Vaughan v Hoskovich

Supreme Court of NSW|2009-12-11|Before: White J

CITATION : Vaughan v Hoskovich [2010] NSWSC 706 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Declare that the plaintiff is the spouse of Steven Hoskovich who died on 17 November 2007 ("the deceased") within the meaning of s 61B(2) of the Probate and Administration Act 1989 (NSW). 2. Order that letters of administration of the deceased's estate be granted to the plaintiff. 3. Remit proceedings to the Registrar to complete the grant. DECISION : 4. Order that the defendant's cross-claim be dismissed. 5. Order that the summons in proceedings 2009/305726 be dismissed. 6. Order that the costs of the plaintiff on the indemnity basis and the costs of the defendant on the ordinary basis be paid out of the estate. 7. The exhibits may be returned immediately. The parties' solicitors are to retain the exhibits for 28 days, and, if any appeal is filed, until the determination of the appeal.

Probate and Administration Act 1898 (NSW) LEGISLATION CITED : Property (Relationships) Act 1984 (NSW) Acts Interpretation Act 1954 (Qld)

Robson v Quijarro [2009] NSWCA 365 Ye v Fung [2006] NSWSC 243 Piras v Egan [2008] NSWCA 59 Hayes v Marquis [2008] NSWCA 10 Cardiacos v Cooper Consulting and Constructions Services (Aust) Pty Ltd [2009] NSWSC 938 Green v Green (1989) 17 NSWLR 343 CASES CITED : Weston v Public Trustee (1986) 4 NSWLR 407 Roy v Sturgeon (1986) 11 NSWLR 454; 11 Fam LR 271 Teubner v Humble (1963) 108 CLR 491 Bus v Sydney County Council (1989) 167 CLR 78 PY v CY [2005] QCA 247 FO v HAF [2006] QCA 555; (2007) 2 Qd R 138 KQ v HAE [2006] QCA 489; [2007] Qd R 32 K v H-J [2006] QSC 168

PARTIES : Plaintiff: Janet Louise Vaughan Defendant: Pauline Hoskovich

COUNSEL : Plaintiff: L Ellison SC Defendant: J Wilson SC

SOLICITORS : Plaintiff: Greg Alfonzetti, Solicitor Defendant: George Bassil & Associates

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2009/301042 Janet Louise Vaughan v Pauline Hoskovich JUDGMENT 1 HIS HONOUR: Steven Hoskovich died on 17 November 2007. He did not leave a will. He was unmarried and had no children. He is said to have left an estate valued at $413,000. The plaintiff claims that she was the deceased's de facto spouse who became entitled to his estate on intestacy. She seeks a grant of letters of administration of the deceased's intestate estate. 2 The defendant to the proceedings is the deceased's mother. If the plaintiff was not a de facto spouse of the deceased the defendant is entitled to his estate and is entitled to the grant of letters of administration. 3 Subsection 61B(2) of the Probate and Administration Act 1898 (NSW) provides: " 61B Succession to real and personal property on intestacy

