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[2020] VSCA 230
General information, not legal advice.
Court of Appeal (Vic)
2020-09-08
Mr P, Tate JA, Kaye JA, Emerton JA
Original judgment source is linked above.
[2019] VCC 1764 (Judge Misso)
SUCCESSION LAW - Appeal - Whether respondent 'eligible person' and entitled to claim family provision under pt 4 of Administration and Probate Act 1958 - Whether respondent would have been able to take proceedings under the (Cth) - Whether principal asset of estate acquired after end of relationship - No error by judge in finding respondent an 'eligible person' - Whether genuine domestic partnership - Whether judge failed to accord sufficient weight to respondent's receipt of single person pension since 1997 - No misapplication of - Whether judge erred in ordering applicant's costs be paid out of estate in priority to respondent's - No attempt by applicant to demonstrate error in the exercise of discretion - Leave to appeal refused - ; ; ; ; ; applied; , (3), (3), , , ; ; (Cth) , , , , .
1 In July 2018, the respondent ('Milica'), commenced a proceeding in the County Court of Victoria seeking an order under s 91 of the Administration and Probate Act 1958 (the 'Act') that adequate provision be made for her out of the estate of Slobodan Stanojevic, known as 'Stan'. Milica claimed to have been Stan's de facto wife for almost 40 years up until late 2016, although she conceded that in later years the relationship was 'on and off'. Milica was not living with Stan at the time of his death on 23 February 2018, and each had taken out an intervention order against the other in the preceding 18 months.
2 In his will, Stan left nothing to Milica and nearly all of his estate to his brother, who is the applicant for leave to appeal. The estate consisted principally of a residential property at 51 King Edward Avenue, Albion. The applicant was the defendant at trial, sued in his capacity as executor of the will and trustee of the estate.
3 Stan had inherited the property at 51 King Edward Avenue from his mother, Latinka Stanojevic ('Latinka'), who died on 5 January 2016 leaving the whole of her estate to her two sons, Stan and the applicant, in equal shares. On 11 May 2017, Stan became the registered proprietor of 51 King Edward Avenue, while the applicant received the property next door at 49 King Edward Avenue.
4 At trial, Milica claimed to be an 'eligible person' under s 90(e) of the Act as Stan's former domestic partner who, at the time of his death, could have taken proceedings under the Family Law Act 1975 (Cth), but was prevented from doing so by his death.
5 The applicant contended that Milica and Stan were not in a genuine domestic partnership at all, or at least not during the 16 years preceding Stan's death. This, the applicant submitted, was demonstrated by the fact that Milica had been in receipt of a disability pension as a single person since 1997. Furthermore, for a number of years, Milica held a lease on Housing Commission premises at 5/23 Power Street, Hawthorn (the 'Hawthorn premises'). The existence of the pension and the lease on the Hawthorn premises were not disputed by Milica.
6 Following a trial over three days, the primary judge concluded that Milica was entitled to provision out of Stan's estate on the basis that she was an 'eligible person' as a former domestic partner of Stan and ordered that provision be made for her out of Stan's estate in the amount of $550,000.[1] The judge further ordered that the costs of both parties be paid out of the estate on a standard basis, with Milica's costs to be paid in priority to those of the applicant.
7 Section 90A of the Act allows an eligible person to apply to the Court for family provision from the estate of a deceased person, and s 91A permits the Court to make such provision if satisfied, relevantly, that: the applicant is an eligible person; at the time of death, the deceased person had a moral duty to provide for the eligible person's maintenance and support; and the distribution of the estate failed to make such provision.
8 Section 90 of the Act defines an 'eligible person' to include:
(e) a former spouse or former domestic partner of the deceased if the person, at the time of the deceased's death -
(i) would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and
(ii) has either -
(A) not taken those proceedings; or
(B) commenced but not finalised those proceedings; and
(iii) is now prevented from taking or finalising those proceedings because of the death of the deceased.
9 The Act defines a 'domestic partner' to include an 'unregistered domestic partner',[2] being a person who, although not married to the person who has died -
(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
(b) either -
(i) had lived with the person in that manner continuously for a period of at least two 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.[3]
10 Section 3(3) provides that for the purposes of the definition of 'unregistered domestic partner', in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in s 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
11 Section 35(2) of the Relationships Act provides:
(2) In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case -
(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.
12 Milica swore two affidavits in the proceeding[4] and was cross-examined. Some of her evidence was controversial; some of it was not.
13 It was uncontroversial that Milica and Stan were both born in the former Yugoslavia and come to Australia separately in the early 1970s. They met in Sydney in 1977. They soon moved in together. Stan had a son named Radovan who was living with his mother in Serbia. Milica had just separated from her first husband with whom she had a daughter, Natali, born in January 1974. In August 1980, Milica and Stan had a son, Milovan Stanojevic, known as Michael.[5]
14 Milica's evidence about her relationship with Stan was to the following effect.
15 In the early 1980s, Stan, Milica and the two children, Natali and Michael, relocated from Sydney to Melbourne, moving in with Stan's mother and father at 51 King Edward Avenue. They purchased a property nearby in Ridley Street, using monies that Milica had received as compensation for injuries sustained in a car accident and from compensation that Stan had received after a workplace accident. The Ridley Street property was rented out. It was sold in 1985 to pay off Stan's gambling debts.
16 In 1984, Milica, Stan, Natali and Michael moved to Serbia, where they remained until 1987. Stan's son Radovan came to live with them while they were there.
