Despite the fact that orders were sought setting aside an order of the primary judge granting letters of administration to the respondents, that order was not made by his Honour, but subsequently by a registrar. However, it was suggested that his Honour's order constituted a direction that there should be a grant in favour of the respondents and hence constituted a final order. In any event, no complaint was raised that the appellant needed leave to appeal.
7 While it is true that the issue in dispute was largely a factual matter, the respondents were not correct to assert that it turned entirely on the credibility of witnesses. Rather, it turned on an evaluative assessment of matters of objective fact, many of which were not in dispute. To the extent that it turned upon the state of mind of the deceased, that was a matter to be inferred from the testimony of other witnesses (and a few documents) as to his conduct. Accordingly, whilst accepting the constraints flowing from the opportunity afforded the trial judge to assess the oral evidence, it was open to this Court to reassess the factual finding: see Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 at [223]-[224] (Hill, Weinberg and Dowsett JJ); Branir v Owston Nominees (No 2) [2001] FCA 1833; 117 FCR 424 at [25] (Allsop J, Drummond and Mansfield JJ agreeing); Costa v Public Trustee of NSW [2008] NSWCA 223 at [14]-[19] (Hodgson JA); [48]-[50] (Ipp JA) and in my judgment at [88]-[96]. For the reasons which follow, the approach adopted by his Honour was erroneous and the appeal should be allowed.
Relevant legal principles
8 A determination of entitlement to the estate of the deceased turns in the present case on s 61B(3B) of the Probate and Administration Act 1898 (NSW), which relevantly provides as follows:
" 61B Succession to real and personal property on intestacy
…
(3B) Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for:
(a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate - the de facto spouse, or
(b) in any other case:
(i) except as provided by subparagraph (ii) - the issue as if the intestate left no spouse, or
(ii) where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the intestate are issue also of the de facto spouse - the de facto spouse."
9 For practical purposes, the question was whether the appellant was a de facto spouse within the terms of paragraph (a) of sub-s (3B).
10 Section 61B falls within Pt 2 of the Act, as does s 32G which defines a number of relevant terms and provides as follows:
" 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."
11 It was not suggested that the appellant was in any other de facto relationship :the only question was that posed by paragraph (a) of the definition of de facto spouse, namely whether she was the sole partner in a de facto relationship with the deceased.
12 The term "sole partner" is potentially obscure. Clearly there must be two people in the relationship and paragraph (b) excludes the possibility of the de facto spouse being a partner in another de facto relationship. Logically paragraph (a) must either limit the relationship between the de facto spouse and the deceased to one involving two people, or exclude the situation where the deceased was in a de facto relationship with a third person as well as the claimant de facto spouse. The scope of paragraph (a), in this sense, does not need to be resolved in the present case, as the primary judge did not find that the deceased was in a de facto relationship with any third person.
13 The other relevant definitional provision is to be found in s 4 of the Property (Relationships) Act which defines the term "de facto relationship", as picked up in s 32G(1) of the Probate and Administration Act. Section 4, so far as relevant, reads:
" 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."
14 Read in combination, these subsections do not give rise to any precise definition, even in relation to the identified criteria. However, with the exception of par (2)(f), referring to "mutual commitment to a shared life", the identified criteria are matters which, for the most part, are objective circumstances, to be determined on whatever evidence may be available, noting that some involve public aspects of the relationship and some private aspects. To the extent that the commitment of the deceased to a shared life with the putative de facto partner depends on statements made by the deceased during his or her lifetime, there will be no direct test of that person's credibility, but there may well be factors of a contextual nature which will make it difficult to assess the extent to which such statements truly reflected the deceased's own perception of the relationship.
15 The trial judge reminded himself at [36]:
"As in many of these matters the evidence adduced by either side, although it seems to some extent contradictory, is often generally truthful. It is just that people see things partly as they want to see them or as they think they should see them and partly in accordance with statements made to them by the persons involved in a relationship. It is usually not possible to reject the evidence of witnesses of one side and accept the evidence of witnesses of another in coming to a decision as to whether or not a de facto relationship has been established. It is also necessary to bear in mind [that] it is incorrect to think that perfection and harmony is [sic] a necessary requirement in de facto relationships but not in married relationships: Bar-Mordecai v Hillston [2004] NSWCA 65."