(2) If the intestate leaves a spouse but no issue, the estate shall be held in trust for the spouse absolutely. " 4 Section 32G provides: " 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 ." 5 Section 4 of the Property (Relationships) Act 1984 (NSW) provides: " 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. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship. " 6 The plaintiff and the deceased kept separate houses. The plaintiff was divorced. She lived in her house in Turramurra with her son. The deceased lived with his brother in a house in Queens Park. The deceased lived with the plaintiff almost every weekend at her house in Turramurra. From time to time he also stayed with her on one week night. For the rest of the time he lived in the house he shared with his brother at Queens Park. The plaintiff rarely stayed there. As will appear in more detail in these reasons, the plaintiff and the deceased had a close personal and loving relationship for over 13 years. They were perceived by their circle of friends as a de facto couple. The deceased acted as a stepfather to the plaintiff's son. They attended social functions as partners. The deceased joined the plaintiff at gatherings of the plaintiff's family as her partner. The critical question in the case is whether, as the defendant submits, the deceased and the plaintiff could not be said to be living together as a couple given that the deceased stayed at the plaintiff's home on only one, two or three nights per week, but otherwise returned to his usual place of residence. The parties' relationship 7 The plaintiff and the deceased met at a "singles" night on 11 December 1993. They later celebrated that day as their anniversary. At that time the plaintiff was 37 and the deceased was 47. For the entirety of their relationship until the deceased's death, he was employed as an electronics technician by a company called Aristocrat at Rosebery. 8 Within weeks of their initial meeting the plaintiff and the deceased commenced a sexual relationship which continued on a regular basis until the deceased became too unwell, but, even then, their physical relationship continued as best it could. From about June 1994 the deceased began to stay at the plaintiff's house in Turramurra every weekend and for one night during the week. The deceased would ordinarily stay at the plaintiff's house at Turramurra each weekend from Friday night until Monday morning. The deceased often worked overtime on Saturday mornings at Rosebery and on those occasions he would usually stay in his house at Queens Park on Friday night. The deceased was a very keen golfer. He regularly played golf on Saturdays at the Eastlakes course with his brother or with friends. He also played golf with the plaintiff on Sundays. Mr William Hoskovich, the deceased's brother agreed that it was not very often that the deceased would spend his weekend at Queens Park, rather than spending it with the plaintiff. Mostly the plaintiff and the deceased would spend Sundays at the plaintiff's house relaxing or gardening. 9 Up to about 2001 the deceased would usually spend Wednesday night with the plaintiff in her house at Turramurra and go directly to work the next morning. From about 2001 that arrangement became less regular. 10 The deceased had keys to the plaintiff's property at Turramurra. He kept both work and personal clothing and toiletries at her house. He also kept some of his tools there. 11 The plaintiff and the deceased did not acquire any property together. They did not have a joint bank account. Each had his and her separate employment. They shared their holidays together and made a number of international and interstate trips together. They shared expenses such as holidays, restaurants, dinner parties, barbecues, entertainment and gifts purchased for friends or family. They shared those expenses approximately equally. 12 The deceased carried out or supervised substantial renovations to the plaintiff's house at Turramurra. He spent substantial time carrying out maintenance, repairs and renovations. He and the plaintiff spent a lot of time gardening at that property. When he stayed at the Turramurra property the deceased and the plaintiff shared more or less equally the tasks of cleaning the house and laundry. 13 Although the deceased did not live with the plaintiff on week days, except sometimes for one day per week, they spoke over the telephone daily. They discussed their plans for the weekend and would talk to each other about personal or work related issues. 14 In 1995 the plaintiff and the deceased considered having children together. The plaintiff was then 39. They went to pre-conception counselling at a clinic at St. Leonards. They tried to conceive but were unsuccessful. The plaintiff deposed that over time they abandoned the idea, predominantly because she was concerned about her age. 15 Notwithstanding her divorce from Mr Geoff Vaughan, the plaintiff remained on excellent terms with Mr Vaughan's parents and his siblings. Her relationship with Mr Vaughan also remained friendly. The plaintiff, her son and the deceased attended the Vaughan family Christmas eve celebrations every year, except in 2006 when they were holidaying in America. The deceased also attended other Vaughan family functions with the plaintiff. Mr Raymond Vaughan, the plaintiff's father-in-law, regarded the plaintiff and the deceased as de facto spouses and regarded the deceased as a member of their extended family. The plaintiff and the deceased frequently visited a farm owned by Mr and Mrs Vaughan senior near Orange. The deceased also attended at gatherings of the plaintiff's extended family as the plaintiff's partner. 16 There was not the same integration with the deceased's family. The plaintiff saw William Hoskovich, the deceased's brother, from time to time. The plaintiff and the deceased had their own circle of friends. The deceased did not introduce the plaintiff to his parents. He told the plaintiff that his mother was heartbroken when his last relationship ended and did not want to be involved in any other relationship he had. On Christmas day the deceased would usually visit his parents in the morning and then return in time to attend family functions with the plaintiff's parents, her siblings and their spouses and children. 17 The plaintiff's son, Mark, gave evidence, which I accept, that he regarded the deceased in every respect as a stepfather. He deposed that: " Very early [on] I started to call him 'Dad'. He would say to me that he would never replace my real Dad and we were 'best mates'. 'Best mates' is the term that Steve and I used to refer to each other for the time up until his death. " 18 The deceased attended Mark's major school events including fundraising nights, quiz nights, gala days and sports trials. He attended with the plaintiff the welcoming event for parents and children when Mark started in year 5 at a private school on the North Shore. The deceased taught Mark to play golf and tennis and encouraged his studies and music. 19 In December 2002 the deceased was diagnosed with multiple myeloma. Following a period of treatment including chemotherapy he returned to work in April 2003. He was treated by a medical specialist in haematology, Dr Robert Lindeman. The plaintiff attended the deceased at most of the deceased's consultations with Dr Lindeman and contributed to the discussion about decisions that needed to be made about the deceased's treatment at various times. Dr Lindeman deposed that the plaintiff played an integral part of the discussions about the deceased's treatment throughout the period of his treatment. He assumed that they were either married or were a couple in a de facto relationship. Apart from the deceased himself, the plaintiff was Dr Lindeman's first point of contact in relation to the deceased's treatment. He discussed the deceased's treatment with the plaintiff as he would with a spouse of any patient. The deceased expressed no objection to Dr Lindeman's dealing with the plaintiff in that way and appeared to be very happy with her support and assistance. 20 In her oral evidence the plaintiff said that on at least two occasions (one before their trip to Canada and the United States in 2006-2007 and one after) the deceased convalesced at her Turramurra home after leaving hospital. She put the period of convalescence at which he stayed at her home as a day or two, or a few days. Although that evidence was not given in her affidavit, I accept it. It was corroborated by her son Mark. The explanation for its not being in her affidavit was that she prepared her affidavit with the assistance of a diary and she had not noted it in her diary. I accept that explanation. I thought the plaintiff was a credible witness. 21 The plaintiff produced a vast quantity of Christmas cards, most of which are addressed "To dear Janet, Steve and Mark" or "To Janet, Steve and Mark", with some addressed "To dear Janet, Mark and Steve". They strongly indicate that the plaintiff and the deceased were perceived by their friends as a de facto partners. 22 The plaintiff and the deceased jointly bought a dog to whose welfare they were equally attached. The plaintiff gave evidence that she and the deceased discussed plans for retirement after Mark finished his studies and became completely independent. She deposed that they planned to find a place on the south coast to which to retire. There was evidence from the defendant's witnesses that the deceased made no mention of any such plans to them. I accept the plaintiff's evidence that she and the deceased did have such discussions. 23 The plaintiff and the deceased separated for about a month in 2002. The cause of the separation was disagreement about the deceased's wish to play in a golfing competion that would mean that he was away almost every weekend for about three months. The plaintiff said to the deceased that if he entered the competition they would hardly see each other and she would have to be doubtful about his commitment to their relationship. There was an argument and the deceased said words to the effect "I'm leaving now. I think we need a break to think things over. I'm not prepared to give up the competition." Some weeks later, at the deceased's suggestion, they had dinner and reconciled. The deceased did not play in the competition. 24 At this time another man wanted to have a relationship with the plaintiff. She had had dinner at his house on a couple of occasions, but their relationship had not gone beyond that. The plaintiff prepared notes in which amongst other things she set out her perception of the qualities of the two men and what she wished for. Included in the notes was the following: " Me

