Reid v Registrar of Births, Deaths and Marriages

NCAT Administrative and Equal Opportunity|2020-12-02

Background

On 6 August 2019, Phillip Edward Murray died from 'undetermined natural causes'. On 22 August 2019, Mr Murray's mother, "Lynece" Hall applied to the Respondent for a death certificate in respect of her son. The Respondent registered the death in accordance with the information provided by or on behalf of Ms Hall, and issued a death certificate which stated that Mr Murray was never married. On 28 August 2019, an application was made to correct the death certificate in respect of the first name of the informant - from "Lynece" to "Lynese". On 9 September 2019, an amended death certificate was issued by the Respondent to that effect.
On 16 April 2020, the Applicant, Leavina Reid applied to the Respondent to have the death certificate amended to record her as Mr Murray's de facto. The Applicant provided documents in support of her contention and responded to requests from the Respondent for additional information. On 22 May 2020, the Respondent informed the Applicant that her application to amend the death certificate was refused, finding that she was not in a de facto relationship with Mr Murray. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

Relevant Law

A person's death must be registered pursuant to s 4 of the Births, Deaths and Marriages Registration Act 1995 (the Act). The Registrar registers a death by making an entry about the death in the Register including the particulars required by the Births, Deaths and Marriages Registration Regulation 2017 (Regulation) pursuant to s 42(1) of the Act.

The conduct of the hearing

Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Registrar's, and there is no presumption that the decision of the [Registrar] is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.
The Applicant provided a statement dated 27 October 2020 and the Respondent addressed the Applicant's statement in its submission. On 12 November 2020 the Applicant provided another statement, which, in turn, addressed the Respondent's submissions. At the hearing the Applicant gave evidence, but curiously, the representative of the Respondent chose not to cross examine the Applicant at all, even though the Applicant had filed further evidence following the Respondent's submissions. It remained for me to seek any clarification of the Applicant's evidence. Consequently, other than addressing matters I raised with her, the Applicant's evidence was unchallenged. None of the Applicant's witnesses who had provided letters or other material in relation to Ms Reid and Mr Murray's relationship were required for cross examination. Furthermore, having heard the Applicant's evidence, the Respondent made no further submissions, other than to simply repeat its position that the Applicant had not provided sufficient evidence to warrant amending Mr Murray's death registration to add her as de facto, as provided under s 45 of the Act. Having taken that position in the decision under review, repeating that position in its submissions, and providing the s 58 documents, the Respondent essentially took no part in the proceedings. I found the Respondent's approach to be particularly unhelpful. I observe that a respondent agency has a duty to assist the Tribunal, and agencies and their legal representatives generally comply with the State's Model Litigant Policy: CNC v NSW Police Force [2017] NSWCATAD 94.

CONSIDERATION

I accept that while there may be no legal consequence to the requested change to Mr Murray's death certificate, there is personal significance to Ms Reid: Garrick v NSW Registry of Births, Deaths and Marriages [2017] NSWCATAD 306 at [2].
In determining if Mr Murray and the Applicant were, at the date of his death, in a de facto relationship the factors under s 21C(3) of the Interpretation Act need to be considered. Further, all the circumstances of the relationship are to be considered: see for example, Jack v NSW Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200, which reviewed the few recent authorities.

