Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Asquith v Registrar, NSW Births, Deaths and Marriages [2015] NSWCATAD 8 Hearing dates: 20 November 2014 Date of orders: 19 January 2015 Decision date: 19 January 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: Decision of Registrar, NSW Births, Deaths and Marriages set aside. Catchwords: Relationship as a couple; de facto partner; de facto relationship. Legislation Cited: Births Deaths and Marriages Registration Act 1995 Births Deaths and Marriages Registration Regulation 2011 Civil and Administrative Tribunal Act 2013; Interpretation Act 1987 Cases Cited: Bennett v Registrar, NSW Births, Deaths and Marriages and Another [2006] NSWADT 33 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 Category: Principal judgment Parties: Emmeline Asquith (Applicant) Registrar, NSW Births, Deaths and Marriages (First Respondent) William Leslie Ross (Second Respondent) BNR (Third Respondent) Representation: Solicitors: E Asquith (Applicant in person) Crown Solicitors Office (1st Respondent) Cox Solicitors (2nd and 3rd Respondents) File Number(s): 1410443 Publication restriction: Order pursuant to section 64 (1) (a) and (4) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of the Third Respondent and witness known as BNR; and persons referred to as BCD and RAS. Reasons for decision 1. This is a review of a decision under the Births Deaths and Marriages Registration Act 1995. Ms Emmelline Asquith (also known as Ms Snow) is seeking review of a decision made by the Registrar of Births, Deaths and Marriages on 8th August 2014. The decision was that the Registry declined to amend the death registration of Scott William Ross: * to record Ms Asquith's name as de facto partner of Scott William Ross; and * to record Mr Ross's marital status as 'de facto' rather than married or separated. 1. The reasons provided by the Registry were that: "The Registry is unable to determine and is therefore not in a position to make a decision on the specific nature of the relationship between parties, based on the documents provided. Evidence is not conclusive in respect of determining a de facto relationship." 1. The reasons advise Ms Asquith to seek legal advice and a court order making a finding of the nature of the relationship between herself and Mr Ross. Background 1. Ms Asquith and Mr Ross lived together in a rented property at Evans Head commencing October 2013. Mr Ross died on the 4th December 2013. The Registrar of Births, Deaths and Marriages issued a death certificate for Mr Ross which did not name Ms Asquith as his de facto partner. Ms Asquith commenced corresponding with the Registrar seeking that the death certificate be amended to show her as Mr Ross's de facto wife. 2. Ms Asquith was advised by the Registry on 16th April 2014 that it would not amend Mr Ross's death registration to include Ms Asquith as the de facto partner of Mr Ross as the documents she had provided were inadequate to prove that she had been in a de facto relationship with Mr Ross at the time of his death on 4th December 2013. The parties 1. Ms Asquith's application to the tribunal named the Registrar of Births, Deaths and Marriages as the Respondent to the application. The tribunal later agreed to the joinder as Second Respondent of William Leslie Ross, father of the deceased Scott William Ross and of BNR, daughter of the deceased Scott William Ross as the Third Respondent. The tribunal determined of its own motion that as BNR is under the age of 18, an order should be made pursuant to section 64(1) (a) preventing the disclosure of her name as follows: Section 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) ………. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The tribunal also determined to refer to another of Mr Ross's daughters as BCD and the mother of one of Mr Ross's daughters as RAS – in order to avoid identification of Mr Ross's minor children. The tribunal also makes an order under section 64(1) (a) prohibiting the disclosure of the name of the persons referred to as BCD and RAS. First Respondent's case 1. Prior to the hearing of the matter the first Respondent,the Registrar of Births, Deaths and Marriages, advised the tribunal and the parties that it would not appear at the hearing and would submit to the orders of the tribunal. Second and Third Respondents' cases 1. The Second and third Respondents, Mr Scott Ross's father and daughter, maintained that Mr Scott Ross had not been in a de facto relationship with Ms Asquith. Documents before the tribunal 1. The tribunal had the following documents before it: * Ms Asquith's Application for Review to the tribunal with annexures dated 13th August 2014; * Section 58 documents filed by First Respondent; * Statutory Declaration of William Ross; * Statutory Declaration of BNR; * Letter from Crown Solicitor received at NCAT on 14th November 2014; * Submissions from 2nd and 3rd Respondents; * Affidavit with annexures of Elana Scoufis 14th October 2014 for First Respondent ; * Letter from MLC; and * Copy of Facebook post on Scott Ross's timeline. Application for