LSB September 2019_Web

FAMILY LAW
improper to preclude declarations in such
circumstances and would “place people
claiming under [the Domestic Partnership]
provisions at the very disadvantage which
the provision is designed to remove.” 13
Recently “living together” was
considered in the light of the “peripatetic
lifestyle” of an airline pilot 14 and his partner.
The couple spent their limited contact time
at a wide range of locations. In making the
declaration, the court considered the longterm
plan of sharing a house and the public
presentation of the couple to be important.
It was held that although the test of “living
together” is not primarily locational, it has
an important locational element.
SITUATIONS TO CONSIDER
In practice, there are numerous issues
that one might encounter in regard to one
person “living with…” another. The writer
has encountered the following situations in
various contexts:
Two partners took a “break” in their
relationship. Was the applicant “living
with…” the deceased in a close
personal relationship?
Like Ross and Rachel, applicants must
be conscious if they took a “break” in their
relationship: “Where one partner determines
not to live together with the other and in that sense
keeps apart, the … relationship ceases even if the
separation is merely to enable one party or the other
to decide whether the relationship should continue.” 15
There is evidence that a couple
separates but hours before the death of
a partner. Are they “domestic partners”
at the date of death?
The answer would depend on when the
couple separated. If separation took place
on the same calendar day, the declaration
could still be made as the legislation
requires the declaration to relate to a “certain
date.” 16 If, however, the separation occurred
before or at 23:59.59, and the deceased
died at, or after, 00:00.00 (so technically the
next day), the court would technically be
unable to make the declaration at the date
of death.
What if one partner spent time in
hospital due to health issues or moved
away to work?
As long as the applicant could convince
the court that they have satisfied the
factual and temporal basis for a domestic
partnership, it is unlikely that the above
situations would preclude a declaration.
Both the applicant and the deceased
own separate residential properties.
Would this affect the merits of a
declaration application?
This is a common issue and one that is
frequently targeted in cross-examination.
Whilst not a determinative factor, multiple
residences might dilute the contention
that the relevant persons were “living
together.” Conversely, it has been held
that “the maintenance of separate residences is
necessarily inconsistent with parties having a de
facto relationship.” 17 If such issues are live
in a contested application, it is imperative
that they are carefully considered and
addressed before trial.
The applicant and the deceased only
live together in the same residence
for a small part of each week. Is an
application for a declaration likely to
fail?
There are several cases that consider
this question; it is “clearly established …
that the fact that, for example, the parties live
in the same residence, for only a small part of
each week does not exclude the possibility that
they are “living together as a couple on a genuine
domestic basis...” 18 Addressing this issue will
be specific to the facts of each case. For
example, repeated visits by an applicant to
the residence of a deceased for a “singular
purpose, without more…” was deemed
insufficient to satisfy the court of the
existence of domestic partnership.
The couple was forced apart by
circumstance such as drug addiction,
child protection intervention or fear
for the safety of a person. Could those
parties still be deemed to live together?
This question is very much determined
by the unique circumstances of a particular
case. The court would consider the nonexhaustive
statutory factors carefully.
Evidence to support such a declaration
could include:
• Written evidence of the reasons for
separation;
• Telephone records showing frequent
calls;
• Receipts for purchases or taxis near to
the other partner;
• Text and email messages;
• Photographs;
• Oral evidence of other witnesses.
The applicant maintained “singlestatus”
for Centrelink or other meansrelated
benefits during the lifetime of
the deceased. Does this mean that a
declaratory application will fail?
Evidence of lies within, or
inconsistency with, official documents
such as Centrelink applications are
not uncommon; nor are they strictly
determinative. 19 Practically, proving
a propensity to deliberately mislead
government agencies would reflect poorly
upon the misleading party. Evidence of
such conduct may create more serious
problems for an applicant.
FINAL REMARKS
Though it may appear at first blush
that an Applicant did not “live with” their
partner, there might be circumstances that
explain the separation without determining
the relationship. Living apart does not
necessarily preclude living with and
practitioners must carefully consider the
unique circumstances of each case. B
Endnotes
1 R v Bong [2013] SASC 39
2 M, S v Public Trustee [2017] SASC 71
3 Section 11B(3) FRA 1975
4 Section 11A(B) FRA 1975
5 Briginshaw v Briginshaw (1938) 60 CLR 336
6 Re Fagan (1980) 23 SASR 454 amongst others
7 (1987) 21 NSWLR 677
8 R v Creamer [1919] 1KB 564, 569
9 Main v Main [1949] 78 CLR 636
10 Nugent-head v Jacob [1948] AC 321, HL
11 Re Fagan (dec’d) (1980) 23 SASR 454, 464
12 Re Estate of Sigg (dec’d) [2009] VSC 47
13 Re Estate of Sigg (dec’d) [2009] VSC 47
14 Re Hawkins [2018] NSWSC 174
15 Hibbertson v George (1989) 12 Fam.L.R. 725
16 Section 11A FRA 1975
17 Jonah v White [2011] FamCA 221
18 Jonah v White [2011] FamCA 221
19 Aranas v Berry [2002] NSWSC 355
September 2019 THE BULLETIN 41