The duration of the relationship

The Respondent conceded that a relationship of "some degree" existed between the Applicant and Mr Murray between January 2018 and Mr Murray's death on 6 August 2019, but did not specify what this conceded relationship was.
The Applicant's evidence was that she and Mr Murray met in September or October 2017, when she was working as a medical receptionist. He came into the surgery, and they just "kept talking". She said they commenced a de facto relationship in January 2018 when Mr Murray moved into her home in Dubbo. The Applicant said she "made him wait" because she was having some legal problems and wanted that issue to be concluded before they embarked on the relationship. Mr Murray had been undertaking dialysis 3 times a week in Bathurst, but then a 'chair' became available in Dubbo.
The Respondent submitted that the Applicant, in her letter to the Respondent dated 8 April 2020, stated that she and Mr Murray were living together from May 2018. This is not an accurate account of the letter. Her letter referred to material she was forwarding, which material would support a contention that they were living together from (at least) May 2018. A discharge referral from Dubbo Base Hospital records Mr Murray's date of admission as 23 May 2018 and noted he lived with his partner in Dubbo.
The Applicant's mother, in a letter dated 21 August 2020 wrote that the de facto relationship commenced in November 2017, and (although omitted by the Respondent) said they moved into the Dubbo address in January 2018. She wrote that in May 2018 she assisted them in moving to Coffs Harbour. She stated that the Applicant was Mr Murray's partner and carer and that they were in a de facto relationship until Mr Murray's death.
The Applicant provided Mr Murray's Patient Demographic Record from Bawrunga Coffs Harbour GP Super Clinic (Clinic) which describes the Applicant as being Mr Murray's "Next of Kin", and his "Spouse/Partner". Mr Murray's marital status was listed there as "Defacto". The Respondent noted that this document was produced on 8 April 2020 and submitted that it is unclear on what date this information was provided to the Clinic. There was no evidence that the information had been contrived, as the Respondent appeared to suggest.
The Applicant provided a letter by Dr Moe Moe dated 21 August 2020 which stated that he treated both the Applicant and Mr Murray at the Clinic, that they would mostly present together for appointments, that the Applicant was Mr Murray's partner and carer and that he was aware that they were in a de facto relationship until Mr Murray's death.
The Applicant provided a letter from Dr Naveed Shaukat dated 21 August 2020 in which he wrote that he started treating Mr Murray from 14 June 2018, and the Applicant, earlier. He said that he often saw the Applicant and Mr Murray for appointments together. He said he was aware they were in a de facto relationship and the Applicant was Mr Murray's partner and carer, and that they shared the same address.
The Applicant also provided a medical certificate from Dr Shaukat dated 18 December 2018 which referred to the Applicant as Mr Murray's carer. I draw no adverse conclusion from the medical certificate not commenting on the nature of the relationship between the Applicant and Mr Murray, by describing the Applicant as Mr Murray's "carer".
I asked the Applicant if she had sought carer payment from Centrelink. She said they had applied to Centrelink at the beginning of 2019 but had become overwhelmed by the requisite paperwork and had not persevered. She said that while the extra cash would have been welcome, money was not important to them.
