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[2009] VSC 47
plaintiff. The court concluded that Ms Campbell was the domestic partner of the deceased within s 51(1) of the Administration and Probate Act 1958 and made the orders in the form handed to the court (para 17).
1 cited instrument linked from this judgment.
Ms Campbell sought recognition as the domestic partner of the deceased under s 51(1) of the Administration and Probate Act 1958. The court held that the statutory test must be applied broadly, looking at the human reality of the relationship rather than insisting on continuous full-time cohabitation. The applicant's affidavits, supported by independent witnesses who had observed the parties over many years and described them as a couple, were sufficient. The court therefore declared Ms Campbell to be the deceased's domestic partner and made the orders sought.
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This was an application under s 51(1) of the Administration and Probate Act 1958 in the Supreme Court of Victoria (Commercial and Equity Division) where Ms Diana Jeanne Campbell applied for orders asserting she was the domestic partner of the late Peter Douglas Sigg. The originating motion was filed on 18 August 2005 and the matter was heard and decided by PAGONE J on 9 February 2009 [1]. Ms Campbell swore affidavits asserting a close, intimate and caring relationship with the deceased, including an affidavit sworn 8 July 2005 and a further affidavit filed on the day of hearing [2, 8]. The case turned on whether she satisfied the statutory definition of 'domestic partner' in s 51(1), which requires that the person was 'living with the person at the time of the person's death, as a couple on a genuine domestic basis irrespective of gender' [3].
The court acknowledged that the parties were not living together in a continuous, full-time cohabitation arrangement of the sort some might view as an idealised married household [15]. The decisive material included independent affidavits from others who had known and observed the parties over many years. Notably, Kevin Bradner deposed that he and his wife had many opportunities to observe the parties and saw them as a couple and domestic partners [10]; Jane Anne Fowkes stated she had, over 20 years, regarded the parties as in a relationship 'as if they were husband and wife' and that they presented as a couple on social occasions [11]. Having regard to those affidavits and the supporting evidence filed by Ms Campbell, the court concluded that the combined evidence sufficed to find Ms Campbell was a domestic partner within s 51(1) and made orders in the form presented to the court [17].
The decision rests on statutory interpretation and factual assessment. PAGONE J set out the statutory words and emphasised that the test must be applied by reference to the statute and the reality of the relationship, not by narrow or pedantic criteria [3, 7]. He explicitly adopted the approach in Dow v Hoskins [2003] VSC 206, that 'living with' must not be construed narrowly and the court should 'consider taking into account the human reality of the personal, emotional and cultural complex' [7]. That meant the court should not impose a rigid model of a couple living together full-time, sharing domestic, financial and other responsibilities, because that would disadvantage applicants who had not married but lived as a couple in diverse arrangements [7].
The factual application was then straightforward. Ms Campbell provided direct evidence of an intimate and caring relationship [8]. That evidence alone was noted as following the form of the statutory language, but the judge required corroborative independent evidence given the special difficulties those cases present: the deceased cannot give evidence, and the court must be cautious because third party rights may be affected and factual assertions are sometimes untested in uncontested applications [13-16]. The independent affidavits of people who had observed the parties over long periods and described them as presenting and conducting themselves as a couple and domestic partners (Bradner and Fowkes) supplied that corroboration [10-11]. On that joint evidentiary basis, the judge concluded the statutory test was satisfied [17].
Two further strands informed the reasoning. First, the statutory purpose: to avoid depriving people of rights merely because they had not married and to avoid discrimination on the basis of sexual orientation by giving same-sex couples the same rights as heterosexual couples [4-6]. Second, a cautionary stance: the courts must be careful in making such determinations because of the potential effects on third parties and the lack of the deceased's evidence [13-16]. These considerations did not defeat the application here because the independent evidence was sufficiently strong.
Before this decision, the leading Victorian authority cited by the judge was Dow v Hoskins [2003] VSC 206, where Cummins J had urged a broad approach to the question of whether a person was 'living with' another, rejecting narrow or merely geographical constructions and encouraging consideration of the human reality of relationships [7]. Pagone J expressly followed that approach [7].
This judgment reinforces that approach in the same court and applies it in a factual setting where cohabitation was not of the continuous, full-time variety. The practical effect is that s 51(1) should be read in a manner sensitive to the diversity of domestic arrangements; absence of an idealised cohabitation pattern will not be determinative. The decision thus confirms the post-Dow trajectory: a functional, holistic assessment of domestic partnership claims informed by objective indicators such as the way parties presented to others and their established interpersonal conduct over time.
The judgment also reiterates procedural safeguards. Courts should be cautious and require, where appropriate, independent corroboration when the circumstances make factual assertions difficult to test, for example, where proceedings are uncontested or the deceased cannot be contradicted [13-16]. Thus the after-state is a reaffirmed willingness to recognise non-traditional cohabitation forms, but balanced by a guarded evidentiary posture to protect third party interests.
"The test for whether a person is a domestic partner is one which must satisfy the statutory provision. The section says that a domestic partner ... was living with the person at the time of the person's death, as a couple on a genuine domestic basis irrespective of gender." [3]
"The determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex." [7]
"It would be wrong to assume that the test ... is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities." [7]
"Courts should be cautious when being asked to make a determination that a person was the domestic partner of a deceased. ... This case is also a little unusual because the parties were not living with each other physically over the period, in the kind of model that one might have in an idealised form." [13-16]
"the independent evidence of third parties added to that of Ms Campbell is sufficient to warrant the conclusion and I will accordingly make the orders ..." [17]
This decision is directly applicable in cases where:
By contrast, this authority is less helpful where no independent evidence exists and the applicant’s assertions are unsupported; the judge here emphasised caution in such circumstances [13-16].
