O'Brien v Public Trustee of Queensland (No 2)
[2004] QDC 15
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- O'Brien v Public Trustee of Queensland (No 2)[2004] QDC 15
- Add to List
O'Brien v Public Trustee of Queensland (No 2)[2004] QDC 15
O'Brien v Public Trustee of Queensland (No 2)[2004] QDC 15
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Brien v Public Trustee of Queensland (No 2) [2004] QDC 015 |
PARTIES: | KATHARINA O'BRIEN Applicant And PUBLIC TRUSTEE OF QUEENSLAND (As Administrator of the Will of Fritz Koblitz (deceased)) Respondent |
FILE NO: | 81/03 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court of Queensland, Southport |
DELIVERED ON: | 9 February 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9, 10 December 2003 |
JUDGE: | Alan Wilson SC,DCJ |
ORDER: | Application dismissed |
CATCHWORDS: | FAMILY PROVISION – DE FACTO SPOUSE – applicant claiming she qualified as dependant/de facto spouse – claim for further provision – parties living in different places for lengthy periods – whether relationship properly categorised as connubial – whether applicant maintained/supported by deceased – application dismissed Succession Act, 1981 |
COUNSEL: | Mr M K Conrick for the applicant Mr D R Murphy for the respondent |
SOLICITORS: | McDonald Chesters Official Solicitor for the Public Trustee of Queensland |
- [1]This is an application for Family Provision brought under Part 4 of the Succession Act 1981 by Katharina O'Brien (‘the applicant’)against the estate of the late Fritz Koblitz (also known as Frederick Andre Koblitz, and Fred Koblitz) (‘the deceased’). Mr Koblitz died on 15 June 2000, aged 78. The applicant is now almost 77 and claims further provision on the basis she was his de facto spouse between August 1994 and the date of his death, a period of five years 10 months. Other interested parties are the Public Trustee, as administrator of the estate, and two adult daughters of the deceased from an earlier relationship – Suzette Leonay Read and Tanya Maria Burns, who were represented in these proceedings by the Public Trustee.
- [2]The deceased’s last will was made on 17 April 1969 and leaves his entire estate to his daughters in equal shares. It appointed an executor who predeceased him and the Public Trustee was granted an Order to Administer on 16 November 2000.
- [3]The deceased’s personal history is only glimpsed in the evidence. His death certificate shows he was born in Czechoslavakia, came to Australia when he was about 22, and married Francis Amelia Steele in South Australia when he was 45. His daughters Suzette and Tanya were 47, and 45 at the time of his death. The certificate shows his occupation as “manager” although it is clear he was not working during the period from 1994 until his death. Although affidavits were filed for both daughters none disclose any further information about their parentage or their father’s personal history. Suzette Read says he moved to Queensland in 1976/77 and it may be inferred he had lived in Melbourne, where she and her sister reside. His former partner Adriana de Kort said he lived with her in a de facto relationship for 10 years from 1977 and after it ceased he remained in her house, presumably as a boarder, until 1995.
- [4]At the date of death the estate consisted of various bank accounts and investments worth about $100,000, and an interest by inheritance in the estate of the deceased’s late brother Henry Koblitz worth $318,000. At trial the estate had a gross value of about $340,000, less the respondent’s costs of this action estimated at about $47,500 and administration costs and commission which have not yet been calculated. The diminution in the size of the estate between death and trial can be attributed in part to the fact that a distribution of $30,000 was made to each of the two daughters on 14 June 2001. The distribution does not attract any criticism of the Public Trustee – the applicant brought her application for further provision out of time, on 4 March 2002, in circumstances which were subsequently excused[1]. The applicant estimated her costs up to the date of judgment at about $64,000. For the purposes of this application the net value of the estate can be assumed to be about $275,000 or, perhaps, slightly more (ignoring the applicant’s costs).
- [5]The deceased also had an interest in assets which did not pass under his will. At the time of his death there was about $300,000 held in a joint bank account with his daughter Suzette Read which passed to her by survivorship and which she shared, equally, with her sister. She and her father also had joint access to a safe deposit box which, as her affidavits show and I accept, contained many personal documents but nothing of significant monetary value.