The Applicant provided a letter from Laetitia Stahlhut-Ahoy dated 21 August 2020 which stated that the Applicant and Mr Murray were living in a de facto relationship, moving to Coffs Harbour in May 2018 and living in a de facto relationship until Mr Murray's death. Ms Stahlhut-Ahoy said she attended their home to offer support to the Applicant and Mr Murray. The Applicant was described as Mr Murray's main carer and support for his medical conditions and "a loving partner".
The Applicant provided a letter from Tracey Mills dated 21 August 2020 which stated that she was aware that the Applicant and Mr Murray entered into a de facto relationship in January 2018, residing together in Dubbo before relocating to Coffs Harbour in May 2018. The Applicant was referred to as Mr Murray's partner and carer until the time of his death.
The Applicant provided a letter from John Hunter Hospital dated 10 December 2018 in relation to the Applicant's parole requirements. The letter refers to Mr Murray as the Applicant's partner, who she was stated as supporting during his admission to the hospital.
I accept that the Applicant and Mr Murray were in a relationship from January 2018. I turned then to consider if that relationship continued until Mr Murray's death.
The Respondent referred to screenshots of text messages exchanged between the Applicant and Mr Murray which include an undated (although apparently on a date prior to 24 July 2019) text message sent from the Applicant to Mr Murray which states, "All I want to do is have a real conversation with you and then leave you be. I probably won't get it, cause that's the kind of person you are. I'm gonna keep trying though." The Respondent submitted that it is unclear, given the nature of this text message, whether a relationship between the Applicant and Mr Murray existed at that time. It is noted though that Mr Murray, at 9:32 am on 24 July 2019, sent a text message to the Applicant which states, somewhat unusually in my view, "ur my next of kin". It is unknown in what context this apparent declaration occurred.
Another text message sent to Mr Murray by the Applicant at 5:10 pm on 31 July 2019 states, "Look.. Text me when you have no one around you, so I can at least have a decent convo with you." The Respondent submitted that this message is similarly suggestive of a possible termination of the relationship between the Applicant and Mr Murray. While that is one interpretation, the Applicant's uncontradicted evidence was that Mr Murray would not speak to her if his relatives were around (see below).
Other screenshots of text messages between the Applicant and Mr Murray shortly thereafter detail an arrangement to meet on 2 August 2019 and an exchange on 3 August 2019 in which Mr Murray writes at 4:36 pm, "/ miss u" to which the Applicant replied at 4:36 pm, "I miss you more". The Applicant sent a text message to Mr Murray at 7:15 pm on that date stating, "I'm here" which is suggestive of them meeting and on 5 August 2019 at 12:42 pm sends Mr Murray a text message which stated, "I miss you already" followed by an emoji depicting a sad face and two crying emojis. It is difficult to see what adverse inference the Respondent seeks to draw from the exchange. I do not consider it reflects a broken relationship, but instead is consistent with partners who are sad to be apart. The circumstances of their parting shortly before Mr Murray's death are discussed below.
The section does not prescribe a minimum period of time that must exist before a couple are considered to be in a de facto relationship. I am satisfied, on the balance of probabilities that the relationship existed from at least January 2018. Further, I accept that Mr Murray and Ms Reid's relationship continued till the time of his death.