Steve w/end work - guilty " 25 On a page headed "Men!" the plaintiff made the following notes in respect of the deceased. " Steve

... " 26 In cross-examination the plaintiff admitted that the line "special friend" was a reference to the deceased. It was put to the plaintiff that she could have referred to the deceased as her partner or her husband, but instead chose to describe him as a special friend. The plaintiff said that what she meant was he was someone whom she could trust: more than a friend, a special friend. She agreed that the rest of the notes indicated that she wanted greater commitment from the deceased. She agreed that the note "Mark wants Steve back" indicated that the deceased was not then in her life. She said that the line "Steve independant [sic]" meant that the deceased allowed her independence. She did not disagree that the line "Steve - w/end work - guilty" referred to her reaction to his working on Saturdays. She said, and I accept, that the line "no commitment" under the column "Steve" meant that she wanted a greater commitment from him. She agreed that she was concerned that the deceased's commitment to golf took priority to everything else. The reference to "future" with a question mark suggested that she was uncertain about what was going to happen in the future with the deceased. The line "part time" was a description of their relationship, namely that it was a weekend relationship and that she was wanting to see more of the deceased. This of course was written at a time when they had been apart for four weeks. 27 These notes do not indicate that the plaintiff perceived that the parties' relationship, prior to the temporary separation, was not a relationship of de facto spouses. At the time the notes were written the parties had separated and were still separated. The plaintiff did not know whether their former relationship would resume, or, if it did, what would be its quality. In those circumstances it is not surprising that she should describe the deceased as a special friend rather than as her partner. That does not indicate that she would have so described him before their separation, or after their relationship resumed. Nor is it necessarily inconsistent with a de facto relationship existing that one party to it should describe the other as a friend or special friend. The relationships of friend or special friend, and de facto partners, are not mutually inconsistent. 28 On two or three occasions Mr William Hoskovich said to the deceased "to save going backwards and forwards why don't you move in with her?" to which he replied "No way. I like things the way they are" or words to that effect. The plaintiff also said that she and the deceased were happy with the arrangements. This raises the question as to whether the limited amount of time they spent living together means they were not in a de facto relationship, notwithstanding the many other matters that point to the existence of such a relationship. It does not answer that question. 29 A Mr Charles Mehanna had known the deceased since 1972. They became close friends, but their lives moved in different directions. The last time Mr Mehanna saw the deceased was in 1995 or 1996. He maintained telephone contact three or four times a year. The telephone contacts grew further apart over the years. The last time they spoke was in about 2003 or 2004. 30 Mr Mehanna deposed that in 1994 the deceased told him that he had met a new lady called Janet. Mr Mehanna invited the deceased to bring her to a barbecue and to have drinks. The invitation was declined. Mr Mehanna did not meet the plaintiff. Mr Mehanna deposed that in the conversation the deceased said to him words to the effect: " It's only a very casual relationship and we are not looking to make it more permanent. We have talked, she is going through separation from her husband and we are both aware of the need to protect our individual assets, for her it's a home and for me it's the house that Bill and I own. " 31 Mr Mehanna deposed that later in a telephone conversation the deceased said to him words to the effect: " Janet and I will not be living together as it may constitute a de facto relationship. I am aware of the possible legal complications and I want to avoid that. We are both very concerned about protecting our individual assets. We enjoy each other's company and the sexual relationship that we have on a casual basis. I wouldn't only set up a house and home with someone with whom I had the intention of having and raising children of my own but I have not been fortunate enough to meet someone special and now I am past that stage, I am too old to have and look after children. ... All Janette [sic] and I want out of the relationship is to spend a night or two together per week in each other's company and to be free to do whatever we each want to do without any obligations to each other. Janet has her son to look after. " 32 Mr Mehanna said that he had conversations to that effect with the deceased in about 1995 or 1996 and on other occasions up to the end of the 1990s. He gave evidence of conversations with the deceased where the deceased said words to the same effect, although in different words, that the reason he did not move into the plaintiff's house was because he was not prepared to risk her making a claim on his assets if the relationship soured. 33 Evidence to similar effect was given by a Mr John Simonetti. He deposed that in about 1994 the deceased said to him "I am seeing some bird from the North Shore". When asked what she was like, the deceased said "She is ok" but did not elaborate. From about 1994 the deceased and Mr Simonetti saw less of each other. Mr Simonetti last saw the deceased in about 2002. In the three years before then, he saw him perhaps once a year and would speak over the phone about as regularly. He never met the plaintiff. Mr Simonetti said that on several occasions he said to the deceased that he needed to settle down and get married but the deceased replied in words to the effect "I've got too much to lose housewise". His perception of the deceased's relationship with the plaintiff was that the deceased saw her as a girlfriend but wanted to keep her at arm's length. The deceased had introduced all other previous girlfriends to him and his parents, but not the plaintiff. 34 William Hoskovich also said that he and the deceased had friends who had divorced or relationships which did not work out and that "in view of the financial repercussions if the parties split up [the deceased] did not want this to happen to him." 35 Whatever he said to Mr Mehanna, Mr Simonetti and his brother, the deceased did not say to the plaintiff that he was not prepared to risk his assets by entering into a de facto relationship. He did not say to the plaintiff that he did not want a long-term involvement or that he wanted to keep affairs on the basis of boyfriend and girlfriend. That was the plaintiff's evidence which I accept. Her evidence in that regard is entirely consistent with the many cards written by the deceased to the plaintiff during their relationship. 