- [6]As the Privy Council noted in one of the early, important cases in this jurisdiction, they are never easy[2]. The problems are in part conceptual, in part in ascertaining the facts, and in part in applying the relevant principles to the facts once found.[3]. The present case encompasses all of these difficulties, with particular emphasis on factual disputes which arise:
“… because only the deceased and the applicant really know exactly what went on between them and the Court must be very careful to make sure it is not misled by over-enthusiastic evidence from the only party alive who can still give evidence as to the exact relationship.”[4].
- [7]The critical factual dispute here concerns the time the deceased and the applicant cohabited between 1994 and the date of death. The respondent concedes that the applicant and the deceased might have lived under one roof between August/September 1994 (in a house rented by the applicant and shared with her brother at Mt Tamborine) and, certainly, that they did live in the one place for a time from about June 1995 in a house purchased at Esk in their joint names. The respondent further contends, however, that in 1996 this cohabitation in the Esk house (whether connubial or not) was terminated by the deceased when he sold his interest in the home, moved to the Gold Coast and took up permanent residence there in a caravan park and, thereafter, simply visited Esk from time to time, generally on weekends.
- [8]The applicant’s case is, conversely, that the deceased always lived with her at Esk and merely spent some short intervals in his caravan at the Gold Coast to pursue recreations which she did not share, including shortwave radio activities and socialising at the Workers Club at Southport. It will be seen that each contention is, effectively, the mirror of the other. Either the deceased cohabited with the applicant at Esk, or he lived alone at the Gold Coast and visited her.
- [9]The applicant also contends that although the deceased spent significantly more time at the caravan park in the last few months of his life (January-June 2000), that occurred because of his illness and declining health and it did not signify a change or deterioration in the relationship. Indeed, the applicant says, his health problems in 1999 had led them to jointly resolve to sell the Esk property and move to a house at Ormeau which she had just arranged to rent when the deceased died in his caravan.
- [10]Each party filed a large number of affidavits from neighbours and acquaintances, and relatives and medical practitioners to advance the respective contentions, and a number of deponents were cross-examined. The applicant produced her brother, Richard Earl; neighbours at Esk, Mr and Mrs Reik; a solicitor, Mr Steed; her son, Paul Attard and his daughter, Sarah; Doctors Weissenberger, Grigg and Kakelin; Elaine Lederhose; and, Jean Evans. The respondent called one of the deceased’s doctors, Dr Levy; his former de facto wife Adriana de Kort; and, neighbours and acquaintances Mary Bremner, Margaret Bowie, Kevin Bremner, Errollie Hull, and Maurice Cole.
- [11]Each counsel took time and effort, of course, to attempt to discredit the witnesses called for the other and each also provided lengthy written submissions analysing that evidence and other material having possible relevance to the deceased’s place of residence in the years 1995-2000 – in particular, telephone, medical and other records. The witnesses generally presented as decent and honest, and largely disinterested, and doing their best to give a fair account of their observations but, as so much of human experience shows, memory is a poor and often contradictory transcript of the past.
- [12]This emphasis on the location of the deceased’s residence is a product of the legislation and the nature of the relationship the applicant alleges she shared with the deceased, which is now a very common one and in some countries the predominant kind of heterosexual partnership[5]. With a plethora of contradictory evidence from independent witnesses and in the absence of one party to the alleged relationship, the applicant’s evidence is obviously an important element of her case. Her credit became a vivid issue.
- [13]Before these credit issues are addressed it is appropriate, first, to determine the parameters of the dispute by reference to the appropriate legislation, and cases in which the wide variety of relationships which are connubial, or approximate that state, have been explored. The issue upon which the parties focussed so heavily – where, and in what relationship to each other, the applicant and the deceased resided – is on any view an integral element of a connubial partnership. The question is whether this one persisted for the requisite period up to the date of death; or, was severed by periods when the parties did not cohabit; or, whether the existence of separate residences itself indicates the relationship was not truly ‘connubial’.