17 When the family returned to Melbourne in 1987, they lived at 51 King Edward Avenue, as well as in a flat for a while. In 1989, they purchased a property at Boreham Street, Sunshine, but had returned to live at 51 King Edward Avenue by 1991. They lost the Boreham Street property in 1994 as a result of Stan's gambling.
18 Throughout this time, Milica worked in a variety of jobs, including in the cafeteria and the ironing department at the Royal Melbourne Hospital. Milica was made redundant by the Royal Melbourne Hospital in around 1991 or 1992 and received a payout of approximately $20,000, with which she and Stan purchased a milk bar. This was sold in 1994 or 1995 for approximately the amount that they had paid for it, and the proceeds were used to buy a flower shop, which was unsuccessful. Thereafter, Milica worked in cleaning jobs and sold clothes and food products at markets. The money that she made went towards food and expenses at home. Some of her money also went into renovations to 51 King Edward Avenue.
19 Milica gave evidence that Stan drank and gambled heavily and was sometimes violent. She said that she separated from Stan in the early 1990s because of his alcohol problems and violence, as well as their ruined finances. She and Stan established separate bank accounts and she obtained the Hawthorn premises. However, Milica stated that she returned to 51 King Edward Avenue almost immediately. She said:
We resumed our relationship and lived together again soon after the separation. However, I avoided establishing a joint bank account again as I wanted more control over the money I made and I retained the housing commission house so I or Michael or Natali had somewhere we could go if Stan became violent again. I retained housing commission housing for approximately six years, however I was rarely there and Natali, Michael and even on occasion the [applicant in the appeal] Milovan utilised the housing commission house. If I went there Stan would come around and tell me to come home which I would do, or I would return if I thought that Stan had calmed down.
20 According to Milica, Stan continued to be violent, gamble and consume excessive amounts of alcohol. Throughout their relationship, she repeatedly left him to escape his violence, but always returned. When Natali or Michael had independent lodgings she sometimes stayed with them, but Stan would come to find her and tell her to come home or she would return, having given Stan time to calm down.
21 Milica gave evidence as to her financial contribution to the household and to renovations at 51 King Edward Avenue as well as to the domestic work that she carried out. She deposed to caring for Stan's mother, Latinka, when Latinka was unwell, helping her with showering, providing meals and taking her shopping.
22 Milica gave evidence that in late 2016, she and Stan had an argument during which he threatened to kill her. On 27 November 2016, the police applied for an intervention order on her behalf and an interim order was made on 28 November 2016. Stan was required to leave 51 King Edward Avenue by February 2017 and he moved in with the applicant next door at 49 King Edward Avenue. However, when the final intervention order was made, one of its terms was that Milica vacate 51 King Edward Avenue by 3 October 2017. When she returned to collect her belongings, Stan called the police and applied for an intervention order against her. On 22 November 2017, Stan obtained a final intervention order against her. She did not live with Stan again.
23 Not surprisingly, Milica was extensively cross-examined about her pension and the lease of the Hawthorn premises. A letter from Centrelink dated 9 September 2019 and an attached Centrelink Customer Record for Milica were produced which sets out various dates recorded next to various addresses. It lists a number of different addresses attributed to Milica between July 1999 and December 2017. The addresses include 51 King Edward Avenue, but only for two short periods: from April 2000 to January 2001; and from 26 September 2016 to 22 December 2017 (broadly the period after Milica and Stan had separated and before Milica, herself, was required to vacate the property). In contrast, the Customer Record records the Hawthorn premises as Milica's address for over 10 years from 7 April 2005 to 2 December 2015 and, again, from 3 December 2015 to 26 September 2016 (in substance, from April 2005 until Stan and Milica separated in September 2016). The Customer Record lists a number of other address about which there was no evidence.
24 When the dates and addresses were put to Milica, she gave rather confused evidence (dealt with in more detail below), but maintained that she stayed at 51 King Edward Avenue 'on and off' for more than 20 years. She agreed that she also received rent assistance for the Hawthorn premises while she was living at 51 King Edward Avenue. The cross-examination continued:
Q: So you were getting both rent assistance and a single person's pension for the entire 20 years that you say you were living with Stan, in your first affidavit?
A: Of course.
25 Milica was also taken to the Family Violence Protection Act 2008 application dated 23 January 2017, in which she was named as the person seeking protection and in which it was recorded that she and Stan are 'ex-partners having been separated for 16 years'. She told the court that this statement was 'wrong'. She said she had not had sex with Stan for 16 years, but they had still been 'on and off together' and sleeping in the same bed.
26 It is fair to say that Milica's answers in cross-examination were often non-responsive and aggressive, and many lacked cogency. There were marked inconsistencies in her evidence. For example, although Milica agreed that she received a single person's pension while she was in a de facto relationship with Stan, she insisted that she did not tell lies to Centrelink. Her evidence as to whether she received the pension while she was working was internally inconsistent and inconsistent with the documentary evidence.
27 Natali Riboskic gave evidence about the nature and longevity of Milica's relationship with Stan, as did four family friends, who gave evidence supporting Milica's claim that she had lived with Stan as man and wife for many years up until late 2016, largely at 51 King Edward Avenue. The witnesses gave evidence by affidavit and each was cross-examined.