36 The deceased and his brother played golf almost every Saturday at the Eastlakes course. The computer records for the club were lost in a computer crash and are available only from 1 January 2005. The golf pro for the club had a note that for 2005 the deceased and his brother played 49 rounds of golf. This was fairly typical. 37 I accept the evidence of Mr Mehanna and Mr Simonetti. However it is not clear when the deceased said words to the effect of those of which they gave evidence. The conversation described by Mr Mehanna included the deceased saying that he would only set up a house and home with someone with whom he had the intention of having children of his own. That would indicate that the conversation occurred very early in the relationship of the deceased with the plaintiff because in 1995 the deceased and the plaintiff did attempt to have a child. That indicates that the deceased then had a commitment to the plaintiff considerably greater than what he represented to Mr Mehanna and to Mr Simonetti. 38 I accept that one reason the deceased did not move full time into the plaintiff's house at Turramurra was that he was concerned that if the relationship soured she might make a claim on his property. There were other reasons for that decision. The deceased worked at Rosebery. Travel to Rosebery was much more convenient from Queens Park. Also, he and the plaintiff were comfortable with keeping their lives separate to a degree. 39 The plaintiff was cross-examined on some overseas trips she made without the deceased. I do not think that anything arises from those. The plaintiff was employed in the travel industry and the trips were associated with her work. Of more significance is the number of holidays that the plaintiff and the deceased took together and those they took with Mark. Of particular note is a trip taken to America between 8 December 2006 and 9 January 2007. The deceased had had two bone marrow transplants in 2006 but was advised that further transplants would be required. He and the plaintiff and Dr Lindeman discussed whether they should go on the holiday before he had chemotherapy as a prelude to a transplant and whether the delay would make any difference. Dr Lindeman said this was a major management decision. They took the decision, with which Dr Lindeman agreed, that they would take the holiday, and defer the large procedure. The deceased had the transplant in about March or April 2007, but it was not successful and from then it was clear that he was terminally ill. 40 The hospital records for the deceased's admissions in 2007 (of which there were five) gave William Hoskovich's name as the emergency contact name. The agreement with the funeral parlour signed by William Hoskovich named William Hoskovich as the deceased's next of kin. I do not think that either of these matters is of any real significance in the proper characterisation of the relationship between the plaintiff and the deceased. 41 Notes of the social worker at the hospital in January 2007 and March 2007 referred to the deceased as living with his "partner Janet and her 18 year old son" and said that "his wife works in a travel agency". The social worker was not called. It is not known on what basis she assumed at that time that the deceased was married or in a de facto relationship. 42 A social worker's notes of 30 October and 1 November 2007 indicate that the plaintiff and William Hoskovich sought information about the status of the plaintiff and the deceased. The social worker's notes also record that the deceased did not have a will and both the plaintiff and William Hoskovich had concerns with the process if the deceased did not survive. The social worker sought advice from a contact at the Guardianship Tribunal and told William Hoskovich that on the basis of the advice she had received, the parties were in a de facto relationship despite their not living in the same residence. The note records that William Hoskovich expressed no concern about that matter and said he would hand over the information to the plaintiff. 43 The time came on 16 November 2007 when a decision had to be made as to whether to turn off life support for the deceased. There was a family conference with the medical staff and the deceased's parents and brother. The medical records note "Bill currently difficult to engage on emotional level and appears 'angry' at situation." The deceased's mother was very distraught and difficult to communicate with. Nor could the deceased's father participate effectively in the discussion. What is significant is that, without objection from the deceased's parents or brother, the plaintiff played a major role in the decision that active therapy should be withdrawn. The hospital records state that that position was reached by consensus. Mr William Hoskovich confirmed in his oral evidence that the plaintiff was involved in all the decision-making about the deceased's treatment and said that they both agreed to the withdrawal of active therapy. 44 The plaintiff organised the deceased's funeral. William Hoskovich said to her words to the effect of "It's only right that you organise the funeral. My parents and I will be happy with whatever you arrange. We know that you'll do the right things and we'll appreciate everything you do." He asked the plaintiff to contact the deceased's friends at work as he did not feel able to talk to them. 45 William Hoskovich completed the death certificate. The plaintiff was named in the certificate as the deceased's de facto spouse. William Hoskovich deposed that he was pressured by the plaintiff to describe her as the deceased's de facto spouse and that he said "Ok however we will find out later whether or not you are a de facto as I am not a lawyer." 46 The plaintiff denied that she pressed to be described as a de facto spouse in the death certificate. I accept that denial. However, I do not think that description takes the matter any further. William Hoskovich was not in a position to make an informed assessment of the parties' relationship. The death certificate is further evidence of the reputation and public aspects of the relationship, namely, that it was a de facto relationship, but does not have any greater significance than that. Independently of the death certificate there is powerful evidence that the deceased and the plaintiff were regarded by friends and by the plaintiff's family as a de facto couple. 47 Two other circumstances require mention. The first is that there is no material to show that the relationship between the plaintiff and the deceased was anything but an exclusive one. That is, there is no suggestion that either had any other sexual partners from the time their relationship commenced. Whilst fidelity is not a necessary criterion of a de facto relationship (Robson v Quijarro [2009] NSWCA 365), it is indicative of a mutual commitment to a shared life that, so far as appears, neither party had any other partner or liaison. 48 Finally, the plaintiff visited the deceased in hospital on an almost daily basis during all his admissions and sometimes spent days at a time with him at the hospital.