- [14]Because the deceased died on 15 June 2000 the applicant’s claim falls for consideration under the Succession Act 1981 as it stood prior to the amendments effected by the Discrimination Act Amendment Act 2002, which came into force on 1 April 2003. Under s 5 a “de facto spouse” is a person who lived in a connubial relationship with the deceased person for a continuous period of at least five years, ending on the death of the deceased or, within the period of six years ending at the date of death lived in a relationship of that kind for periods totalling at least five years (including a period ending on the date of death). Moreover the applicant must establish, to prove an entitlement to further provision under s 41, that she was a “dependant” i.e. a person who was being wholly or substantially maintained or supported (otherwise than for a full valuable consideration) by the deceased at the time of death[6].
- [15]It is clear the Act treats the survivor of a marriage differently to a de facto spouse. The latter are categorised as “dependants” and required to prove dependency at the date of death. The difference has led to it being remarked in one Queensland case that it is obviously impossible to regard an applicant who is a de facto spouse as one who has standing in an equivalent position to a spouse[7] but I do not think this goes further than to draw attention to the statutory distinction. Certainly, it is now accepted that a de facto spouse of long standing, at least, is to be treated in the same way as the partner of a marriage[8].
- [16]
“The inquiry is whether the parties maintained a relationship as though they were husband and wife although not married to each other. That inquiry cannot be answered simply by reference to any list of factors which commonly are found in such a relationship and a determination whether they are present in a particular case. It is essential to have regard to the personalities and circumstances of the parties concerned.”
His Honour went on, nevertheless, to cite the various factors listed in a NSW case, Roy v Sturgeon (supra) at 459, as a useful framework for analysis. Those factors included, relevantly here, the duration of the relationship; the degree of financial interdependence and any arrangements for support between or by the parties; the ownership, use and acquisition of property; the performance of household duties; the degree of mutual commitment and mutual support; reputation and “public” aspects of the relationship; and, the nature and extent of the common residence.
- [17]In respect of the last factor Ryan J said, relevantly for present purposes:
“A connubial relationship will persist if the parties are living temporarily apart, but intend to resume cohabitation. But can it be said that parties who had lived in a connubial relationship and intended to resume cohabitation after a prolonged separation had lived in a connubial relationship during that period of separation? In other words is the condition of living in a connubial relationship broken by prolonged non-cohabitation?
…
I accept that the question whether persons have put an end to a connubial relationship may involve different considerations from the question whether they have terminated a marriage relationship and that a court may more readily infer that the consortium vitae has been terminated in the case of a de facto relationship than in the case of a marriage. But I consider that if the mutual intention of parties to a connubial relationship is that the relationship is to continue though they are not cohabitating for a period, then it can probably be said that during the period they are living in a connubial relationship. They will not be so living if the evidence discloses that one party intended that the relationship should cease or if that is the inference to be drawn in the circumstances. That inference will, I think, be readily drawn if the period of non-cohabitation is prolonged.” (my emphasis)
- [18]The significance of a common residence was also recognised by Bryson J in Davies v Sparkes (1989) 13 Fam LR 575 where it was held that the absence of a shared home, a lack of significant financial interdependence and non “public” reputation among friends or relatives meant that what the plaintiff asserted was a de facto relationship was nothing more, in truth, than a long term friendship. That conclusion was reached notwithstanding concurrent findings that the parties did have a long, continuing sexual and social association and there was ‘real mutual commitment and support’; but, although they spent time under the same roof it could not, in truth, be said that they had lived together.
- [19]The Full Court of the Family Court has suggested that living together under the same roof assumes greater importance, in determining whether or not a de facto relationship exists, than it does in deciding whether or not a marriage has collapsed, for the obvious reason that a de facto relationship may more readily be entered into, and more easily abandoned[11]. The difference was nicely posited by Young J in Sim v Powell[12], at 245:
“There are many very real distinctions between marriage and a de facto relationship. For present purposes, the most significant is that people remain in the state of marriage despite long absences. The essence of a de facto relationship is that the parties are continually treating the other as if he or she were a husband or wife: Hibberson v George (1989) 12 Fam LR 725 at 740, though see Thomson v Badger (1989) 13 Fam LR 559.” (my emphasis)
- [20]Other cases suggest that the use of a separate dwelling is not, necessarily, inconsistent with the continued existence of a de facto relationship: Ward v Anderson (1987) BC 8902087[13]; Henry Fagan (1980) 23 SASR 455; and, McKenna v Solomon (1995) DFC 95-157 in which the relevant facts are set out in the judgment of Kirby P (Handley and Sheller JJA agreeing) at 77, 303:
“There is not a great deal of dispute concerning the background. In 1988 the appellant began a de facto married relationship with Mr John Solomon (the deceased). The couple lived together on a fulltime basis for some 21 months until January 1990. Thereafter, they lived apart. However, each held keys to the others homes. They visited each other regularly during the week and at weekends. It was upon one such visit to the deceased’s home that the appellant found the deceased’s body, soon after his death on 23 July 1990.”
