martin Pakula, Attorney-General).

[9] Victorian Law Reform Commission, Succession Laws: Report, August 2013, paragraphs 5.89-5.108.

[11] The only differences of substance between the statutory provisions (which are not of any present relevance) are: (1) whereas the NSW provision allows for the intestate's 'spouse' or 'personal representative' to apply for a distribution order, s 70ZD gives standing to an intestate's 'partner' to make such application; (2) whereas the NSW provision is expressed to apply to 'property', s 70ZD applies to an intestate's 'residuary estate'. Further, although the NSW provision does not contain an express statement of the type appearing in s 70ZD that it applies in cases where 'an intestate leaves more than one partner', it is apparent from the terms of s 126 and its statutory context that analogously it is concerned with the circumstance where an intestate leaves 'multiple spouses'.

[12] [2020] NSWSC 1209 ('Bailey v Palombo').

[16] [2008] SGCA 37.

[17] Bailey v Palombo (n 12) at [143].

[18] See ss 70B and 3(1) (definition of 'domestic partner' and 'unregistered domestic partner') of the Act at [15]-[16] above.

[21] Pursuant to s 70M of the Act, the partner's statutory legacy is $573,640.