28 Natali Riboskic gave evidence that she lived with her mother and Stan, initially in Sydney, and that they moved to 51 King Edward Avenue in Melbourne in 1980 and then to Serbia in 1984. When Milica, Stan and Michael moved back to Melbourne in 1987, she stayed in Serbia for two years to finish her schooling but moved back to Melbourne and lived at 51 King Edward Avenue with her mother and Stan thereafter. She would leave home from time to time to live with her partners and lived for a short time in the Hawthorn premises, but otherwise she lived with Stan, her mother and Michael for most of her life.
29 Natali gave evidence that her mother and Stan lived as de facto husband and wife from when she was a child until 2016 or 2017, when they finally separated. They slept together in their own bedroom and she and Michael each had separate bedrooms. Her mother worked up until the 2000s and Stan and Michael worked together in a painting business. Her mother did most of the cooking, cleaning, gardening and housework, and paid the bills.
30 Natali stated that throughout his life, Stan told everyone they knew that she was his daughter. She called Stan 'Dad' and he called her 'Nat'. They did dancing lessons together.
31 However, Natali also stated that her mother was living 'in a violent situation' with Stan, who often yelled at her. She witnessed Stan physically assault her mother. Although as Natali and Michael became older they stood up to Stan and he backed off from the physical violence, Natali stated that she saw Stan abuse her brother. Michael had to attend hospital on a number of occasions because of the physical violence inflicted by Stan. Milica would become so fed up with Stan's behaviour that she would leave him.
32 Natali deposed that when her mother had a fight with Stan, she would go to the Hawthorn premises. Stan would then go to the flat and tell her to come back home, which she did. Natali and Michael also used the flat to get away from Stan from time to time.
33 Vidoslava Grujin ('Vida') gave evidence that she knew both Milica and Stan for approximately 33 years, during which time she was a constant visitor at their home at 51 King Edward Avenue. When she first met them they ran a restaurant called 'Little America' in Spotswood where they served traditional Serbian food and provided Serbian entertainment. Stan and Milica were also regulars at the hotel that she owned in Fitzroy.
34 Vida stated that she regularly visited Milica at 51 King Edward Avenue between 1991 and 2016. She saw Milica doing the housework and working in the garden. When Vida opened a coffee shop in Footscray, Milica would come to help when needed, sometimes with Michael. Michael and her son were friends and the four of them would often have lunch together. Her son would often sleep over at Milica's house overnight. She would often deliver food from the coffee shop to 51 King Edward Avenue.
35 In around 1993, Vida purchased a restaurant in Lygon Street, Carlton, and she asked Milica to help her in the kitchen. Stan would also come and listen to music and have food after he finished work. After closing, they would share leftover food and have drinks. Stan would become affectionate towards Milica once he had had a few drinks, hugging her and kissing her on the cheek.
36 Vida gave evidence that between 2005 and 2016 she was constantly in Milica's home. She would go to the bedroom where Stan was and see that Milica had obviously just got out of the bed. She also used Milica and Stan's ensuite shower at one stage because of renovations in her own home. She saw Milica's and Stan's clothes in the wardrobe and thrown around their bedroom. She also saw Stan and Milica in bed together and had breakfast with them. Things deteriorated, and in 2013 and 2014, she saw Michael and Stan fighting, as well as Stan and Milica fighting more.
37 A neighbour, Sally Roach, gave evidence that she knew Stan and Milica for approximately 23 years, from the time she was in primary school. She was friends with Michael, as well as with the applicant's daughter. She was a constant visitor to 51 King Edward Avenue from her late teens until Stan forced Milica to leave (in 2017). She stated that it was obvious to her that Milica, Stan, Michael and Natali were a family and all lived together at 51 King Edward Avenue. Milica was always cleaning, washing and cooking and would offer the children food and drinks and ask them to do jobs around the house and pay them a bit of money for doing those jobs. She was there when Milica left 51 King Edward Avenue in 2017. She helped Milica to remove some of her belongings and clean the place. She gave Milica and Michael food and money to help them out.
38 Emil Olar ('Emil') gave evidence that he had known both Milica and Stan for approximately 30 years, and that they lived together at 51 King Edward Avenue for most of that time. They acted like a couple, with Milica undertaking the cooking and serving on visits and Stan referring to her as his wife. When he and his wife visited 51 King Edward Avenue it was usually Milica who did the cooking and Stan would be mainly sitting and talking while Milica served the guests. If he visited during the week he saw that Stan might come home and have a shower and Milica would have a warm dinner ready for him. They both often talked about their son Michael and Natali, to whom Stan referred as his daughter.
39 In the 30 years that Emil knew them, Stan and Milica interacted in the usual way for a couple, asking each other for help or talking with guests together. They went to restaurants and clubs together. Whenever he bumped into them at the shopping centre he would ask how the family was and they would give him their news. He saw that while they were a couple there were definitely problems in the relationship, but he did not go into that too much. He was aware that Milica had obtained a Housing Commission flat.
40 Metodija Stoimenvoski ('Metodija') gave evidence that he was a close friend of both Stan and Milica for approximately 20 years. During that time, he observed that Stan and Milica resided together at 51 King Edward Avenue. They acted like a couple, with Milica cooking for and serving visitors and Stan referring to her as his 'wife'. They both often talked about Michael and Natali, to whom Stan referred as his daughter.