- [21]In giving his reasons for overturning the decision at first instance to deny the appellant’s claim for provision from the deceased’s estate, Kirby P (as he then was) said at 77, 308:
“With respect, insufficient or no attention was given in the Master’s reasons to the enduring, close and person intimate relationship which was established between the deceased and the appellant and which lasted until the deceased’s death. She may or may not have qualified as an eligible person on the basis that she was living with the deceased … as his wife on a bone fide domestic basis. The Master rejected that claim. Because it was not contested that she was an eligible person, in considering the order that ought to be made the quality, nature, intensity and duration of the relationship between the appellant and the deceased fell to be evaluated.”
- [22]It is to be noted, however, that the requirements of the NSW legislation differ from the Queensland Act. The NSW Act[14] merely stipulates that the parties be ‘living in a domestic relationship’, without any reference to connubiality which, albeit the NSW legislation directs the court to factors typical of a marriage-type bond, contains I think a stronger directive to consider the relevant relationship by comparison with lawful marriage. Some caution must be applied, then, in considering authorities in the jurisdiction from that State.
- [23]These cases dictate that, in this instance, it is appropriate to determine when, where, and in what circumstances the parties resided in the relevant period (in so far as that may be possible); and for how long they were separated (again, so far as that can be resolved); and, then, to determine if the relationship revealed by those findings was connubial (and had the relevant elements of maintenance and support); or, was not of that kind – or, was severed by separations. The existence of periods of separation will also require a decision about the inference, if any, to be drawn from them – the issue of the intentions of one or both parties discussed by Ryan J in the passage set out at para [17], and by Mahoney JA in Hibberson v George[15] at 740:
“The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases…”
- [24]The interval between August 1994 when, as I accept, the deceased moved in to a house at Mt. Tamborine occupied by the applicant and her brother Richard Earl, and the date of his death may be divided into three periods: the first is at Mt. Tamborine and extended up to mid-1995, when the house at Esk was purchased. The second is the period when, as I also accept, the applicant and the deceased lived in the Esk home for a period ending on an unknown date in 1996 but, most likely, in the second half of that year. The third period is from that time up to the date of the deceased’s death – almost four years.
- [25]I am prepared to accept, albeit not without some hesitation caused by doubts about the applicant’s credit, that she lived with the deceased in a connubial relationship between August 1994 and about September 1996 at Mt. Tamborine, and then at Esk. Much greater doubt arises, however, about the period of almost four years from September 1996 until the date of death, notwithstanding the witnesses called by the applicant who asserted the relationship continued, or said they saw evidence consistent with that.
- [26]The house at Esk was purchased in joint names for $82,500 in June 1995. It was the applicant’s evidence about that event which gave rise to doubt about the calibre of her recollection, and her credit. Her initial affidavits gave no details of the purchase, but her third affidavit filed 9 May 2003 contained an assertion that she had given the deceased $25,000 in cash, and some family jewellery for him to “… keep … as security for the balance of my contribution to the home”. In her evidence she said, however, that she gave the deceased cash money after selling some jewellery[16], amounting to $42,000 from the sale of a necklace, three rings and a hip chain privately.
- [27]This inconsistency is further compounded in a note of a police officer to the effect he was told by the applicant that the deceased paid the full price for the home but she gave him three gold rings valued at $30,000 which he placed in a safety deposit box in Brisbane[17]; and, further muddied by letters from a solicitor, apparently acting for her in October 1996, to the deceased containing the following passages:
“We are instructed by Katharina O'Brien that she has given you three rings in good faith as security for her interest in the house property at 34 Middle Street Esk. These rings are valued at $28,000.