Review 1. In her application for review made to the tribunal Ms Asquith states as follows. I am seeking an Urgent Review of the decision on the following grounds, I need to apply for letters of administration in my de Facto partners estate within 12 months of his death. I have filed a Caveat but am unable to make the full application without a full death certificate. I am the De Facto Partner of Scott William Ross, deceased, of 2/5 Ocean Street Evans Head. Scott died suddenly of unnatural causes on 04 December 2013. When the death registration was filled in by the funeral Director and Scotts Father Bill Ross, they recorded Scott's marital status as Married instead of separated but not divorced and in a de Facto relationship with me. When I requested both the funeral home and Bill Ross correct this, they both refused and Bill said that was what he wanted the certificate to show. I later discovered that when the administrator (Linda) entered the data from the death registration into the BDM system, she knew that my partner was not married and so recorded him as separated contrary to the registration form, but still did not record me as the De Facto partner. I have requested that BDM amend this certificate and take appropriate action in regards to the falsification of the certificate and they have refused. I wish to have BDM directed to record my details as the De Facto partner. I have supplied documentation including the following to support my application - A copy of the interpretation act that is used when determining de facto status to show I meet the criteria of determining a De Facto relationship as no particular finding in relation to any of the matters is necessary but the fact that I meet all but one of the factors is compelling. Statements from Bill Ross to police to state that he knew I was living with Scott and had in fact visited our home we shared together. This also shows that he was not supportive of the relationship but that is irrelevant. Statement from Kym Ross to show that she was also aware of the relationship and that we had moved in together and had mutual care of (one of Mr Ross's daughters) when (that daughter) visited us. Copy of a utility not already provided to BDM in both mine and Scotts name for our address. Text messages showing the emotional and financial involvement not provided to BDM Response to my complaint to dept justice re falsification of death registration outlining criminal matters that this potentially involves. Legal fees paid by me in relation to the estate Correspondence to BDM in complaint form dated 3rd and 6th of August, 21st July and 19 June 2014 Request in stat dec form made in June to add additional information to initial request to have the certificate amended, including assorted attachments to verify De Facto Status, including the tenancy agreement signed by Scott on behalf of my business, police documentation showing me as the de Facto and the complaint sent to the Attorney General by me Response to initial request for amendment dated 16 April 2014 Initial application for amendment including a stat dec, the funeral notice showing I was acknowledged as Scotts partner as published by the funeral home, both mine and Scotts licenses showing our mutual residential address, a medical form filled in by scott in his own hand listing me as his partner and next of kin, confirmed by text message. Home contents policy in both our names and the home insured being our mutual address, and a bank statement of Scott's confirming the address along with a phone account in my name confirming my address. All of this is overwhelming evidence that we lived together, shared expenses, purchased a car together, which is also addressed in Bill Ross' statement, and shared care of the children, also confirmed in both Bill Ross' and Kym Ross' statements. I would also like a direction to BDM to investigate the false stat dec on the death registration and subsequent correspondence from Bill Ross refusing to add me as a De Facto partner even though it can be proven that he was aware of the nature of the relationship. I would like a direction made asap to amend the certificate and make it available to me so as to not further hinder the application of administration for this estate. Role of the tribunal 1. Section 56 of the Births Deaths and Marriages Registration Act 1995 provides for administrative review by the Civil and Administrative Tribunal of a decision of the Registrar under the Act. 2. The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. 3. The Tribunal may affirm, vary or set aside the original decision. 4. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. Relevant Legislation 1. The legislationrelevant to registration of a death is set out in the Births Deaths and Marriages Registration Act 1995 and the Births Deaths and Marriages Registration Regulation 2011. Births Deaths and Marriages Registration Act 1995 Section 42 Registration (1) The Registrar registers a death by making an entry about the death in the Register including the particulars required by the regulations. (2) However, if the particulars available to the Registrar are incomplete the Registrar may register a death on the basis of incomplete particulars. Section 45 Correction of Register (1) The Registrar may correct the Register: (a) to reflect a finding made on inquiry under Division 2, or (b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. (2) The Registrar must, if required by a court, correct the Register. (3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry. Births Deaths and Marriages Registration Regulation 2011 Clause 15 Registration of death For the purposes of section 42 of the Act, the following particulars are required: (a) the date and place of death of the deceased, (b) the sex, date of birth (or age at death) and place of birth of the deceased, (c) the usual occupation of the deceased before death and whether or not the deceased was a pensioner or was retired immediately before death, (d) the date of disposal of the remains of the deceased, (e) the full name and business address of the funeral director or other person who arranged for the disposal of the remains, (f) if the deceased was born outside Australia, the period of residence in Australia of the deceased before death, (g) whether or not the deceased was of Aboriginal or Torres Strait Islander origin, (h) whether, immediately before death, the deceased was married, divorced, widowed or in a de facto relationship or had never married, (i) if the deceased had married, the date of marriage (or age of the deceased at the date of marriage), the place of marriage and the full name (including, if applicable, the original surname) of his or her spouse (and such particulars in relation to each marriage of the deceased if the deceased had married more than once), (j) the full name (including, if applicable, the original surname) of any de facto partner of the deceased, (k) the full names, sex and date of birth (or age) of the children (if any) of the deceased (including deceased children), (l) the full name (including, if applicable, the original surname) and occupation of each parent of the deceased. 1. The Interpretation Act 1987 sets out at section 21C the meaning of de facto partners and de facto relationships. 21C References to de facto partners and de facto relationships (1)Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or (b) the person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) bthe nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (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. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. 1. The parties agreed at hearing that section 21C of the Interpretation Act set out the applicable definitions of de facto partner and de facto relationship for the purposes of the tribunal's decision. Evidence of Ms Asquith 1. Ms Asquith's evidence consisted both of the submissions sent to theRegistrar of Births, Deaths and Marriages as set out above and oral evidence. In her evidence Ms Asquith addressed the matters set out in section 21C(3) of the Interpretation Act 1987 as evidence that she and Mr Ross had a relationship as a couple and were in a de facto relationship. Duration of Relationship 1. Ms Asquith told the tribunal that she and Mr Ross had met via internet dating in December 2008 or January 2009. At this time, they were both separated from their respective spouses though not divorced.Ms Asquith had ceased living with her husband in 2007 and Mr Ross had ceased living with his wife in March 2008. They maintained a secret relationship over a period of time. They would meet on the Gold Coast for weekends once every couple of weeks. They would share the cost of their holidays together. She had first visited him in the High Street Lismore property he was renting in June 2010. She said that Mr Ross was a very private person and he had received a lot of backlash from his family as result of his previous relationships. She said her siblings in New Zealand were aware of her relationship with Mr Ross. She said that her Czechoslovakian friend Ms Laila Asante had come to stay with them in October 2013 in the Evans Head property. She was still staying with them and sleeping downstairs at the time of Mr Ross's death in December 2013. Ms Asante had provided an email to Ms Asquith confirming the existence of their relationship. Ms Asquith put this email before the tribunal. Financial matters; andOwnership, use and acquisition of property 1. Ms Asquith said that she and Mr Ross had made a number of agreed joint purchases. She and Mr Ross had purchased their gas bottles,their home contents insurance and funeral policy in joint names. Mr Ross had become involved in her guttering business and was providing local knowledge to enable them to build it up on the NSW North Coast. They had put the tenancy at the Evans Head property in her company's name. They had purchased a car. The finance was in Scott's name in Queensland however the car was registered in her name in New South Wales. Scott used the car to drive to work. Scott had taken out a new credit card for them to buy furniture for the Evans Head property- including a bed and a lounge suite. They had paid cash for a table and had made some other home furnishing purchases on eBay. Mr Ross was going to support her while she got her guttering business moved and established. 