41 Metodija was a regular customer at the Little America restaurant, where he would see Stan and Milica. As a carpenter by trade, Metodija undertook renovations at 49 and 51 King Edward Avenue, since he knew the family. He observed Milica looking after Latinka. He observed Stan going on holidays overseas and leaving Milica and Michael to care for the property and to pay for the bills and the renovations. Metodija observed discord in the relationship. If Milica tried to say something, Stan would become angry and beat her. He saw Stan beat Milica on many occasions. He saw Stan hit Michael on the head with a hammer.
42 Tonci Bartulovic ('Tonci') gave evidence that he knew Stan and Milica for approximately 17 years and he visited them maybe two or three times a year at 51 King Edward Avenue between 2001 and 2016. They separated from time to time, continuously, during that period. He sometimes saw Milica in her pyjamas when he arrived there and she would go and change into her day clothes. When he visited, Milica was always cooking and preparing food and would run around offering food and drinks. She would clean up, collecting dishes and leftovers.
I witnessed Stan and Milica together with Michael and Natali living at 51 King Edward Avenue, for the entire time I have known them; that is for 17 years, ending in late 2016/early 2017. Natali had short periods when she was not there, but she was mostly there too. Stan and Milica behaved like husband and wife during all those 17 years when I was with them, either visiting or them visiting me, with Milica doing most of the domestic work such as cooking and cleaning which she did when I visited and Stan more involved in painting.
Stan and Milica came to my place as a couple, bringing food and drinks, throughout those seventeen years up until late 2016/early 2017.
44 Tonci gave evidence that on one occasion he saw Milica and Michael at the shopping centre and they told him that they did not have money for shopping because Stan had taken it. He gave them $400. He was aware that Milica had obtained a Housing Commission flat and of her explanation for why she kept it.
45 Petre Nicoloski ('Petre') gave evidence that he met Stan and Milica in 2000. He first met Stan when he was looking for a painter and went to 51 King Edward Avenue to meet him. Milica came out and Stan introduced her as his wife. Thereafter he would sometimes see them at the delicatessen and fruit market shopping together.
46 However, Petre had difficulty taking the oath and the judge gave his evidence no weight.
47 For his part, the applicant made two affidavits[6] and gave evidence at the trial. He denied that Milica was Stan's domestic partner, stating that the pair were in an 'on again/off again' relationship. At trial, the applicant initially contended that Milica and Stan had not lived together for many years. He later conceded that they had lived together in Sunshine until 1994 and that they had lived together with Michael and Natali 'on and off'. The applicant gave evidence that he had never seen Milica at 51 King Edward Avenue, and that Milica lived at the Hawthorn premises and had done so for 20 years.
48 The applicant stated that Stan was neither a heavy drinker nor a gambler, although he said that Stan 'did like to have a drink'. He denied that Stan was ever violent.
49 In his first affidavit, the applicant stated that Michael was not the son of Milica and Stan, but the son of Stan and Stan's first wife. However, he conceded in cross-examination that Milica was Michael's mother. He said that on Michael's death in 2018, he paid for and organised the funeral, as Stan was in ill-health.
50 The applicant gave evidence that Latinka did not live with Stan, Milica, Natali and Michael at 51 King Edward Avenue as Milica contended. The applicant also submitted that Milica could not have provided care to Latinka when she was unwell between 2000 and 2015, as Latinka only returned from living in Europe in 2008. The applicant deposed that he lived with his mother at 49 King Edward Avenue from 2008 until her death in 2016.
51 After setting out the details of the parties and the estate, the judge made a number of observations about Milica's evidence.[7] He found that when called to give evidence, Milica understood the oath that was administered, and he was satisfied that she understood that she was being asked to consider whether the contents of her affidavits were true and correct.[8] However, he considered that Milica's evidence 'took a turn for the worst when she was cross-examined', and that she persistently gave obtuse and non-responsive answers during cross-examination'.[9] After emphasising the difficulty that this created, the judge resolved to 'deal with Milica's evidence by only accepting her evidence where it is otherwise corroborated by other creditworthy and reliable evidence'.[10]
52 In respect of the factual conflicts, the judge set out Milica's evidence as to her background and relationship with Stan.[11] He found that in cross-examination, Milica gave evidence which cast some doubt on whether there was a subsisting domestic partnership.[12] The judge recorded the applicant's submission that the Centrelink Customer Record attached to the Centrelink letter of 9 September 2019 was an accurate record of where Milica lived at the relevant times and, in particular, that Milica lived at the Hawthorn premises from 7 April 2005 to 2 December 2015.[13] However, the judge was not prepared to give the contents of the record the weight contended for by the applicant as, in the judge's view, the record might refer to mailing addresses and not residential addresses.[14]
53 The judge also stated that although Milica admitted that she had lived at the Hawthorn premises, 'on and off', he 'found it difficult to determine when she took out the lease, why she took it out, how often she resided at that address, and how she managed to meet the rent and outgoings associated with that residence'.[15] His Honour set out the facts that potentially undermined Milica's case that she was in a domestic partnership with Stan at all or for as long as she asserted, as follows:
54 The judge referred to the evidence given by others, including Natali, Metodija, Vida, and Emil. The judge also referred to evidence given by Petre, although he stated that he was not confident that he could accept Petre's evidence due to his inability to take the oath effectively and his manner.[17]
55 The judge found that the evidence raised the following issues:
56 The judge concluded that he was 'singularly unimpressed by the manner in which Milica gave her evidence' but that his impression of her did not mean that he rejected all of her evidence.[19] He found there was 'a thread of truth' in Milica's evidence as to how she met Stan and that they entered into a genuine domestic partnership, a conclusion strengthened by the evidence of Natali, but, in particular, by the evidence of Metodija, Vida and Emil.[20]
57 The judge was satisfied that there was no significant challenge to Milica's evidence that she met Stan in Sydney, and that they had 'some semblance of a relationship, and certainly of sufficient quality for them to have had a child (Michael)'.[21] The judge described the challenge to the evidence of Metodija, Vida and Emil as being 'a very broad one' as to their knowledge of Milica and Stan. He noted that it was put to each of them that they were not telling the truth and that each denied that proposition.[22] The judge accepted their evidence that they had a reasonably intimate knowledge of the lives of Milica and Stan and that they visited Milica and Stan at 51 King Edward Avenue and observed them to live as if in a domestic partnership.[23] The judge concluded that he preferred the evidence of Natali, Metodija, Vida and Emil that 'Milica and Stan were in some measure of a relationship from 1977, and probably a genuine domestic partnership, through to September 2016'.[24]
58 The applicant's notice of appeal raises six proposed grounds of appeal:
Ground 1
The Learned Judge erred in finding that [the respondent] was an eligible person within the meaning of s 90(1) of [the Act]. It being a former domestic partnership... The ... Judge erred by failing to take into account that the de facto relationship, if there was one, had come to an end by November 2016, ending their shared matrimonial life.