We note you are being paid out for your interest in that property and as such no longer have the requirement for the security.
We will require on settlement of this matter in consideration of a $38,000 bank cheque payable to yourself, collection of the rings used as security.
…
We confirm that upon receipt (which is hereby acknowledged) of the three rings previously given to you by Katharina O'Brien we are instructed there are no further claims or outstanding matters by Katharina O'Brien as against yourself as a result of the residency and property at 34 Middle Street, Esk[18].”
The letters were written at a time when the deceased had arranged to sell his interest in the Esk House to the applicant’s brother Richard Earl for $38,000. In his evidence Mr Earl agreed the deceased wanted to finalise matters as between himself and the applicant in relation to the house at Esk[19]. The last passage cited from the solicitor’s letter certainly carries that inference, at least. While living in the Esk house the deceased was twice admitted to psychiatric hospitals (in August 1995 and March 1996) and witnesses describe his odd behaviour around these times. The applicant does not dispute that after his discharge on the second occasion he went to the Gold Coast, but her case is that after only a few weeks he returned to Esk and continued to spend most of his time there until a few months before his death.
- [28]The evidence about this lengthy period is, as remarked earlier, contradictory. Significant doubts about the applicant’s credit make it necessary to look to the large amount of extraneous evidence in an attempt to resolve the issue. The letters themselves (written some considerable time after the last admission), and the involvement of a solicitor in dealings between the parties, is hardly consistent with the actual or anticipated continuation of a connubial relationship after the deceased sold his interest in the Esk home. An inference surfaces that the sale signified an intention on his part to quit the ‘connubial’ relationship or, at least, cease permanent cohabitation.
- [29]Other evidence strengthens that inference. The discharge report after the second psychiatric admission contains a note from a psychiatric registrar that the deceased had made a decision to move to the Gold Coast, and end his relationship with the applicant[20]. There is also evidence that later in 1996, after selling his interest in the Esk home to Mr Earl, the deceased made changes to his Social Security benefits and changed his electoral enrolment to the Federal Division of Fadden, covering the address of the caravan park on the Gold Coast.
- [30]Mr and Mrs Bremner and the witnesses Bowie, Hull and Cole, all residents of the caravan park, said that to their observation he lived at that park at Biggera Waters for the last years of his life, but went away to Esk for visits from time to time, or to Melbourne. Against that, of course, witnesses for the applicant put him in Esk for the majority of the time and describe the pair as living like a married couple, with the male partner simply visiting the Coast for short, if not infrequent, breaks. These conflicts make it useful to look at other evidence and, in particular, medical, telephone and bank records.
- [31]Between 1996 and 1999 the deceased consulted medical practitioners at Esk, or Ipswich on 15 occasions. In the same period he saw Dr Weissenberger at the Gold Coast, with the applicant, on a couple of occasions between April and May 1996, and Dr Levy at Southport on 18 occasions.
- [32]A very careful analysis of the deceased’s telephone records by the applicant’s counsel shows, and I accept, that in the period between May 1997 and December 1999 he made telephone calls from his caravan in 1997 on 49% of all days in the year, 47% in 1998 and 44% in 1999. A different analysis by the applicant’s counsel shows that in this period of about 700 days the deceased’s phone at the caravan was used for STD calls on 453 days. Many of these calls were to the applicant’s phone number at the house at Esk. Some were very long, while others were short.
- [33]A similar exercise with respect to the deceased’s banking records shows that of 297 withdrawals from bank branches or at ATM’s only 18 were undertaken in Esk, Ipswich or Toogoolawah, 37 in Brisbane and the balance were on the Gold Coast – in percentage terms, 81%.
- [34]On any view this evidence attracts no other logical conclusion but that the applicant and the deceased were apart for significant periods of time. That conclusion is even more pressing in the period from mid-January 2000 until the deceased’s death when the telephone records show (and the applicant concedes) he spent all or almost all his time at the caravan park. Although the telephone records for this period show constant and lengthy calls to the applicant, there is obvious physical separation at a time when, as I accept, he was unwell. The applicant accepts that after a trip to Melbourne in February 2000 the deceased remained almost exclusively in the caravan.