The judgment itself does not record any subsequent authorities treating or distinguishing it. Within its own analysis, Pagone J expressly follows Dow v Hoskins [2003] VSC 206 and applies that broader, human-reality approach to the statutory test [7]. The judgment therefore operates as an instance of the Dow approach being applied in a factual context where cohabitation was not textbook. Absent further judgments cited in this decision or later appellate commentary recorded here, there is no material in this judgment to describe how appellate or other courts subsequently treated Re Estate of Sigg. Practitioners should search post-2009 authorities for appellate consideration or citation of this judgment to determine later judicial treatment.
Several practical and doctrinal questions remain open or are only partially addressed by this judgment:
Practitioners should rely on the broad, human-reality approach endorsed here, but prepare to adduce independent and objective evidence (preferably from witnesses who observed how the parties presented themselves) when making or defending applications under s 51(1). When matters are contested or complex, judicial caution suggests the court may require more rigorous, contemporaneous evidence or oral testing of assertions to ensure third party rights are adequately protected [13-16].
Probate - Intestacy - Domestic partner - s 51(1) Administration and Probate Act 1958.
1 The application before me was commenced by originating motion filed on 18 August 2005. The applicant, Ms Campbell, relies upon s 51(1) of the Administration and Probate Act 1958 to bring the application. She does so on the basis that she is the domestic partner of the deceased, Mr Sigg.
2 The affidavit she made on 8 July 2005 said that the deceased had never married at the date of the death but that he did leave a person who, at the time of the death, was a domestic partner. The affidavit goes on to say that she was "living with the deceased as a couple on a genuine domestic basis". The passage that I have read out is of course a statement tracking the legislative provision and to that extent makes a statement of conclusion based on a mixed fact and law and provides, little independent evidence for the conclusion drawn, namely, that Ms Campbell was, as she states, the domestic partner within the terms of the section.
3 The test for whether a person is a domestic partner is one which must satisfy the statutory provision. The section says that a domestic partner of a person who dies means a person who, relevantly, was living with the person at the time of the person's death, as a couple on a genuine domestic basis irrespective of gender.
4 The provision is designed primarily to ensure that people who are domestic partners are not denied rights merely because they had not formally become married to each other. Its primary focus, therefore, is to ensure that not having gone through a marriage ceremony does not disentitle a person if, in a real and practical sense, the people were living together as a couple.
5 The section, of course, also seeks to prevent discrimination on the grounds of gender preference by ensuring that people who are living together in a same sex relationship have the same rights as a heterosexual couple would have.
6 The model, however, that might be thought to be the focus of the provision, is that of what might be regarded as a traditional relationship where what the legislation seeks to remove is the legal impediment of not being married (whether in fact or because marriage is not permitted between the same sex).
7 In the case of Dow v Hoskins,[1] Cummins J said that the determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex.[2] In that case his Honour took the view that he should approach the matter in that broader context. I agree with those observations and would add that it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities. That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove. That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the provisions of s 51 should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing between legally married couples.
8 In this proceeding, Ms Campbell has filed a number of affidavits, one as recently as today, in which she relates details of a close, intimate and caring relationship with Mr Sigg. That affidavit goes a substantial distance in establishing the kind of domestic relationship that partners might have in an idealised form as of a traditional relationship.
9 However, there are some aspects of the relationship recounted by her that might put her, at best, in the position of his closest friend at the time of his death with whom she enjoyed physical relations. The relevant provisions do not purport to confer upon a deceased's closest friend the rights and expectations of a domestic partner.
10 What I think in this case assists me in reaching the conclusion required by the legislation is the affidavits of others filed in this proceeding, in particular the affidavit of Kevin Bradner who, in paragraph 5, says that he had many opportunities over the relevant period to see the two and that they certainly appeared to him, and also to his wife, as a couple, domestic partners and a good domestic relationship.
11 Perhaps in a more positive vein is the affidavit of Jane Anne Fowkes who says that over the 20 years of her friendship with the two, she always considered the two to be in a relationship as if they were husband and wife and that they certainly related to her and to others who were present on any other social occasions, as a couple and domestic partner and that that is how they conducted themselves to her and to others.
12 Some of the other affidavits are perhaps not as strong although they are not inconsistent with that view.
13 I should say finally that applications such as these are difficult because there is a real risk that a determination will be made with the potential to affect third party rights inadvertently and without a full and adequate testing of the material and of the evidence.
14 Courts should be cautious when being asked to make a determination that a person was the domestic partner of a deceased. I say that because the deceased is not here to give evidence and one of the facts relevant to the determination is that the deceased and a person in the applicant's position, did not take the step of becoming domestic partners by going through a form of marriage.
15 This case is also a little unusual because the parties were not living with each other physically over the period, in the kind of model that one might have in an idealised form.
16 Applications of this kind, however, are frequently made without contest, without a controverter challenging the factual claims made by an applicant and the assertions made by an applicant. For these reasons also a court should be reluctant to make determinations too readily.
17 In this case, however, it seems to me that the independent evidence of third parties added to that of Ms Campbell is sufficient to warrant the conclusion and I will accordingly make the orders in the form in which it has been handed to me.
The court concluded that Ms Campbell was the domestic partner of the deceased within s 51(1) of the Administration and Probate Act 1958 and made the orders in the form handed to the court (para 17).