Ground 2
The Learned Judge erred in concluding that on the evidence:
(a) there was a degree of mutual commitment to a shared life;
(b) the domestic relationship was a long one, extending from 1977 and potentially to September 2016;
(c) there was a level of financial interdependence;
(d) [the respondent] and the deceased cared for and supported Natali and Michael as the children of their household;
(e) they gave Metodija, Vidoslava and Emil the impression of having a reputation of man and wife.
Ground 3
The Learned Judge erred in not properly applying the tests as set out in s 35(2) of the Relationships Act 2008.
Ground 4
The Learned Judge erred in finding that provision should be made for [the respondent] where the property in the deceased's Estate was acquired after the relationship, on His Honour's finding, had come to an end. And not taking into account the Family Law Act 1975 should have been taken into account [sic] especially s 79(4), s 75(2), s 90SM(4) and s 90SF(3), which has the effect that after acquired property is not property of the relationship.
Ground 5
The Learned Trial Judge erred in ignoring the evidence of [the respondent] or not giving sufficient weight to the evidence of [the respondent] that:
(a) she had received the maximum rate of disability support pension with no children on a single person's pension since 25 December 1997 and continuing; ...
(b) and that since 25 December 1997, there had been no changes to the rate of payment due to any income declaration from her and was based on CPI increases;
(c) further, in answer to the question 'if you've been receiving a single person's pension since 25 December 1997, you can't have been in a relationship with Stan at the same time, can you?' [the respondent] answered, 'Yeah. Been on and off'...;
(d) [the respondent] received the pension at various addresses from 1999;
(e) she agreed she had been receiving a single person's pension since 25 December 1997...;
(f) ... When the addresses where she received the pension were added up she had only been living at King Edward Avenue, the address of the deceased, for one year. She then said she had stayed in King Edward Avenue on and off for more than 20 years... And she agreed that she had been getting both rent assistance and a single person's pension for 20 years at the same time she said she was living with Stan ...
(g) she also said that she had been working while she received the pension...
Ground 6
The learned judge erred in ordering that the payment of [the respondent's] costs be in priority to the [applicant's].
59 Proposed grounds 2 and 5 are related, in that they challenge the judge's factual findings having regard to the weight given to certain evidence, especially the evidence that Milica held herself out to be a single person in order to qualify for a disability pension and a Housing Commission flat; grounds 1 and 4 are also related in that they concern, on their face, whether Milica could qualify as an 'eligible person' for the purposes of the Act in respect of property acquired by Stan after the termination of the relationship. Ground 3 concerns the manner in which the criteria in s 35(2) of the Relationships Act were applied, which is closely related to the evidentiary questions in grounds 2 and 5.
60 It is convenient to consider the grounds of appeal under two headings: whether the judge erred in holding that Milica was an 'eligible person' for the purposes of a grant of family provision under pt 4 of the Act; and whether the judge's evidentiary finding that Milica and Stan were in a genuine domestic partnership until late 2016 was in error.
Was Milica an 'eligible person'? Grounds 1 and 4
61 Section 90(e) of the Act provides that an 'eligible person' includes a former domestic partner who, at the time of the death of the deceased, would have been able to take proceedings under the Family Law Act, has not taken those proceedings and is prevented by the death of the deceased from taking those proceedings.
62 The applicant gives two reasons why he says Milica was not eligible to claim provision under the Act:
(a) Stan acquired the property after the relationship with Milica had ended; and
(b) Milica was not prevented by Stan's death from bringing proceedings under the Family Law Act, but by legal advice that she received not to pursue a claim.
Was the property 'after-acquired' and therefore excluded?
63 The applicant's first reason why Milica was not an 'eligible person' is founded on the factual premise that the parties separated in September or November 2016 and the sole (or principal) asset of his estate, 51 King Edward Avenue, was acquired by Stan on 11 May 2017.
64 The applicant submits that while the judge found Milica was an eligible person as a former domestic partner of the deceased pursuant to s 90(e) of the Act, he did not take the further steps of determining whether or not, at the time of Stan's death, she would have been able to take proceedings under the Family Law Act, that she had not taken those proceedings, and was prevented from doing so by Stan's death.[25]
65 According to the applicant, ss 79(4), 75(2), 90SM(4) and 90SF(3) of the Family Law Act set out what should be taken into account in property settlement proceedings: the acquisition of property;[26] the contributions made by the parties to the relationship;[27] and the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.[28] In this case, the only asset of the deceased was the house which was bequeathed to him by his mother after the relationship with Milica had come to an end.
66 The applicant relies on the statement in Re Adams,[29] that divorce ends and, perhaps most importantly, is intended by the spouses to end, their shared matrimonial life.[30] After the divorce, the spouses return to their separate lives. In this case, the applicant contends, at the end of their relationship (whether that occurred in 2016 or earlier), Stan and Milica returned to their individual lives and Stan therefore had no responsibility under the Family Law Act to make provision for Milica.
67 As for the exclusion of after-acquired property from a distribution under the Family Law Act, the applicant relies on Moore v Moore[31] and In the marriage of Pickard.[32]
68 It follows, according to the applicant, that the Family Court would not have made an order in favour of Milica, and she decided not to make an application.
69 Milica submits that the contention that she would not have been able to take proceedings under the Family Law Act in respect of 51 King Edward Avenue because that property did not form part of Stan's assets until after his relationship with Milica had ended is misconceived. In proceedings under the Family Law Act, the Family Court may make an order in respect of property acquired after separation.[33]
70 We agree that the applicant's submission misunderstands the operation of the Family Law Act.
71 The power to make a distribution in respect of after-acquired property is discretionary. In Calvin & McTier[34] the Full Court of the Family Court approved the following statement by Finn J in Farmer and Bramley:
First an issue has arisen in this appeal as to whether an entitlement based on contributions made to the welfare of the family can only be satisfied out of property available to the parties at the time the contribution was made. In my view, there is nothing in s 79(4)(c) or indeed else in the Act, or in the authorities to date, which would justify such a limitation. Again in my view, if such a limitation were to be applied in any particular case, its justification would have to be found in the generally worded limitation in s 79(2) that a court shall not make an order under s 79 'unless it is satisfied that in all the circumstances it is just and equitable to make the order'.[35]
72 Moore v Moore,[36] upon which the applicant purported to rely, is not authority for the proposition that no claim can be made under the Family Law Act in respect of after-acquired property. To the contrary, the court observed, in respect of a claim under s 79 of the Family Law Act, that there was at the outset no formal quarantining or differentiation between pre-marriage, after-acquired or any other category of separate property, and cited the Full Court of the Family Court in Carter and Carter:
Section 79 is not concerned with matrimonial property. It is, as set out in subs (1), concerned with 'proceedings with respect to the property of the parties to a marriage or either of them'. The preferable approach then is to determine what property is owned by the parties jointly or individually and then, after considering the matters set out in subs (2) and (4) of s 79, to make a determination as to what alteration (if any) of the interests of the parties in those assets must be made in order to do financial justice between them.
...
Section 79(1) is quite clear. It refers to applications as to the property of the parties to the marriage or either of them. It does not differentiate as to when or how the property was acquired or which of the parties owns that property. The section proceeds that the Court may make such order as it thinks fit altering the interests of the parties 'in the property including an order for settlement of property'. Again, there is no differentiation as to when or how the property was acquired or which of the parties owns that property.
Any property of either party or their joint property can therefore be dealt with by the Court. No part of the property is to be separated out and defined as matrimonial property or any other sort of property. There is no part of the property that is to be excluded from the jurisdiction of the Court to make an order changing the ownership of that property.[37]
73 As was submitted on Milica's behalf, the proposition that after-acquired property may be the subject of property settlement proceedings under the Family Law Act is reinforced by s 79(5) of the Family Law Act, which permits proceedings to be adjourned where the court is of the opinion that there is likely to be a significant change in the financial circumstances of one or both of the parties and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings.
74 We do not accept that Milica was precluded from bringing a proceeding under the Family Law Act in respect of 51 King Edward Avenue by reason of the fact that Stan did not become its registered proprietor until 11 May 2017.
Was Milica prevented from taking proceedings by Stan's death?
75 The applicant submits that it is relevant to whether Milica was an 'eligible person' that she had determined not to make an application under the Family Law Act on the basis of legal advice that she had received. In oral argument before us, the applicant submitted that in her affidavits filed in the proceeding below, Milica deposed that she had taken legal advice about seeking a property settlement in relation to 51 King Edward Avenue, but was told that there was nothing she could do because the property was not in Stan's name. Accordingly, so the applicant submits, Milica was prevented from commencing proceedings under the Family Law Act for the purposes of s 90(e) of the Act by the legal advice that she received, not by Stan's death.
76 Milica submits that at the time of Stan's death, she was entitled to take proceedings under the Family Law Act and was now prevented from doing so because of Stan's death. The relationship with Stan ceased at the end of 2016 and Stan died within two years, being the relevant time period for commencing proceedings under the Family Law Act. Further, the relationship satisfied the requirement for the length of a de facto relationship, which is two years.
77 Section 90(e)(iii) of the Act directs attention to whether a person 'would have been able' to take proceedings under the Family Law Act, not whether a person 'would have' taken proceedings or whether those proceedings would have been taken successfully. The legal advice that Milica obtained dissuaded rather than prevented her from bringing proceedings under the Family Law Act. The reason why Milica did not in fact take proceedings under the Family Law Act before Stan's death is irrelevant to her entitlement to take the proceedings, as is the nature of the legal advice that she took. What matters is that Milica would, as a matter of law, have been able to bring proceedings under the Family Law Act and that she is now prevented from doing so by Stan's death.
78 As for the applicant's contention that such proceedings would have been futile because of a lack of assets of the relationship, the statutory test for eligibility to bring proceedings under the Family Law Act does not require consideration of whether proceedings would have been successful or led to orders being made, for example, in respect of property rights or future maintenance.
79 The judge did not err in determining that Milica would have been entitled to take proceedings under the Family Law Act in respect of 51 King Edward Avenue, but was prevented from doing so by Stan's death.
81 Grounds 2 and 5 challenge the manner in which the judge weighed the evidence to conclude that Stan and Milica were in a genuine domestic partnership for many years until late 2016. Ground 2 challenges the judge's findings in respect of the indicia of the domestic partnership between Milica and Stan; ground 5 relates to the weight (or the alleged lack thereof) given by the judge to evidence of the circumstances in which Milica received a disability pension as a single person.
82 Ground 3 is that the judge erred in not properly applying the 'tests' set out in s 35(2) of the Relationships Act. In effect, ground 3 adds little or nothing to ground 2, which challenges the judge's finding that Milica and Stan were in a genuine domestic partnership.
83 The applicant submits that the judge's acceptance that there was a degree of mutual commitment to a shared life, that the relationship was a long one and that they lived together in various houses, ran counter to Milica's concession in cross-examination that she had only lived at 51 King Edward Avenue for a period of 18 months in the last 20 years. He submitted further that there was no basis for the inference that there was a level of financial interdependence and no evidence that Stan and Milica had shared bank accounts or made any contribution to the purchase of houses. Moreover, so it was contended, the evidence of the care and support of Natali and Michael was 'scant', as was the evidence of Milica and Stan having the reputation of 'man and wife', given that each of the corroborative witnesses agreed that the relationship was 'on and off'.
84 It is correct, as the applicant submitted, that Milica bore the burden of proving that she and Stan were in a genuine domestic partnership at the relevant time or times. Stan was not available to give evidence about the relationship, and given the evidence of its 'on and off' nature and his negative assessment of Milica's evidence, the judge had to take particular care in assessing the evidence. In our view, he did so. In particular, he carefully considered the evidence of the witnesses called on Milica's behalf, to which, as he observed, no significant challenge was made, other than the broad challenge that they were not telling the truth.[38] The judge accepted that Metodija, Vida and Emil had reasonably intimate knowledge of the lives of Milica and Stan, and that they visited them at 51 King Edward Avenue and observed them living in a domestic partnership.[39]
85 In reaching his conclusion, the judge did not ignore the difficulties with Milica's evidence and identified the aspects which troubled him in determining whether she and Stan were in a genuine domestic partnership, including Milica's concession that the relationship was 'on and off', that she had lived at the Hawthorn premises 'on and off', that she and Stan had not had a sexual relationship for 16 years and that she had been in receipt of a single person's disability pension.[40] The judge also noted Milica's denial of the accuracy of the statement in her application for an intervention order regarding the period of her separation from Stan.[41]
86 However, the judge weighed the evidence and decided that, taken as a whole, it favoured the conclusion that there was a genuine domestic partnership. He made the following findings and drew the following inferences specifically by reference to the factors in s 35(2) of the Relationships Act:
87 Each of these inferences was well supported by the evidence to which we have referred.
88 In relation to the last point, the judge had before him evidence, which he accepted, that Natali was known as Stan's daughter and Milica was known as his wife, that Stan and Milicia shared a bed, that Milica undertook domestic chores for the household and cared for Latinka, and that Stan and Milica used money for joint endeavours.
89 The obligation in s 35(2) of the Relationships Act is to consider all of the circumstances of the relationship, and any one or more of the matters set out in s 35(2)(a)-(h). There is no requirement that every one of the matters in paragraphs (a) to (h) be taken into account or that any particular weight be given to any of them. Nonetheless, the judge went through the factors individually in light of the evidence, and concluded that he was satisfied that Milica and Stan were in a genuine domestic partnership from 1977 to September 2016.[43] He did not misapply s 35(2) of the Relationships Act.
90 In Lee v Lee,[44] the High Court said of the appellate function in relation to findings of fact by the trial judge:
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'.[45]
91 The judge's findings were not glaringly improbable or contrary to compelling inferences. To the contrary, his analysis of the evidence was careful and cogent. He was entitled to find that there was a 'thread of truth' in what Milica said about how she met Stan and her account of how they entered into a genuine domestic partnership.[46] We see no error in the judge's acceptance of the evidence given by the corroborating witnesses, who observed Milica and Stan living together as a couple over many years, up to and including in 2016.
92 The applicant submits, in relation to ground 5, that Milica agreed that she was living at the addresses to which her pension was sent and that, looking at the time in total, she lived at 51 King Edward Avenue for less than one year. There was no evidence that Stan lived with her at those addresses. In short, it was submitted that she did not live at 51 King Edward Avenue for any significant length of time. Furthermore, so the applicant submits, Milica at all times represented to the Department of Social Services that she was a single person, and gave evidence that the relationship was 'on and off'.
93 The proposition advanced by the applicant that Milica conceded in cross-examination that she only lived at 51 King Edward Avenue for 18 months in 20 years requires attention, as does the more general argument about the weight to be given to the fact that she held herself out to be a single person to Centrelink.
94 In cross-examination, Milica was taken to the Centrelink Customer Record containing the different addresses apparently given by her at different times. She initially agreed that her Centrelink cheque went to her home address, and she agreed that she received her pension cheque at 3/128 Blackshaws Road, Spotswood, being the earliest address on the list. She was taken to the periods in which the Customer Record recorded her address as 51 King Edward Avenue and it was put to her that in the years 2000 and 2001, she lived there for eight months. She responded 'Yeah, 51 King Edward Avenue'.
95 There was then some questioning about the second period that Milica's address was recorded as 51 King Edward Avenue, commencing on 26 September 2016. It was put to Milica that this was after the relationship with Stan had come to an end, which she denied. Counsel for the applicant persisted, asking whether she agreed ‑-
Q: [t]hat you received the pension cheque being sent to you at 51 King Edward Avenue, Sunshine, for 26 September 2016. That's correct, isn't it?
A: What do you mean? 2016?
Q: Yes. The pension cheque was sent to 51 King Edward Avenue, Sunshine from 26 ...
A: No, the pension is being sent to my bank book.
96 When it was put to Milica that if the periods spent at the addresses listed were added up, she was at King Edward Avenue for less than a year, she responded that she stayed at King Edward Avenue on and off for more than 20 years. She also said that the electricity for 51 King Edward Avenue was in her name, as was the gas 'for 20 years'.
97 In our view, the evidence did not establish that Milica received her pension at 'various addresses' from 1999. The evidence was that the pension was paid directly into her bank account. Milica did not accept that she had lived at the addresses on the Centrelink Customer Record for the periods suggested by the applicant's counsel. Rather, her evidence was that she lived with Stan at 51 King Edward Avenue for 20 years 'on and off'. Her presence at 51 King Edward Avenue as her place of residence - with Stan - over a long period of time was supported by the evidence of Natali, Metodija, Vida and Emil.
98 The fact that Milica received a single person's disability pension from 1997 was to be assessed in light of all the evidence, including the evidence from the witnesses who saw Milica living together with Stan at 51 King Edward Avenue between 1999 and 2016. The fact that the relationship between Stan and Milica was described as 'on and off' may be best understood in the context of an abusive relationship from which Milica retreated periodically to the Hawthorn premises and in respect of which she sought to obtain a measure of economic independence.
99 The matters in s 35(2) of the Relationships Act were properly dealt with by the judge on the evidence before him. He carefully assessed and weighed the evidence, including the evidence that did not support the existence of a genuine domestic partnership. Based on his factual findings to which we have referred, the judge was entitled to conclude, having regard to the criteria under s 3(3) of the Act, that there was a genuine domestic partnership, and, Milica having satisfied the other conditions of an eligible person in s 90(e) of the Act, to conclude that Milica was eligible to obtain family provision under pt 4 of the Act.
101 The applicant complains that the judge should have ordered that the applicant's costs be paid out of the deceased's estate in priority to Milica's costs. The award of costs in this case involved the exercise of discretion by the primary judge and the applicant has not even sought to demonstrate error in the exercise of that discretion. No authority is cited in support of the applicant's proposition that an executor is entitled to payment of costs in priority to another party to litigation.
103 None of the proposed grounds of appeal has merit. Leave to appeal is refused.
[1] Riboskic v Stanojevic [2019] VCC 1764 ('Reasons').
[2] The Act s 3(1) (definition of 'domestic partner').
[3] Ibid (definition of 'unregistered domestic partner').
[4] Dated 4 September 2018 and 26 March 2019.
[5] Michael died of hyperthermia on 1 February 2018, only a few days before his father.
[6] Dated 5 September 2018 and 10 April 2019.
[26] Family Law Act 1975 (Cth) s 79(4)(a).
[27] Ibid s 90SM(4)(c).
[28] Ibid ss 75(2)(j) and 90SF(3)(g).
[33] In the marriage of Farmer and Bramley [2000] FamCA 1615; (2000) 27 Fam LR 316, 327 [56]-[57] (Finn J), 328-9 [65]-[66] (Kay J); [2000] FamCA 1615 ('Farmer and Bramley'); Calvin & McTier [2017] FamCAFC 125; (2017) 57 Fam LR 1, 10 [46]-[47]; [2017] FamCAFC 125 (Bryant CJ, Ryan and Aldridge JJ); Holland v Holland [2017] FamCAFC 166; (2017) 57 Fam LR 84, 89-91 [16]-[23]; [2017] FamCAFC 166 (Ainslie-Wallace, Murphy and Aldridge JJ). See also Orwin v Rickards [2019] VSC 375, [229]-[238] (Osborn JA).
[35] Ibid 10 [46] (Bryant CJ, Ryan and Aldridge JJ) citing Farmer v Bramley [2000] FamCA 1615; (2000) 27 Fam LR 316, 327 [56]; [2000] FamCA 1615 (Finn J).
[37] Ibid [404] (Carmody J) citing Carter and Carter [1981] FamCA 18; [1981] FLC 91-061, 76,491; [1981] FamCA 18.
[45] Ibid 148-9 [55] (citations omitted) (Bell, Gageler, Nettle and Edelman JJ).
Stanojevic
Riboskic [2020] VSCA 230
(2000) 27 Fam LR 316
(1981) 7 Fam LR 636
(2017) 57 Fam LR 84
(2017) 57 Fam LR 1
(2019) 266 CLR 129