- [35]As already remarked, there are significant differences in the observations of the witnesses in the caravan park on the Gold Coast, and at Esk and the conclusions about the deceased’s place of residence those two groups drew from those observations. While some witnesses described the deceased as an outgoing person the majority agreed he was something of a ‘loner’. In any event it is impossible to avoid the conclusion he lived a kind of double life: on the Gold Coast he was known as ‘Fred’, a rather knockabout character who liked to drink at the Southport Workers Club; in Esk, he was ‘Andre’, and in that persona he wrote cards to the applicant in a romantic vein.
- [36]The conclusions of the witnesses each party called are matters of opinion, coloured by elements of this kind. I do not think it is necessary, ultimately, to resolve these differences of opinion by attempting to choose which ought be preferred because, as the neutral evidence - the telephone, medical, bank and other records - show, on any view the applicant and the deceased spent about half of the time between September 1996 and the deceased’s death in separate places. The distance between Esk and the caravan park on the Gold Coast makes it obvious his sojourns there were something more than just flying visits, in daylight hours.
- [37]All relationships are different, and many marriages involve periods of physical separation, even long ones. What establishes the continuance of the relationship is a discernible, ongoing intention that it should subsist and usually plans, however inchoate, to resume co-habitation at a future time even if the precise date is uncertain. Prolonged non-cohabitation is still seen as ordinarily inimical to a marriage and as the passages quoted earlier show, may eventually give rise to an inference that it has ceased. The inference is more readily drawn when the relationship is something less than a lawful marriage.
- [38]I do not think it is possible to draw any other inference here. Such prolonged periods in separate residences at places quite distant from each other mean no other conclusion is reasonably open. Plainly, the deceased either never intended to return to Esk and to cohabit permanently there with the applicant; or, even if he expressed or appeared to evince that intention, he was not being entirely frank.
- [39]Other possibilities are that he did not know his own mind, or simply enjoyed a lifestyle which featured the comforts of periods at Esk and the pleasures of a solitary life on the Gold Coast. Indeed, the latter is a conclusion which fits quite neatly with the facts. In any event, I am not persuaded the deceased and the applicant cohabited in the Esk house in the period after late 1996, and up to the date of death.
- [40]The relationship between the parties is not easily categorised but might more readily be described as a long term romantic attachment which stopped short of becoming more fixed and did not, at the deceased’s choice, ascend to marriage or something like it; or, a friendship or, even, something like a traditional engagement in which parties see much of each other, but do not live together. It was not, however, a connubial one. I am also satisfied it failed to qualify as a relationship of that kind from the time the deceased began to occupy his caravan on the Gold Coast in 1996, and did not change after that time, up to the date of death.
- [41]That conclusion is strengthened when the other common traditional elements of a connubial relationship are taken into account. Save for the period when they owned the Esk house jointly, there were no shared property interests. There is no evidence of any intermingling of financial affairs. There were no joint bank accounts. Each continued to receive a single person’s pension, and neither showed the other as a de facto partner or dependent in documents relevant to pension entitlements. Indeed, on the applicant’s own evidence during the period they lived in the house at Esk there was a very careful accounting from her about expenditure and the deceased paid half those expenses[21]. They do not seem to have socialised together, and she did not accompany him on any of the trips (about 6) he made to Melbourne in the last few years of his life. There is evidence which I accept that the deceased had his own circle of friends and acquaintances on the Gold Coast, which he enjoyed without the applicant’s company.
- [42]Although there is also evidence of some discussions about marriage they never came to fruition and in light of the age of the parties and the length of the alleged relationship, there was no good reason for delay. Mr and Mrs Reik, neighbours in Esk, were impressive witnesses and said they understood from conversations they overhead that the deceased and the applicant planned to marry on his birthday on 2 August 2000. In light of the nature of the relationship revealed by the analysis set out earlier, this seems to be yet another manifestation of what might be called the deceased’s dual existence. It cannot be taken as a reliable sign his intentions had changed, with any effect on the nature of his relationship with the applicant.