16 Bar-Mordecai involved an appeal with respect to an application under the Family Provision Act 1982 (NSW), pursuant to s 6(1) of which the applicant had to be an "eligible person" namely, a person who was "living with the deceased person as her husband on a bona fide domestic basis" at the time of her death. The relevant criteria in that respect were identified in terms to similar effect as the list of criteria in s 4(2) of the Property (Relationships) Act. They were identified by Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 at 459, referring to the New South Wales Law Reform Commission's Report on De facto Relationships (LRC 36, 1983) at par 17.11, which in turn derived the criteria from case-law in the Administrative Appeals Tribunal with respect to social security cases. The passages which the trial judge in the present case had in mind in referring to the judgment in this Court in Bar-Mordecai may have included the following:
"120 The appellant was not entirely faithful to the deceased from a sexual point of view. Some marriages have a similar characteristic. It is, however relevant that the deceased 'took him back' after the short interlude in 1985. The secret dalliance with Ms Yakovleva that commenced a few months before the death of the deceased is not irrelevant to the 'eligible person' issue, but again it cannot be determinative. …
…
123 Whatever good intent may be present at the inception of a "normal" marriage, experience reveals that it more often than not turns out to be disadvantageous financially for one spouse rather than the other. Human nature is too complex to conclude from this that marriages are not genuine on this account. The financially 'exploited' partner may be content that it is happening or at least may see it as an acceptable part of the give and take of an ongoing commitment 'for better or worse'.
124 Almost by definition, there will be one or more aspects of a de facto relationship that differ from the paradigmatic legal marriage. Even though a couple may have the legal capacity to wed, their choice to refrain from such a public and legal commitment is not in itself enough to preclude entry into a de facto relationship.
125 The concept of living 'as … husband on a bona fide domestic basis ' is not to be broken down into individual components …. The concept of 'bona fide domestic' relationship is not necessarily lost because there are bouts of selfishness or infidelity by one or both of the partners. The thrust of the descriptor 'bona fide' is to exclude sham relationships structured knowingly to present an outward appearance of marriage where its core elements are lacking. The unusual relationship between this couple did not suffer from any such lack of bona fides."
17 The respondents noted, correctly, that the exercise undertaken by the primary judge involved an evaluative or "discretionary" judgment, but one which differed, from the point of appellate review, from a challenge to the exercise of a discretionary power: see Costa at [98]-[105].
Factual background
(a) common residence
18 Much of the evidence concerning the joint and separate lives of the deceased and the appellant was uncontroversial. They met in 1993 and, as described by the trial judge, "immediately formed a relationship including a sexual relationship": at [7]. They did not immediately live together in the same house but they did spend nights at each other's separate residences. At that stage, each had been married but had separated. His Honour continued the account of the early relationship in the following terms:
"The deceased changed houses, first to Camperdown and then later to Paddington and he and the [appellant] did live together in the Paddington house for six months in 1998. During this time I accept the evidence that they ate together, slept together and it seems lived as a couple would. It is accepted by the [respondents] that the deceased and the [appellant] were in a de facto relationship at some stage and it seems that they were then."
19 In 1998, the deceased purchased an hotel with two business partners, whose shares he subsequently acquired, with, according to the appellant, a contribution from her of $25,000. Shortly after the hotel was purchased (in September 1998) the appellant moved in to the licensee's accommodation on the first floor. The deceased moved to the hotel in 1999, after selling his property in Paddington.
20 During the period from early 2000 until April 2004, the appellant and the deceased lived in the hotel and nowhere else. They did not share a bedroom throughout that period, the appellant having moved from the main bedroom in the licensee's accommodation to a small bedroom on the first floor and later to a bedroom on the third floor. She stated that she continued to use the bathroom on the first floor and kept her "belongings" there. The trial judge accepted that she continued to use that bathroom, but did not accept that she "kept all her belongings in the second bedroom there": at [10].
21 It is not in dispute that, in April 2004, both the deceased and the appellant moved from the hotel to a two bedroom rented flat in Zetland. Both continued to live there, sleeping in separate bedrooms, until the death of the deceased in 2006.