2. The property in Evans Head had three bedrooms. She and Scott shared a bedroom upstairs and a wardrobe. There were two bedrooms downstairs. Ms Asante had stayed downstairs in one of the bedrooms for the first couple of months. Every second weekend Scott's daughter had stayed with them. She had asked to live full time with them. Reputation and public aspects of the relationship 1. She said that Scott had been a private person and not inclined to be public about his relationships. She had been to Scott's work parties in Lismore. She had met his previous partner, mother of his daughter BNR. 2. Lorraine Smith was the wife of Scott's best friend, Jamie.Ms Asquith had been to Lorraine Smith's birthday party. Lorraine had also been present when she and Scott discussed having more children. Lorraine Smith had posted to Scott's Facebook Timeline after his death recognising the depth of Scott's relationship with Ms Asquith and their plans to get married once things had settled down. 3. Ms Asquith noted that MLC had recognised her as a de facto wife and was providing her with 25% of Scott's superannuation death benefit. 50% was going to his wife Kym and 25 % to his daughter BNR. 4. Ms Asquith confirmed that she and Mr Ross had a sexual relationship. Mutual commitment to a shared life 1. Ms Asquith had advised Centrelink that she was living with Mr Ross in September 2013 at the Lismore property. Centrelink had reduced the family tax benefit payable to her. Ms Asquith said that their commitment to a de facto relationship had commenced or about 11th October 2013 when they had moved into the Evans Head property.Ms Asquith said thatMr Ross had proposed marriage to her in late September 2013 and they planned to marry on a cruise ship in October 2014. 2. She and Scott had made plans to marryin BNR's presence. Ms Asquith pointed to Scott's nomination of her as his next of kin and carer on his medical record. She referred to the wills that they had drafted jointly. She said that Scott had had his will witnessed when he went to the Coastguard and that he had put it in the wardrobe. However it had disappeared sometime after his death between 4 December 2013 and 13 December 2013. She said that the document before the tribunal which was unsigned was a copy of the will – although the signed version had been a little bit different. 3. Ms Asquith referred to text message exchanges between herself and Scott which were put before the tribunal, demonstrating the depth of their personal commitment 4. When they moved to Evans Head they commenced sharing the house work. 5. Under cross-examination Ms Asquith was asked whyshe had not told anyone previously that she and Mr Ross had started seeing each other in 2009. Mss Asquith said that Scott had been private about their relationship. She was also asked why she had not provided the information sought by Births Deaths and Marriages since January 2014 such as evidence of joint bank accounts. She indicated that these were requests not requirements from Births Deaths and Marriages. When she was asked why she had not attempted to adduce any evidence supporting her position from other persons Ms Asquith said that she had attempted to get evidence from Mr Ross's workmates however Jamie, his friend, would not support her and had made defamatory and derogatory comments about her. 6. She said that she and Mr Ross had set up a joint bank account in around August 2013 with a view towards saving for the bond for a joint property. She was asked why she had refused to provide the joint funeral policy to the tribunal and responded that she did not wish to rely on it. She had not shown Mr Bill Ross, father of Scott Ross, the funeral policy because he hadn't asked to see it. She said that Bill Ross wanted to pay for his son's funeral because he would get a discount. 7. She had not previously raised the fact that Scott Ross was working in her business providing local knowledge because she had not previously been asked about this. She did not see the need to tell anyone that they were developing a business together. She agreed that Scott would speak to his father a couple of times a week on the telephone. He had not told his father about their relationship until they had signed the tenancy agreement on the Evans Head property. 8. She had not checked the forms submitted by Bill Ross to the funeral director at the time of Scott Ross's death to check the information provided in relation to whether or not Scott Ross was married separated or in a de facto relationship. Ms Asquith's submissions 1. Ms Asquith made the following submissions. She said that the tribunal should consider that there had been a de facto relationship between herself and Mr Scott Ross. She made submissions about the evidence of the matters set out in section 21C of the Interpretation Act which supported the submission that she and Mr Ross had a relationship as a couple. a) The duration of the relationship She and Mr Ross had known each other since 2009. However Ms Asquith said that their commitment to a de facto relationship commenced in October 2013 when they moved into the Evans Head property together. b) The nature and extent of their common residence Ms Asquith said that she and Mr Ross had selected the Evans Head property to enable them to be upstairs while Mr Ross's daughter and family members could stay downstairs. Each of his two daughters could have a bedroom downstairs. They had purchased furniture specifically for this joint residence at Evans Head. c) Whether a sexual relationship exists 1. Ms Asquith said that a sexual relationship existed between her and Mr Ross since they had met through Internet dating and had started meeting for weekends away together. d) the degree of the financial dependence or interdependence and any arrangements for financial support between them. 1. Ms Asquith noted that Mr Ross had paid the rent on their residences as she was re-establishing her businesses. They had acquired assets on the basis that they would be financially interdependent. Mr Ross had taken out a credit card to purchase furniture for the Evans Head property. Their house and contents insurance had been joint. Mr Ross had been paying the loan for the car while it was registered in her name. When she had moved into the Lismore property with Mr Ross she had notified Centrelink that Mr Ross was supporting her financially. The Evans Head tenancy had been entered into by her business while both of them were to live there. 2. MLC's payment to her of a proportion of Mr Ross's death benefit reflected their financial interdependence. 3. As a result of their financial interdependence she was now left with some significant joint debts. 4. Ms Asquith referred to Bennett's case which set out the factors and the circumstances which should be taken into account in determining whether two unrelated people had a relationship as a couple and that a de facto relationship existed. SeeBennett v Registrar, NSW Births Deaths and Marriages and Another [2006] NSWADT 33. 5. She said that the tribunal should be satisfied that the relationship with Mr Ross met the definition of section 21C (2) and (3) in that they had had a relationship as a couple living together. Accordingly the Registrar of Births, Deaths and Marriages should record her as Mr Ross's de facto wife at the time of his death. This would be the correct and preferable decision. Evidence of William Ross 1. Mr Bill Ross is the father of the late Scott William Ross.Mr Ross lives in Iluka, northern NSW. 2. Mr Ross obtained leave to be joined as the Second Respondent to these proceedings. 3. Mr Ross provided a Statutory Declaration to the tribunal. He was also cross examined under oath by telephone. Mr Ross's statutory declaration is extracted as follows: I considered it improper that Emmelline Asquith be recorded on Scott Ross's death certificate as his de facto. As far as I was aware Ms Asquith knew Scott for only about four months before his death. Scott and I were very close. He wasn't just my son but was my best mate also. We would speak at least 3 or 4 times a week on the telephone and we would catch up whenever I was in Lismore which was about once a week. I first met Emily Snow in about the middle of September 2013 when Scott turned up at my place with Emily, simply introducing her as "Emily". Scott hadn't previously mentioned Emily to me and didn't refer to her as his girlfriend. Around the end of September Scott told (me) he was going to move out of his place in High St, Lismore and was moving to Evans Head. Scott mentioned that Emily wanted to move to Evans Head and that he and Emily would share the rent and expenses of the place, saying to me it would be cheaper for him to share as he would be able to save some money. I remember telling Scott that he was mad to move and told him he should stay in Lismore. Sometime after first telling me he was moving to Evans Head, and prior to moving, Scott rang me and told me he had found a townhouse in Evans Head and was moving as soon as he could. I asked Scott if he and Emily would be living together to which he replied no they would just share the premises. Emily would be upstairs and he would have the downstairs with his daughters, BNR and BCD on the weekends he had them. He also told me that Emily would only really be there on weekends as she would be away on business during the week. I visited Scott in Evans Head three times when my two granddaughters, BNR and BCD were staying with him. Each time I stayed overnight. Emily was there on two of those occasions with her daughter. Just before Scott died I saw him at work in Lismore on Tuesday the 3rd of December and arranged to stay at his place the following weekend with my grandchildren BNR and BCD. Scott died the following night. On the morning of the 4th December Scott's friend Jamie informed me that Scott had passed away the previous night. I couldn't go to Scott's unit as the police were conducting an investigation and weren't allowing anyone in. I