- [43]On the worst view of it, the deceased was not dealing with the applicant in an honest, straightforward manner. Another view, held by some witnesses, is that the applicant interfered excessively in his life and much of his conduct was simply placatory. The truth is indeterminate, and probably lies somewhere in between. In any event this evidence is not, in light of all the other conflicts and uncertainties about the relationship, sufficient to establish it was connubial.
- [44]Even if a relationship of that kind could be found, however, the applicant faces further difficulty in establishing she was being maintained in some way by the deceased. In her original affidavit[22] the applicant asserted the deceased “paid for numerous items and expenditure which I could not afford prior to the relationship and can no longer afford …”. She then lists over 20 types of expenditure but, even if the allegation was correct in 1995 and 1996, there is no documentary evidence in the form of receipts or the like to support it. From 1996 until the date of death she continued to live in the Esk home, receiving a single person’s pension. Despite being pressed in cross-examination she was unable to point to any expenditure in the latter years, up to and including the date of death save those which involved a clear, equal separation of expenses, with each paying half. Arrangements for the renting of the Ormeau house around the time of the deceased’s death typify this. She said that she and the deceased each paid half of the bond and four weeks rent but the lease was taken in her name “… because Mr Koblitz wanted things separately”.
- [45]She asserted[23] that the deceased paid for car repairs, her mobile phone bill, house and RACQ insurance and medications and wool for her hobbies, and vitamins up to and including the date of death, but in cross-examination it was also revealed that what the deceased paid was “… half of everything”[24]. All of these payments were said to have been in cash. For the reasons given earlier I do not accept the applicant was a witness of good credit and in the absence of independent corroboration of these claims, am unpersuaded they were made.
- [46]Even if the applicant is given the benefit of the doubt, however, this expenditure signifies nothing more than an equal sharing of expenses incurred for joint benefit, or purposes. In Re; Cobb[25], Kneipp was prepared to accept that shared expenditure of this kind establishes whole or substantial maintenance because it involves savings over individual expenditure. This ignores, with respect, the wording of the section which requires that the maintenance or support be “whole or substantial”[26], and it is impossible to see how, even on the most generous view for the applicant, the circumstances she describes meet that criterion.
- [47]The applicant has not been able to establish that she was living in a connubial relationship with the deceased in the requisite period, including the date of death, nor that she was being wholly or substantially maintained or supported by him, and her application must, therefore, fail.
Footnotes
[1] O'Brien v Public Trustee of Queensland (2003) QDC 427
[2] Bosch v Perpetual Trustee Co (1938) AC 463, at 476
[3] Blair v Blair [2002] BSC 95, at para 13 per Harper J
[4] Weston v Public Trustee (1986) NSWLR 407, at 409
[5] In Sweden, Norway and Denmark: Kurtz, ‘The End of Marriage in Scandinavia’ , The Weekly Standard, 2 February 2004, Vol 009, Issue 20
[6] and, was a de facto spouse: s 40
[7] re Williams, unrep (Master McLaughlan QC, Supreme Court, 23 November 1988, OS 369/1988)
[8] Carruthers v Marshall [2001] NSWSC 665
[9] Tulk v Tulk (1907) BLR 64, at 65; Weston v Public Trustee (1986) NSWLR 407 at 409;Roy v Sturgeon (1986) 11 NSWLR 454 at 458
[10] Re McKenzie, unrep (Supreme Court of Queensland, 27 November 1992, OS 63/90)
[11] In the marriage of L and L (1984) FLC 91.563
[12] (1997) 22 Fam LR 243
[13] unreported, Supreme Court NSW, 6 June 1989, 3213/88
[14] Family Provision Act 1982, s 6(1)
[15] supra
[16] T25.37
[17] Exhibit 2
[18] Affidavit Suzette Leonay Read filed 24 May 2003, Exhibits SLR 10 and SLR 11.
[19] T73.24-26
[20] Part of Exhibit 2
[21] Exhibit 13; and see T23.8-12, 56-57; and, T36.18-31
[22] File 27 June 2002, para. 51
[23] T14-15
[24] T20.16; T21.1-40
[25] (1989) 1 Qd.R. 522
[26] Re: Knitter (unrep) (McGill QC, DCJ, 11 March 1999)