(b) sexual relationship
22 As noted above, his Honour accepted that there had been a sexual relationship between the appellant and the deceased which commenced in 1993. The deceased undoubtedly had sexual relationships with other women in the course of the 13 years prior to his death. The deceased was married to Rita Quijarro from November 1980 until July 2006. Although they had separated by 1993, she stated that they had a "casual physical and sexual relationship until approximately February 2006". She described the deceased as "a woman's man". The primary judge described him as "something of a philanderer": at [6]. In such circumstances, it may be that the existence of a sexual relationship is of more limited significance that it might otherwise be, although, it may also mean that the absence of a sexual relationship would have greater significance than it might in other circumstances. Nevertheless, his Honour accepted that a sexual relationship with the appellant continued until the time of the deceased's death.
23 In February 2006 the deceased met Marilyn Burton (known as "Buda") at a restaurant in Murwillumbah. On Sunday, 8 October 2006, the deceased flew to the north coast to visit Ms Burton. He died the following day. The trial judge accepted that he had spent a romantic night with the appellant, before flying to the north coast. As his Honour described it at [46]:
"It is an extraordinary relationship where a man can share a bottle of champagne by candlelight in bed and have sexual relations with one woman on the morning of his trip north to visit another woman and yet will die the next day in bed with that other woman to whom he had proposed marriage and with whom he has discussed a marriage date to take place some months later."
24 The question of the deceased's relationship with Ms Burton is relevant to whether he maintained a commitment to a shared life with the appellant at the time of his death. However, it is clear that he did maintain a common residence with the appellant and an on-going sexual relationship, until the time of his death.
(c) financial and property arrangements
25 Both the appellant and the deceased had, when they met in 1993, established lives with some financial resources of their own. In 1996 or 1997, they purchased a property in Redfern with another couple. The interests of the other couple were acquired in September 1997 and thereafter the property remained in the names of the deceased and the appellant as tenants in common, with 7/12th and 5/12th interests respectively.
26 In February 1998 the deceased established a company known as 3Weeds Hotel Pty Ltd of which he and the appellant were directors and shareholders. At the time of his death, he and a family company in his name held the bulk of the shares, with the remaining 12.5% being held by the appellant.
27 The third property in which they were involved was the flat at Zetland. Through arrangements made by the deceased, half the rental payments on the Zetland flat were debited to the company loan account in the name of the appellant.
28 These matters demonstrated an unequivocal financial and property inter-relationship. However, the significance of that inter-relationship, by the time of the deceased's death, was complicated by a step which had been taken by him to obtain from the appellant her interest in the company which ran the hotel. On 25 July 2006 the deceased had arranged for the stamping of a share transfer form, signed by the appellant as transferor and by him as transferee, for her shareholding in the company at a consideration identified as $6.40 per share. That would have involved a payment to her of $400,000. The payment was not made, nor was the share transfer registered before his death. Further, his Honour accepted that the agreement between the deceased and the appellant was that the consideration for the share transfer included not only the cash component, but also the transfer to the appellant of the deceased's interest in the Redfern property. There was no evidence that any steps had been taken to effectuate the property transfer, nor did the evidence demonstrate any current capability of the deceased in July 2006 to pay the cash component.
29 The significance of the financial arrangements was a matter of contention during the trial. The appellant gave evidence that the purpose of the transfer was to facilitate finance for the development of the hotel. She also stated that the appellant had been angry with her in respect of breaches of the licence arising from the presence of underage drinkers on the premises. There was evidence of a prosecution for two offences arising from an incident on 29 April 2006.
30 Although the deceased held the substantial majority shareholding in the company operating the hotel, it was jointly run by the deceased and the appellant, with both working long hours at the hotel. The evidence with respect to the share transfer was not accompanied by evidence suggesting that the managerial arrangements in respect of the business were likely to change. She was still running the hotel after the death of the deceased.
31 In summarising the various aspects of the relationship, his Honour stated at 38:
"There is no evidence of any intermixing of money or assets. Redfern was a business investment held in different shares; there is no evidence of joint bank accounts. Against this, however, it must be accepted that the parties, to a large extent, lived out of the hotel."