The nature and extent of their common residence

There is clear evidence that the Applicant and Mr Murray resided together in Dubbo between January 2018 and May 2018; the Applicant's mother and Tracey Mills' each state that the Applicant and Mr Murray resided together at the Dubbo address from January 2018. The Respondent invited my attention to that the Agreement to Sub-Lease dated 5 December 2017 in relation the Dubbo residence wherein only the Applicant is recorded as 'sub-lessee'. I consider this consistent with the Applicant's evidence that Mr Murray moved into her Dubbo address in January 2018; they had not yet commenced co-habiting at the date of the sub-lease. In any event, Mr Murray's income was limited to the DSP, and may not have been in a position to enter a lease.
The Respondent conceded that there is some evidence that the Applicant and Mr Murray resided at a common residence in Coffs Harbour.
The Applicant's evidence was that in May 2018, she and Mr Murray moved to Coffs Harbour. The Applicant's mother, Dr Moe, Dr Shaukat and Ms Stahlhut-Ahoy and Ms Mills all said the Applicant and Mr Murray lived in Coffs Harbour together from May 2018. The Respondent submitted though that the evidence in relation to this consideration is conflicting and that much of the evidence of Mr Murray residing at the Applicant's residence post-dates Mr Murray's death. I do not accept this to be the case. The high level of consistency both between the Applicant's associates and the medical practitioners militates against such an inference. While some of the witness statements were only provided in August of this year, there is also objective medical evidence that the Applicant and Mr Murray were living together in Coffs Harbour from May 2018. For example, the Patient Demographic Report from the Clinic records that Mr Murray resided at the Coffs Harbour address. A letter from John Hunter Hospital in support of the Applicant's parole requirements states that Mr Murray resided at the Coffs Harbour address at 10 December 2018 (approximately 8 months prior to Mr Murray's death).
I accept that the Applicant and Mr Murray moved together to Coffs Harbour in May 2018 and lived there together from that time.
The Applicant's evidence was that they moved to Coffs Harbour, primarily because of better health facilities there for Mr Murray. Before moving he had organized the availability of dialysis, and she arranged a job, again as a medical receptionist. The Coffs Harbour premises were leased in her name; a letter from her employer dated 20 October 2020 records that her rent was paid by way of salary sacrifice, direct to the real estate agent. Consequently, I draw no adverse conclusion about Mr Murray not being recorded on the lease.
The Respondent referred to Mr Murray's Death Certificate and the Notice of Particulars of Death each of which does not record the Coffs Harbour premises as his place of residence, but instead an address in Barden Ridge (Sutherland). The Applicant said that she believed that to be the address of of Mr Murray's sister. Her unchallenged evidence was that she believed Mr Murray visited there once in March 2019, and July 2019, and prior to his admission to hospital and that he spent no more than a few weeks there during those visits. I also observe that Mr Murray's mother had supplied the information for the Death Certificate.
Between 11-26 June 2019 Mr Murray was again hospitalised and the Applicant's unchallenged evidence was that she visited him every day. The documentation in relation to Mr Murray's admission to Coffs Harbour Health Campus recorded "Patient has had changes to social situation requiring him to move out of the area. However, he was discharged home after changes in home situation during admission." The Respondent submitted that the stability of Mr Murray's relationship and residence with the Applicant is therefore unclear. The entry is somewhat confusing - there was no evidence as to what were the 'changes to social situation', but Mr Murray was 'discharged home', which from the hospital record, would have been to the Coffs Harbour premises Mr Murray shared with the Applicant.
Correspondence was sent to Mr Murray at the Coffs Harbour address by the Roads and Maritime Service (RMS) in relation to a decision to lift a business restriction on 28 February 2020. The Respondent submitted that, as the document post-dates Mr Murray's death, it is unclear on what date this information was provided to the RMS. There was no evidence that the information in relation to Mr Murray's address was provided other than by Mr Murray prior to his death.
The Respondent conceded that the booking confirmation in relation to the reservation at the Kingsgrove Hotel (the hotel) from 2 to 5 August 2019 and screenshots of text message exchanges between the Applicant and Mr Murray allow an inference that Mr Murray attended the hotel during the Applicant's stay. I note the booking was for two people and the Applicant's unchallenged evidence was that the purpose of the booking was to enable Mr Murray to recuperate after his stay at St George Hospital.
Further screenshots of text messages exchanged between the Applicant and Mr Murray include a message sent to Mr Murray from the Applicant at approximately 12:58 pm on 5 August 2019 as follows: "I've texted [a friend] and i explained everything to her. Shes gonna call me tonight to talk more, i think staying with her rather then [Mr Murray's sister] will be a better environment for the both of us". The Respondent submitted that this text message casts further doubt on the existence and stability of any shared residence. I do not agree. The messages are equivocal, but are equally consistent with the Applicant's account of staying with Mr Murray while he recuperated.
The Respondent submitted that the evidence provided by the Applicant is suggestive of Mr Murray, on occasion or for periods of time, staying at the Applicant's residence, rather than the Applicant and Mr Murray sharing a common residence for the duration of their relationship. I do not agree. It is clear Mr Murray and the Applicant shared a common residence, although there may have been short absences when Mr Murray stayed with his sister.

Whether a sexual relationship existed

The Applicant asserted that a sexual relationship existed. The Respondent submitted that there was no evidence to support this contention. It was not put the Applicant that there was no sexual relationship. It would be unlikely, in my view, that a mature engaged couple, did not have a sexual relationship, and I consider the Respondent's criticism that there was 'no evidence' of such a relationship to be inappropriate, and bordering on offensive.