Criteria for determining whether parties were in a de facto relationship 49 The question for decision is whether the plaintiff and the deceased were living together as a couple within the meaning of s 4(1)(a) of the Property (Relationships) Act. The decision of that question is to be made taking into account all of the circumstances of the relationship, including those enumerated in paras (a) to (i) of subs 4(2). For two people to live together as a couple means that they live together and that, at least initially, they be united by love or be living together in a romantic relationship (Ye v Fung [2006] NSWSC 243 at [65]). At least if the partners remained living together, the fading of love or romance need not spell the end of a de facto relationship. But it is unnecessary to explore that question in the present case. The plaintiff and the deceased remained in a loving relationship until his death. The real question is how much togetherness is required before it can be said that parties live together as a couple. 50 One of the circumstances of the relationship to be taken into account under subs 4(2) is para (b), namely the nature and extent of common residence. Subs 4(3) provides that no finding in respect of any of the matters mentioned in subs (2)(a)-(i) is to be regarded as necessary for the existence of a de facto relationship. That is curious as it seems difficult to see how parties could be said to be living together as a couple if they never had a common residence. However, in Piras v Egan [2008] NSWCA 59, Campbell JA said (at [146]) that: " [146] ... It should be recalled that the list of 'circumstances' in s 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in s 4(1). If two people do not 'live together as a couple' they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various 'circumstances' listed in s 4(2). " 51 What is clear from subs 4(3) is that satisfaction of the requirement that the persons live together as a couple does not require that they share a common residence on a full-time basis. There are of course many examples of people who can be said to live together, although one or the other is away for long periods. A partner who takes an overseas posting, or who goes to sea in the course of his or her occupation for long periods, will not cease to live with his or her partner because of extended absences. In Hayes v Marquis [2008] NSWCA 10, Einstein J said (at [166]): " [166] Upon its proper construction the expression 'living together' in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to cohabit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as 'their home'. Both of them may not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan Deceased [1980] 5 Fam LR 813 where Jacobs J observed [at 822] that 'there may be states of cohabitation where (the partners) see as much of each other as they can', to which I would add - 'in the circumstances'. But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonably. " 52 In the present case the parties were not separated by countervailing circumstances, such as family or business requirements, that required them to spend time apart. Rather, the parties chose to live together only for a small part of each week. 53 In my view, the fact that they lived together only for a small part of each week does not mean that they cannot be said to have lived together as a couple. Whether they lived together as a couple, must of course take into account all of the circumstances, including those listed in subs (2). But it seems to me that the maintenance of separate residences is not inconsistent with the parties living together as a couple, provided that there is sufficient shared residence over a long enough period to amount to "living together". Parties can live together for part of a week and also live apart, for part of a week. Although living apart for some periods, they can still live together as a couple if all the circumstances indicate that they are "a couple". I accept that the phrase "living together as a couple" connotes that the persons will live together in a place which can be said to be their home, but a person can have more than one home (Cardiacos v Cooper Consulting and Constructions Services (Aust) Pty Ltd [2009] NSWSC 938 at [27]-[29] and cases there cited.) In the present case, as indicated in paras [10] and [12], the parties treated the plaintiff's Turramurra property as one of the deceased's homes. 54 Subsection 61B(3A) of the Probate and Administration Act provides: " 61B Succession to real and personal property on intestacy ... (3A) Notwithstanding subsections (2) and (3), if the intestate leaves a spouse and a de facto spouse, the whole or, as the case may be, such part of the estate of the intestate as is 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 and the intestate did not, during the whole or any part of that period, live with the person to whom the intestate was married - the de facto spouse, or (b) in any other case - the spouse. "