32 With respect, the joint business arrangements and the sharing of an investment property demonstrated a degree of financial inter-dependence of a kind which is relevant to the existence of a de facto relationship. Together with the maintenance of a common residence and a sexual relationship, the existence of joint ownership of property and financial inter-dependence are significant factors in supporting the existence of a de facto relationship. No doubt the arrangement by the deceased for the execution by the appellant of a share transfer demonstrated an intention on his part to unwind their financial inter-dependence. However, in the absence of any evidence that he had taken steps to provide the agreed consideration for the transfer, the significance of the executed share transfer must remain equivocal.
(d) performance of household duties
33 The appellant and the deceased, during the period of their relationship, were not involved in raising a family. The appellant's daughter gave evidence of meeting the deceased in March 2000. (It appears that she had left home before 1993.) The deceased's children were younger, being born in 1983 and 1984 respectively. After their parents' separation in 1990, they lived with their mother, Rita Quijarro.
34 So far as household duties were concerned, his Honour accepted that the deceased had a long-standing relationship with another woman, Mrs O'Brien, who did his laundry. His Honour made the following further findings at 38:
"The [appellant] did not perform household tasks to the extent she originally alleged. At least while the deceased's children were at the hotel, she prepared only a few meals; she did not do the laundry as she originally alleged; she certainly did not look after the deceased's bedroom at Zetland. Nevertheless I accept that the defendant did carry out the general cleaning in the licensee's accommodation in the hotel."
35 Curiously, there was no specific finding in relation to the household tasks undertaken by the deceased. To the extent that there was no evidence that the deceased undertook cleaning or other household duties, no inference appears to have been drawn that there was a lack of commitment to a shared family life. The failure of the female partner to demonstrate that she undertook the bulk of the household duties should not be treated as demonstrating that the parties did not "live together as a couple", in the language of s 4(1)(a).
(e) the reputation and public aspects of the relationship
36 Where two people share both a domestic and a business or professional life, it may well be understandable if they (or one or other of them) seeks to present in the course of the work life, an appearance of distance which does not reflect their domestic relationship. In affidavit evidence, the appellant stated:
"Over the years, in discussions between myself and Luis, I said to him words to the effect: 'I do not like being referred to as a de-facto. I would like to regard each other as business partners and life partners.' Luis agreed and we would commonly refer to each other as 'partners'. I was circumspect about our private relationship during business times, but Luis was sometimes less reticent."
37 There was a degree of inconsistency, which may have reflected partiality, in the evidence of the witnesses. His Honour accepted the evidence of the respondents that they did not see their father demonstrate affection towards to the appellant, but treated the evidence as not being "of much significance": at [15]. In respect of the evidence of Ms Leidy Quijarro, his Honour noted at [16]:
"After 2001 she said that she only saw her father about once every six months and never with any woman. She said that at the visit to Zetland after her father died the [appellant] said, 'Luis and I were not a couple. We were only business partners.' But in cross-examination she agreed that the [appellant] said as well 'This was Luis' and my home. No one else was allowed in. This was our private sanctuary away from the hotel.'"
38 Mr Mawhinney, an insurance broker, gave evidence of his knowledge of the appellant and the deceased, having been introduced to the appellant by the deceased in late 1997 or early 1998. Amongst other things he said:
"My relationship with Luis and Merryl was not only business and on numerous occasions I had the opportunity to dine with them at various restaurants. On these occasions they always appeared to be affectionate towards each other. I often heard Luis and Merryl referring to each other using words of affection such as 'love' or 'darling'."
39 The appellant's daughter, an information technology consultant in Victoria, gave evidence of her observations of the deceased and the appellant together. She described the deceased as having "always treated" her mother as a "trusted and cared-for close personal friend and confidant" and as seeing her mother treat the deceased "with care and affection". Mr Power, a real estate sales consultant, gave evidence of having known the deceased from approximately 1995 and having been introduced to the appellant in late 2004. Mr Power said the deceased described the appellant to him and his wife as the deceased's "partner … in business with me", and as having said, "I'm lucky, I've found the best woman". Following several visits to the hotel over the period from 2005 to 2006 he stated:
"On my visits to the hotel I observed Luis and Merryl being affectionate to one another. This further supported my belief that they were a couple. Luis often referred to Merryl as 'my partner'. I observed that Luis did not treat Merryl as an employee. I observed that Merryl also treated Luis with affection. I observed them speaking intimately together."