The degree of financial dependence or independence, and any arrangements for financial support, between them

The Applicant was the primary breadwinner, working as a medical receptionist. The Applicant said her remuneration package at Coffs Harbour included the payment of rent, although, more accurately, her rent was paid by way of salary sacrifice. She received $360 per fortnight to meet their other expenses, which included groceries, electricity and other living expenses, and Mr Murray's mobile phone charges. She said she paid most of the couple's bills. Mr Murray, whose only source of income was the DSP (for his chronic renal failure) of about $700 per fortnight, contributed, she said, "what he could towards the payment of bills and living expenses".
Mr Murray would drive her to work 2-3 times a week and collect her afterwards. She said she did not know into what account his DSP was deposited; he frequently spent all his money while she was at work, but she did not know what he spent it on. They did not have a joint bank account, and from information provided by the Applicant to the Respondent, did they appeared to have had separate Medicare cards.
The Applicant said she had purchased $500 worth of clothing for Mr Murray at Christmas time in 2018. It was unclear if the Applicant noted "Christmas" as identifying the approximate date of the purchase, or whether, this represented a generous Christmas gift.
The Respondent submitted that bank statements provided by the Applicant, with highlighted entries said to indicate joint living expenses, is insufficient evidence to support an assertion of financial dependence or interdependence. Again, the Respondent did not seek to test the Applicant's reliance on the bank records, which include multiple entries for takeaway food and groceries. A few entries referred to transfers into Mr Murray's account.
It is difficult to ascertain what, financially, Mr Murray brought to the relationship; he made contributions to expenses "when he could" and he drove the Applicant to and from her work.

The ownership, use and acquisition of property

The evidence was that the Applicant gave Mr Murray a mobile phone, purchased clothing for him and they purchased a barbecue which was paid for from the Applicant's account. The Respondent submitted that this does not amount to evidence of joint ownership, use or acquisition of property, noting also the absence of any documentary evidence in relation to the purchase of the barbecue or any intention as to its shared use. The Applicant's evidence of the purchase was, once again, unchallenged, and I accept that they chose the barbecue together, that it was paid for by the Applicant and that they intended to, and did use it together at the rented Coffs Harbour premises.
Significantly in my view, the Applicant said Mr Murray gave her a ring in early 2019. She said in her evidence that it was a man's ring and she would wear it around her neck because it was too large to wear on her finger. After Mr Murray died, she said, she had it made into 2 bands and she gave one to Mr Murray's mother.
It is clear the Applicant and Mr Murray had little in the way of assets. The Applicant did not know on what Mr Murray spent his money. The bank records show the Applicant made occasional payments to a betting agency. It also appears that, to some degree, the Applicant's mother was providing the Applicant with some financial support.

The degree of mutual commitment to a shared life

The Applicant and Mr Murray attended many doctors' appointments together. They would go out for brunch most Mondays and, as Monday was the Applicant's payday, go shopping together after brunch. They would go to the beach and go driving together.
In May 2019 Mr Murray proposed and the Applicant accepted; he had given her a ring and, she said, they were both very happy. The Respondent submitted that there was no independent evidence of this proposal, but again, the Applicant's evidence was unchallenged.
Within a few days of his discharge from Coffs Harbour hospital on 27 June 2019, on 5 July 2019, they had attended the Applicant's father's funeral together. The Applicant gave evidence that she 'lost it' when her father died, and Mr Murray was unable to handle her grief. On about 9 or 10 July 2019 he went, she said, to his sister's in Sutherland, for a planned period of 2 weeks. Then, shortly after he arrived, he required hospitalisation at St George Hospital. She could not recall how long he was there but, the Applicant said, she bought him an Ipad so they could contact each other while he was in hospital; sometimes he would phone her while he was having dialysis, but he would say little if his sister or his brother were around.
The Applicant said she did not know if Mr Murray was in a funeral fund, but she knew there was no will and no life insurance. Mr Murray, she said, never wanted to discuss what would happen if his health deteriorated further.
The Respondent conceded that there was a relationship "of some degree" between the Applicant and Mr Murray, but submitted that the relationship was of a somewhat tumultuous nature which appears to have ceased and resumed at relevant times and does not evince a mutual commitment to a shared life. I do not accept that the evidence demonstrates a "tumultuous" relationship as the Respondent submitted. Neither does the evidence support a conclusion that the relationship ceased and resumed. The only evidence of any discord was when Mr Murray apparently found the Applicant's grief on the death of her father hard to deal with, and he went to his sister's in Sutherland. The evidence though is that, in any event, he and the Applicant continued to be in contact while he was away and that they were together during his recuperation. Further, the Applicant's unchallenged evidence was that she was returning to Coffs Harbour to collect the car so as to bring Mr Murray home, when he sadly died.