The assumption in s 61B(3A) is that a person may have a de facto spouse whilst living with the person to whom he or she is married. Likewise the requirement in s 32G that to be a "spouse" for the purposes of the Act, a de facto partner must be the intestate's sole de facto partner is a recognition that a person may have more than one de facto partner. In other words, a person can live together with one person as a couple, whilst also living together with another person. As Mr Ellison SC pointed out in submissions, an example is Green v Green (1989) 17 NSWLR 343 where Gleeson CJ said (at 346) that the deceased was married, had two de facto wives, and maintained simultaneous domestic relationships with all three women and their respective children. However, that case contains no analysis of the extent of common residence needed before it can be said that two persons are living together as a couple. Nonetheless these provisions show that the fact that the deceased lived with his brother does not mean that he could not also have lived with the plaintiff as a couple. 55 The question was considered by Young J (as his Honour then was) in Weston v Public Trustee (1986) 4 NSWLR 407. The plaintiff in that case was an eligible applicant under the Family Provision Act 1982 if she "was living with the deceased person as his wife on a bona fide domestic basis" (s 6)). The plaintiff and the deceased had separate residences. It was customary for the deceased to stay the night with the plaintiff in her bed and in her flat on two to three nights per week and virtually all weekends. The parties shared a car and some expenses. She did virtually all his washing and ironing and provided him with a meal to heat up when he returned to his flat at Bondi (at 410). In an approach which was subsequently criticised by Powell J in Roy v Sturgeon (1986) 11 NSWLR 454; 11 Fam LR 271 Young J said that the statutory phrase in s 6 could be split into three elements: a) living; b) bona fide domestic basis; c) as his wife (at 408). His Honour continued: " So far as (a) is concerned, it seems to me that here we are dealing with the same sort of concept as is involved when one has to consider whether people have been living separately and apart for the purposes of grounds for divorce under the former divorce legislation. There the cases make it quite clear that one was not looking to see whether the parties were physically cohabitating but whether there was a relationship between them which was one which showed that the marriage relationship was still alive. Thus it did not matter that one or other of the parties may have been on holidays or posted overseas for six months or so or may not have been living under the same roof as the other. One had to see whether the two parties had the bond between them and I think that the word 'living' in this phrase has the same connotation. Accordingly, it is not fatal to the plaintiff's case that she and the deceased did not physically live in the same place seven days a week, fifty-two weeks a year. " 56 Thus his Honour construed the requirement that the applicant be "living with" the deceased as directing attention not to physical co-habitation but the nature of the relationship between the parties. 57 In Roy v Sturgeon Powell J (as his Honour then was) said that it was wrong to attempt to break down into discrete elements the single phrase intended to describe a single concept (at 458). That has been emphasised also in later cases. As I read his Honour's judgment, the point of that criticism was to cast doubt on the conclusion of Young J in Weston v Public Trustee that the parties in that case could properly be said to have lived together as husband and wife on a bona fide domestic basis. Having said that the court has to make a value judgment on the variety of factors relating to the particular relationship including the nine factors now found in subs 4(2) of the Property (Relationships) Act plus the factor of the procreation of children, Powell J addressed the facts in Roy v Sturgeon. There was a question as to when the parties' de facto relationship commenced. This was important because Powell J was of the view that for the purposes of making an adjustive order under what was then called the De Facto Relationships Act 1984, it was not open to the court to take into account contributions made by a party to the relationship before the de facto relationship commenced. (That is no longer the law (Hayes v Marquis at [103]-[104] and cases there cited).) In Roy v Sturgeon the plaintiff had moved from the home unit she owned into the defendant's house in November 1981. There was a question as to whether the de facto relationship had commenced before that time. Powell J said (at 460): " As the facts which I will later shortly recount will demonstrate, the relationship between the plaintiff and the defendant was one which, over the years, developed in the way suggested by the Commission in the extract from the report which I have set out above. At first but a casual acquaintance, it soon developed into a closer relationship, and then - the defendant then still being married and living with his wife - into what might be called 'an affair', during the course of which the plaintiff fell pregnant but later miscarried. Later still, after the defendant and his wife separated, the plaintiff and the defendant were accustomed to spend more time in each others [sic] company, the plaintiff often spending the week-end at the defendant's home, on which occasions the plaintiff - and, later, one of other of her sons who would often accompany her on such occasions - would take on the household tasks such as shopping, washing, ironing and gardening.

Close though the relationship of the plaintiff and the defendant may have become prior to November 1981, each seems to have regarded herself and himself as leading an independent life and maintaining a separate home. That this was so is, I believe, sufficiently demonstrated by an extract from the plaintiff's original affidavit (sworn 20 March 1986), which extract is all the more telling because it seems clear that, at all times, it has been the plaintiff who was more committed to, and prepared to put more into, the relationship between herself and the defendant. That extract is as follows: '14. At some time in November 1981 I said to the defendant " this is ridiculous, running back and forwards, swapping beds, it's creating an instability for the children. We should if there's a basis for us a family then for the sake of Jenny, David and Andrew, we should do something to stabilise it. " At that time his daughter Jennifer was accustomed to visiting and staying overnight two to three times each week. Her relationship with us was such that she occasionally jumped into bed with us on the morning on such occasions. 15. After I said this the defendant said " well I guess we could put it together, but it would have to work, because we couldn't afford it financially or emotionally if it didn't, as we'd both been through problems " or words to that effect.'

This being the state of the evidence, I do not consider it open to me to hold that the plaintiff and the defendant commenced to live as husband and wife on a bona fide domestic basis until November 1981, when the plaintiff moved from the home unit which she owned, and in which she had, until then, been living, to live with the defendant in his home at Min Mai Road, Mona Vale. " 58 His Honour appears to have concluded that because each party led an independent life and maintained a separate home, they could not have been in a de facto relationship. With respect, that is a bare statement of a conclusion. In reaching that conclusion his Honour did not adhere to his own insistence that all factors must be taken into account in making a value judgment as to whether the phrase "living together as a husband and wife on a bona fide domestic basis" was satisfied. I do not suggest that his Honour's conclusion on this question of fact was wrong, rather that I do not accept that it necessarily follows from a finding that each party led an independent life and maintained a separate home, that they did not live together as de facto partners. The degree to which each had an independent life, and the extent to which they lived together although having separate homes, together with all the other circumstances of the case, would need to be considered. 59 A court's reasoning on questions of fact does not create any precedent (Teubner v Humble (1963) 108 CLR 491 at 503; Bus v Sydney County Council (1989) 167 CLR 78 at 89). In Hayes v Marquis McColl JA said (at [83]) that the criticism of Powell J in Roy v Sturgeon of Young J's approach in Weston v Public Trustee did not deprive Young J's remarks of their analogical force in respect of the overarching concepts of "living together" addressed by ss 4 and 5 of the Act. 60 In Hayes v Marquis, McColl JA also said (at [78]): " [78] ... A de facto relationship is one which might ordinarily be expected to emphasise common residence. However, while the definition of a de facto relationship requires a relationship between two adult persons who live together as a couple, s 4(2) makes it plain that sharing a "common residence" full-time is not essential to a conclusion that a de facto relationship exists: see also PY v CY [2005] QCA 247 (at [7]) per De Jersey CJ. Rather the significance of a common residence, in determining whether a de facto relationship exists, turns on its nature and extent." 61 In PY v CY [2005] QCA 247 the parties had been living together on a full-time basis, but the woman moved house to be with her elderly parents who were suffering ill-health. It was then intended that the man would also move, but he did not. The definition of "de facto relationship" in the Acts Interpretation Act 1954 (Qld) was not materially different from the definitions in question in the present case. De Jersey CJ said (at [7]): " [7] But 'common residence' is not of itself necessary for there to be a de facto partnership, and will not without more give rise to such a relationship. That is made clear by the following sub ss (3) and (4):

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis. (4) Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

See also S v B [2004] QCA 449. " 62 In FO v HAF [2006] QCA 555; (2007) 2 Qd R 138 Keane JA, with whom McMurdo P and White J agreed, said (at [25] and [26]): "[25] In PY v CY , this Court confirmed that continuing cohabitation in a common residence is not necessary to establish the continuation of a 'de facto relationship' where the parties have lived together as a couple, and have not effected a permanent separation. Nevertheless, the definition of 'de facto relationship' suggests that, usually, the parties should have, at some stage, been 'living together as a couple on a genuine domestic basis'. It must be shown that 'the parties have so merged their lives … that they [were], for all practical purposes, living together as a married couple'. The fact that the parties have never lived together in a common abode must be acknowledged to be a strong indicator that they have not 'lived together as a couple on a genuine domestic basis'. This indication will be especially significant where the parties have not shared the burden of maintaining a household.

[26] The circumstances of human affairs are so various that the courts should refrain from attempts to define more precisely than the legislature the kind of relationship regulated by Pt 19 of the PLA. Nevertheless, as this Court said in KQ v HAE , it will be an exceptional case where two people who have not lived in a common residence, and who have not made actual provision for their mutual support, can be said to have been 'living together as a couple on a genuine domestic basis'. " 63 This was made in the context of a couple who intended to live together but had not started to do so. They each had work commitments that took them to different cities. It was not until the woman told the man that she was pregnant that they discussed how shared living arrangements could be implemented. Prior to then, there was no aspect of a shared living arrangement of the kind in the present case. 64 In KQ v HAE [2006] QCA 489; [2007] Qd R 32 the parties had never lived together. They had had a sexual relationship which involved one staying at the other's residence only briefly (K v H-J [2006] QSC 168). Section 32DA of the Acts Interpretation Act 1954 (Qld) defines a de facto partner as being one of two persons who are living together as a couple on a genuine domestic basis but who were not married to each other or related by family. Section 32DA(2) provides that in deciding whether two persons are living together as a couple on a genuine domestic basis any of their circumstances may be taken into account including the nine factors referred to in s 4(2) of the New South Wales Property (Relationships) Act. Section 32DA(3) of the Queensland Acts Interpretation Act, like s 4(3) of the New South Wales Property (Relationships) Act provides that no particular finding in relation to any one circumstance is necessary for deciding whether two persons are living together as a couple (on a genuine domestic basis). The only substantial linguistic difference between the NSW and Queensland legislation is the Queensland requirement that the two persons living together as a couple do so on a "genuine domestic basis". In KQ v HAE the Queensland Court of Appeal said (at [17]-[20]): "[17] It is also instructive that the PLA describes the relationship as that which exists between 'de facto partners' . The expression ' de facto partners' evolved as both a comparison and a contrast with the relationship of marriage. A ' de facto relationship' was, in ordinary parlance, a relationship which exhibited the characteristics of mutual commitment familiar in the relationship of marriage, save for the solemnities involved in the formal exchange of wedding vows between a man and a woman.

[18] Obviously, the scope of the expression ' de facto relationship' in pt 19 of the PLA is not strictly limited by the genesis of the expression in popular speech. For example, the provisions of pt 19 are not confined to relationships between men and women. Nevertheless, the nature of the association involved in the marriage relationship is instructive in this context. It is clear from s. 32DA(4) of the Acts Interpretation Act that pt 19 of the PLA is not concerned with the relationship between people who merely live in the same household and share living expenses: the PLA is not concerned with the relationship between friends who share a household, or with that between carer and patient. Further, the fact that two people have a sexual relationship will not suffice to establish that they are ' de facto partners' . This is clearly so, by reason of the fundamental requirement that the parties must be 'living together as a couple on a genuine domestic basis'.

[19] These considerations all lend support to the view taken in earlier cases that a 'de facto relationship' will not be established for the purposes of pt 19 of the PLA unless it can be seen that 'the parties have so merged their lives that they were, for all practical purposes, living together as a married couple'.

[20] It may also be accepted that a continuing cohabitation in a common residence is not necessary to establish the continuation of a ' de facto relationship', at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of ' de facto relationship' suggests that, usually, the parties should have, at some stage, been 'living together as a couple on a genuine domestic basis ' . The fact that the parties have never lived together in a common abode must be acknowledged to be an indicator that they have not 'lived together as a couple on a genuine domestic basis'. This indication will be especially significant where the parties have not shared the common burden of maintaining a household. It would be a wholly exceptional case in which one could conclude that a man and a woman, who have never lived together as husband and wife in a common residence, and who have never made provision for their mutual support, have been 'living together as a couple on a genuine domestic basis'. That conclusion is not justified by the mere circumstance that the parties, or one of them, at some stage, intended eventually to marry. Such a case is one where friendship, or even courtship, has not matured into the commitment whereby the parties have so merged their lives that they were, for all practical purposes, living together as a married couple. " 65 It is not inconsistent with persons merging their lives that for all practical purposes they live together as a married couple, that they live apart for a majority of time each week. There must be many married couples where one partner lives separately from his or her own spouse on weeknights, e.g. to be close to work, and returns to his or her family on weekends. The relationship of the plaintiff and the deceased was like that. 66 The factors enumerated in s 4(2) of the Property (Relationships) Act in the present case can be summarised as follows. The relationship was of reasonably long standing, almost 14 years. Significantly it was terminated only by death. The nature and extent of common residence has been discussed in detail above. For the reasons I have given I do not consider that the periods in which the parties lived apart is fatal to the plaintiff's claim that a de facto relationship existed - although it is the most significant factor pointing to a negative answer to that question. A sexual relationship existed throughout the relationship for so long as was physically possible. The parties were financially independent. This also points towards a negative answer to the question. The parties did not own property in common, but they had plans to do so in retirement. Although the parties agreed to live apart for a substantial part of the week, they nonetheless had a high degree of mutual commitment to a shared life. This was enhanced, not diminished, by their brief separation in 2002. Even when they were physically apart they were in communication with each other. Although there were no children of the relationship, they tried to have a child together and the deceased had the role of stepfather to the plaintiff's son. When they lived together, they shared household duties. The deceased also made substantial contributions to the extension, repair and upkeep of the plaintiff's house and garden. Finally, amongst their wide circle of friends, the plaintiff's family, the family of the plaintiff's former husband, and the deceased's doctor (a significant figure in the deceased's life given his illness), they were regarded as a de facto couple. 67 Notwithstanding the factors pointing to a negative answer to the question whether there was a de facto relationship, I consider that the preponderance of factors is in favour of an affirmative answer. Of particular significance is the reputation and public aspects of the relationship, their attempts at having a child together, and the deceased's being regarded as a stepfather by the plaintiff's son. 68 For these reasons the plaintiff is entitled to a grant of letters of administration. The defendant's cross-claim will be dismissed. 69 The parties have made submissions on costs. Prima facie, being the successful party, the plaintiff is entitled to her costs from the defendant. But different principles often apply in probate cases. Here the deceased was the cause of the litigation by not having made a will. By not doing so he put his parents (his father has since died) and the plaintiff in the invidious position of litigating a question whose resolution involves a "value judgment" on which minds may legitimately differ. Moreover neither party would have known the full facts on which that question is to be decided. In my view it would not be just if either party were required to pay the costs of the other. In cases of doubtful testamentary capacity, it is common for there to be no order as to costs against the unsuccessful party. In this case, the circumstance that the deceased was the effective cause of the litigation by not having made a will indicates that the costs of both parties should be paid from the estate. The costs of the defendant should be paid on the ordinary basis. 70 It appears that Mr William Hoskovich has used his position as a signatory to the deceased's bank account to transfer funds of the deceased to himself. Prima facie, he will be obliged to account for those funds to the plaintiff, but that is not a question presently before me. 71 For these reasons I make the following declaration and orders: 1. Declare that the plaintiff is the spouse of Steven Hoskovich who died on 17 November 2007 ("the deceased") within the meaning of s 61B(2) of the Probate and Administration Act 1989 (NSW). 2. Order that letters of administration of the deceased's estate be granted to the plaintiff. 3. Remit proceedings to the Registrar to complete the grant. 4. Order that the defendant's cross-claim be dismissed. 5. Order that the summons in proceedings 2009/305726 be dismissed. 6. Order that the costs of the plaintiff on the indemnity basis and the costs of the defendant on the ordinary basis be paid out of the estate. 7. The exhibits may be returned immediately. The parties' solicitors are to retain the exhibits for 28 days, and, if any appeal is filed, until the determination of the appeal.

30/06/2010 - Addition of Fam LR citation to Roy v Sturgeon in Cases Cited - Paragraph(s) 0

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Probate and Administration Act 1989(NSW)

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