40 Mr Ajbschitz, a fashion sales consultant, gave evidence of having known the deceased since early 1998 and, through him, having met the appellant when the deceased took over the hotel. He described the deceased introducing the appellant to him as "my wife Merryl" and as having told him in the middle of 2006, "she's the best wife in the world and I couldn't live without her". In late 2005, he asked the deceased how long he had known the appellant and was told that "we have been together close to 12 years, she is the best thing that ever happened to me in my life". He further stated:
"When Luis referred to Merryl he would call her 'my dear' or 'darling' or just 'Merryl'. I observed the way that Luis treated Merryl and would describe it as the way one would treat a lover, that is he was outwardly affectionate to her, caring and consideration."
41 Mr Rennie, a property valuer, gave evidence of having been introduced to the appellant by the deceased in early 2000. He stated:
"From the late 1990s up until Luis' death in late 2006 I would often meet with Merryl at the hotel. …
I remember that while Merryl was not always at the hotel with Luis, as she had commitments outside the hotel, when Luis and I discussed how Merryl was he always spoke of her with affection.
I never asked personal questions of either Luis or Merryl …. Even before they lived together, I knew Luis would often stay at Merryl's house because he would say words to the best of my memory …:
"I need to get away from the pub I'm staying with Merryl.'
From my observation Luis always appeared kind, respectful and affectionate to Merryl and Merryl was always very softly spoken and reserved with Luis."
42 A property manager from Woollahra, Ms Chudyba, had worked at a bar in the hotel from July-September 2005. She described the deceased referring to the appellant as "his soul mate" and "as the love of his life". She gave evidence of them displaying affection to each other whilst remaining professional and of the appellant being attentive to the deceased in a supportive way. She stated:
"At the hotel, I also saw that they often shared meals together. I also saw them hug one another and it appeared to me that they appeared very happy in each other's company.
…
In my conversations with Luis when he would occasionally refer to his place of residence, when he did this he would use words such as 'their home'. I interpreted this as meaning Merryl's and his home where they lived together. If Merryl was not at the pub he would say 'She's at our home' or 'She's at the University working'."
43 On the other hand, there was evidence from Mr Bray, a real estate agent, Mr Sweetapple, a builder introduced to the deceased by Mr Bray and the deceased's accountant, Mr Coulcher. They all gave evidence that the deceased was unhappy with the appellant's role in his life and that they had never seen outward displays of affection between the two. Their evidence in this regard is set out in some detail by his Honour at [23]-[30]. In relation to these competing descriptions of the relationship, his Honour made the remarks at [36] set out at [15] above.
44 A number of the witnesses were cross-examined, but a number were not. In these circumstances, it was necessary for his Honour to make findings as to the "reputation" and the "public aspects" of the relationship. In that context, it may be important to distinguish between observations of the parties to the relationship in public, and statements made by one or other of the parties to friends, family members or acquaintances. The latter are more likely to be relevant to the degree of mutual commitment to a shared life, and will be discussed in that context below.
45 No doubt the deceased and the appellant did not always act consistently in public. In particular, they may have been more relaxed in some situations and with some people than in other circumstances. Nevertheless, there was a body of evidence which supported the appellant's case that people who saw them in public either believed that they were married (as in the case of Mr Ajbschitz) or noted that they behaved as if they were a couple, by demonstrating affection or attentiveness to each other. In the end, such evidence may be of limited assistance because of the time at which it occurred, the limited opportunities for observation, or the possibility of misinterpretation. Nevertheless, conduct may speak at least as volubly as words to the nature of a relationship. It will generally be of some importance. Evidence should not be disregarded merely because the witnesses are not cross-examined.
(f) degree of mutual commitment to a shared life
46 The final factor which requires separate consideration is the extent to which the appellant and the deceased had a mutual commitment to a shared life at the time of the death of the deceased. To an extent, the objective circumstances relevant to this question have already be canvassed. The relevant evidence included: