Determining De Facto Relationships in Estate Disputes: An Analysis of WPA v MLX [2011] QSC 315

Introduction

This case involves a dispute over the estate of Ms B, who died intestate (without a will) in a car accident on 30 June  2009.

The applicant, who is the father of Ms B’s two children, sought a declaration that he was in a de facto relationship with Ms B at the time of her death.

Evidence of the relationship

The court examined the nature of the relationship between the applicant and Ms B, particularly focusing on the two years preceding her death. Evidence was presented from various witnesses, including family members, friends, and professionals who had interacted with the couple. The court also considered documents such as tax returns, school enrolment forms, and police reports.

Early period (2001 – 2004)

The applicant and Ms B met in 2001 when Ms B was nearly 17 years old. Their relationship began in June 2001, with the applicant claiming they started living together at his parents’ address at that time.

They had two children together, born in 2003 and 2004. However, the relationship was characterised as volatile, affected by drug and alcohol use, and domestic violence in the early period until November 2004.

On 6 December 2004, Ms B notified Centrelink of her separation from the applicant, effective 20 November 2004. From that point until her death, she received Centrelink benefits as a single person.

Middle Period (2005 – 2007)

The relationship pattern thereafter involved periods of living together interspersed with separations, during which the applicant would sometimes stay with his parents.

A significant event occurred on 10 October 2007 when a protection order was made against the applicant.

Charleville Relocation (2008)

Subsequently, in January 2008, Ms B moved to Charleville with the children, intending to relocate permanently. The applicant followed after about six weeks. They returned to Gatton in late August or early September 2008, moving into a house together on Maitland Street, indicating a reconciliation.

Final Period (2009)

However, in February 2009, Ms B moved to another residence on W Road without the applicant. On 8 May 2009, Ms B reported to the school and police that she had recently separated from the applicant. Despite this, there was evidence of increasing contact between them in June 2009, including a weekend away together with the children on 25 June 2009. The applicant spent the evening of 29 June 2009 with Ms B and the children, helping them prepare for a trip.

Tragically, Ms B died in a car accident the next day.

Application of S v B [2005] 1 Qd R 537

It’s noteworthy that after November 2004, they did not have joint bank accounts, and Ms B rented properties solely in her name. However, there was evidence that the applicant remained involved in the children’s activities in the two years preceding Ms B’s death. This complex pattern of separations and reconciliations formed a critical part of the court’s considerations in determining the nature of their relationship at the time of Ms B’s death.

The court extensively relied on and applied the principles established in S v B [2005] 1 Qd R 537 to analyse the relationship between the applicant and Ms B.

The judgment cited S v B’s characterisation of de facto relationships as inherently fragile, emphasising that the persistence of relationship indicators is crucial for its continuance.

The court adopted S v B’s definition of when a de facto relationship ends, which is when one party decides to no longer live with the required degree of mutuality and chooses to live apart.

Importantly, the court noted that S v B held that this intention does not need to be explicitly communicated, as long as the party acts on their decision.

In applying these principles, the court emphasised that the effect of a separation must be judged objectively based on the parties’ conduct at the time, considering the context of their relationship.

The judge particularly focused on the concept of separations having a “quality of permanence” as outlined in S v B. This principle was important in assessing whether two key separations – Ms B’s move to Charleville in January 2008 and her separation from the applicant in May 2009 – had effectively ended their de facto relationship.

Ultimately, the court concluded that both these separations possessed the necessary “quality of permanence” to terminate any existing de facto relationship between the applicant and Ms B.

This conclusion was reached even though there were subsequent reconciliations, highlighting the court’s adherence to S v B’s emphasis on the parties’ intentions and actions at the time of separation, rather than subsequent events.

Analysis of Factors under s32DA of the AIA

The judge also analysed the facts of the case against the criteria set out in section 32DA of the AIA to determine whether a de facto relationship existed between the applicant and Ms B at the time of her death:

1. Nature and extent of common residence:
   • The judge found there was not a common residence for at least six weeks when Ms B relocated to Charleville in January 2008.
   • There was also no common residence from early May 2009 when they separated.
   • The judge was not satisfied that the parties had resumed living together before Ms B’s death in June 2009, despite increased contact.
2. Length of relationship:
   • The relationship covered the period from June 2001 until 30 June 2009, with periods of separation.
3. Sexual relationship:
   • A sexual relationship existed throughout the period when the parties were staying in the same residence.
4. Financial dependence or interdependence:
   • After November 2004, the applicant and Ms B maintained separate finances.
   • Their communications with Centrelink and the Taxation Office were on the basis that each maintained a single status.
5. Ownership, use and acquisition of property:
   • Ms B rented properties solely in her name after November 2004.
   • The applicant maintained his parents’ address as his address.
   • The applicant had use of Ms B’s household goods when he resided with her.
6. Degree of mutual commitment to a shared life:
   • This was affected by the applicant’s medical and associated personal problems.
   • The applicant was involved in his children’s activities during the two years preceding Ms B’s death.
   • However, there were two significant periods of separation during this time.
7. Care and support of children:
   • The applicant was involved in his children’s activities and shared experiences with them, as evidenced by photographs and videos.
8. Performance of household tasks:
   • This was not specifically addressed in the judgment.
9. Reputation and public aspects of the relationship:
   • Ms B notified the school and police of their separation in May 2009.
   • Ms B confirmed the separation to a nurse, Ms Bowater, as late as 18 June 2009.

Judges findings on De Facto Relationship Status

The judge concluded that the applicant failed to show that he and Ms B had lived together as a couple on a genuine domestic basis within the meaning of s 32DA(2) of the AIA for a continuous period of two years ending on Ms B’s death.

This conclusion was based primarily on two significant separations during this period – in January 2008 and May 2009 – which the judge determined had the “quality of permanence” and effectively ended any de facto relationship, despite subsequent reconciliations.

Issues regarding Estate Administration

In addition to the main claim, the applicant also sought to have the respondent removed as administrator of the estate, alleging misconduct. The court examined these allegations, which included claims of misuse of estate funds for personal travel and questionable investments. However, the judge found that while there may have been some initial confusion about appropriate expenses, the respondent’s actions did not amount to actionable misconduct.

Ultimately, the court dismissed the application, finding that the applicant was not Ms B’s de facto partner at the time of her death and that there were no grounds to remove the respondent as administrator of the estate. This decision meant that the existing letters of administration granted to the respondent remained in place, and the estate would be distributed according to the intestacy rules, with Ms B’s children as the primary beneficiaries.

Conclusion

The case highlights the complexities involved in determining de facto relationships, especially when there have been periods of separation. It also shows the importance of clear communication and proper record-keeping in estate administration, particularly when family relationships are strained.