The care and support of children

Not applicable.

The performance of household duties

The Applicant and Mr Murray purchased a barbecue together which they used a few times a week that summer. He manned the barbecue and she prepared the salads. However, they mostly ate takeaway food, but she otherwise did the cooking at home.
It was submitted on the Applicant's behalf that she and Mr Murray shared domestic duties. Her evidence, however, did not support such a submission. Her evidence was that she did all their washing and cleaning for them both. While they may have shared some cooking duties, with Mr Murray barbequing for them and the Applicant making salads, she otherwise did the cooking. She made sure Mr Murray took his medication on time.

The reputation and public aspects of the relationship

While the Applicant and Mr Murray presented publicly as a couple when they went out to the beach, to cafes, to restaurants or shops, I consider that this criterion also importantly, requires an assessment of how they were regarded by people they knew.
The Applicant's mother, from her letter of 21 August 2020 regarded them as being in a de facto relationship, as did Ms Stahlhut-Ahoy, Ms Mills and Kiara Reid. Mr Murray and the Applicant attended her family gatherings together, including the Applicant's mother's 60th birthday and the Applicant's father's funeral, a month before Mr Murray's own death.
Due to his poor health, Mr Murray and the Applicant appear to have attended many doctors' appointments together. The Applicant was considered to be his partner and next of kin by many medical professionals, such as the Clinic, John Hunter Hospital, Dr Moe, and Dr Shaukat.
The Respondent submitted that the evidence on this point is conflicting.
The Respondent was critical of photographs provided by the Applicant as being unverified as to date and place. These included photographs of the Applicant and Mr Murray said to be taken in March 2018 at the Applicant's mother's 60th birthday celebration; a photograph of the Applicant and Mr Murray depicting the them in the car on 26 January 2019; a photograph of the Applicant and Mr Murray which depicts them attending the Applicant's father's 'viewing' at Macksville on 5 July 2019. The Applicant's evidence as to the date and place of the photographs was unchallenged.
The Applicant said that Mr Murray's mother had stayed with them in mid May 2018, but it is unclear it this was in Dubbo before their move to Coffs Harbour, so to that extent, at that time, she could not have helped but notice that they were co-habiting.
The Applicant said in her evidence that when Mr Murray was due to be discharged from St George Hospital, he asked her to come to Sydney. She was with him when he was discharged and they stayed together at a hotel in Kingsgrove while he recuperated during the weekend of 2 - 5 August 2019. The Applicant paid for the accommodation, taxi and train fares, groceries, food and other expenses. The plan, she said in her evidence, was that they would return to Coffs Harbour. However, Mr Murray was not well enough to travel home by train, so she was travelling home to get the car. Mr Murray wanted to see his parents in Collarenabri when he was well enough to travel. While on the train she tried to reach him, but was unable to do so. She received a phone call the next day from a cousin of Mr Murray's to tell her that he had died.
The Applicant wrote in a letter to the Respondent dated 15 May 2020 that she and Mr Murray's mother had become estranged in April 2019, and that all communications with Mr Murray's family went through her own mother. Her evidence was that she and Mr Murray's mother had 'rubbed each other up the wrong way' and had a falling out about Mr Murray in March or April 2019. Somewhat inconsistently, she said in her evidence that Mr Murray told her the Sunday before he died that his mother and sister wanted them to be married.
She said that on the day of Mr Murray's viewing at the funeral parlour she "was told by the funeral director that he, Michael (M J Ford Funeral Directory of Walgett), was never told about [her] and who [she] was to [her] partner, Phillip." She said Mr Murray's mother asked her if her son was in a funeral fund. On the day of the viewing Mr Murray's mother asked her if she would fund the wake. She produced evidence of a bank transfer which was said to relate to payment for the wake. The Applicant continued that "about a day later" she went to visit Mr Murray's mother and other family, but did not have a conversation about her and Mr Murray's relationship as she "just presumed Phillip's family (particularly Phillip's father and father's family) knew who [she] was."
Mr Murray's mother organized the funeral, and the Applicant's evidence was that friends told her when it was on. She travelled with her niece, Kiara Reid to the funeral in Collarenebri. Ms Reid wrote in a letter dated 6 November 2020 of some tension at the funeral between the Applicant and Mr Murray's family. Mr Murray's memorial booklet, a copy of which was provided by the Applicant, made no mention of the Applicant at all, nor, among the many photographs in the booklet, were there any of her with Mr Murray.
The Applicant's evidence was that following the funeral, she has had no contact with Mr Murray's mother or other members of Mr Murray's family. She went to the first anniversary of Mr Murray's death. The first day of the visit went well, but on the second day Mr Murray's family had called the Police.
The Respondent submitted that it was unclear what (if anything) Mr Murray's family thought the relationship between the Applicant and Mr Murray was or whether they considered that a relationship existed.
The Respondent noted that Ms Hall, "does not consent" to the application made by the Applicant. In fact, the Respondent had emailed Ms Hall on 1 May 2020 requesting evidence that a de facto relationship did (or did not) exist. No response was received. There was no evidence that Ms Hall was followed up, or, indeed, if she had received the email. I do not accept that any weight can be given to her alleged "failure to consent" to the application; it is simply unknown what her view is.

Conclusion

Application of the criteria the Interpretation Act will often be difficult because relationships come in many forms. Not all relationships follow the stereotypes of family life; people may structure their domestic arrangements as they please. It is still necessary, for the present purpose to attempt to characterise the relationship between the Applicant and Mr Murray. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be in a de facto relationship. I must consider all of the circumstances.
I have found that the Applicant and Mr Murray co-habited from January 2018 until his death in August 2019, notwithstanding a short temporary estrangement and his final hospitalisation. I consider there was likely to have been a sexual relationship. They had little in the way of assets and there appears to have been little intermingling of finances, with most of the financial contribution to the relationship being provided by the Applicant, who also did the bulk, if not all, of the household duties. I do consider though that there was a significant degree of mutual commitment to a shared life, in that notwithstanding the Applicant had a job, she still went with Mr Murray to his many medical appointments and supported him otherwise. Significantly, they planned to be married and she wore his ring. It appears that, at least the Applicant's family and associates regarded them as a couple, as did the medical practitioners with whom they engaged. As to Mr Murray's family, the Applicant's evidence was of an ongoing dispute between her and Mr Murray's mother which commenced in about March 2019. Her evidence was of attempts at reconciliation, including giving Mr Murray's mother some of the ring Mr Murray had given her. That she had no role nor was given any recognition in Mr Murray's funeral is consistent with her evidence of the dispute. The information provided to the Respondent by or on behalf of Mr Murray's mother is also consistent with a dispute between the Applicant and Mr Murray's mother.
On balance, the evidence before the Tribunal is that the Applicant and Mr Murray were in a de facto relationship at the date of Mr Murray's death.

DECISION

The decision under review is set aside.

ORDERS

The Tribunal orders that the Applicant is to be recorded as the de facto spouse of Phillip Edward Murray on Mr Murray's death certificate.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2021

At a glance

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Decision date

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Judgment (17 paragraphs)

Parties

Cases Cited (4)