went over to my partners house and stayed the night. On Friday I met with Jamie at his place to organise Scott's funeral. Emily turned up at Jamie's house and started screaming and yelling at Jamie and saying that she should have been put down as next of kin. At this stage I was not aware that Jamie had given my name to the police and the funeral home as next of kin however it was not surprising to me as I was Scott's father and Scott's mother had passed away two years earlier. I specifically recall Emily saying words to the effect "I have to be recorded as next of kin". I was quite shocked at the way Emily behaved and her demands. I stated to Emily words to the effect "I am Scott's father and I am his next of kin". After a while Emily calmed down and we all went to the funeral home in separate cars. After meeting at the funeral home we sat down with the funeral director, Malcolm Guthrie. Malcolm asked me details for the funeral notice and death certificate. Emily was there when Malcolm asked "is Scott married" to which I replied "yes". Emily did not make any objection or mention that she was Scott's de facto. After taking all the details from me Malcolm handed the papers to me and said to me words to the effect "is this all true and correct" to which I replied "yes" and signed the papers. Emily was present the whole time and did not complain about any of the information I gave to the funeral director. A couple of days later I went back to the funeral home with Emily, BNR and BNR's mother, RAS to pick out the coffin. Whilst there Emily told me that she had an insurance policy that would pay for the funeral and coffin. When I asked to see the policy Emily told me she couldn't show me as it was in Sydney. After Scott's funeral Emily told me that the wake wasn't good enough and that Scott would have wanted an all-night party with free beer and a band playing Guns and Roses music. When I asked her where the money would come from for a party she told me that there was an insurance policy that would cover it all. When I asked for proof of the policy Emily told me again she couldn't show me. About a week after the funeral Emily contacted me and asked to meet. I met Emily at the East Lismore Bowling club car park. Emily said to me "We have to get things sorted out, we have to get the money and put it in my account". I said to Emily "what money, Scott only has super, long service leave and a bit of holiday pay". Emily said to me "no there is a lot more". Emily contacted me a number of times over the next week or two demanding to have the money sorted out. After a while I refused to talk to her anymore. Emily came to my caravan a few days later and threw down a piece of paper saying "this is Scott's will". I looked at the paper and said to Emily "this is not signed and not dated" Emily replied to the effect "it doesn't matter it is still a legal document. Sometime later I was contacted by a representative from MLC who told me about Scott's superannuation and death benefit in the amount of $395,000.00. The representative also advised me to go and see a lawyer. Emily started contacting me two or three times a day demanding she go on the death certificate so she could claim Scott's insurance. I got to the stage where as soon as I would see Emily's phone number I would cancel the call. I have been informed by my son's wife, Kym that Emily has sent her over 150 messages of abuse. Stating such things as "Scott divorced you three years ago, you aren't married to him". Kym has informed me she has changed her phone number to stop the abuse. I am aware that Emily has advertised to administer my son's Estate. I have sought legal advice about this and have lodged a Caveat with the Supreme Court. In my opinion Emily was not Scott's de facto and is only seeking to be listed on Scott's death certificate for financial gain. Evidence of BNR 1. BNR is the daughter of the late Scott William Ross.BNR who is under 18 years of age gave evidence and was cross examined under oath in the presence of her tutor. 2. BNR provided the tribunal with a statutory declaration. 3. The following is an extract from BNR's statutory declaration. 2. The first time I heard about Emily Asquith (Emily Snow) was when I spoke to my dad on the telephone whilst on a school trip to Great Keppel Island on 10 September 2013 when he told me that he had gone to Dreamworld with a lady called Emily. 3. Around 16 September 2013 I was introduced to Emily Snow as "my friend" by my father while at dinner with my dad and sister at a Tavern in Queensland. 4. A little while after that dad told me he was looking to move to Evans Head for a change of scenery and that Emily's company would be paying half the rent and he would cover the other half. He also told me that Emily would have to travel between Noosa and Sydney for her business and that she would stay with him in Evans Head when she got the chance to. Dad told me he and Emily were dating and he wanted to see where things would go. He also told me that if things did not work out between him and Emily he would take over the lease at Evans as it wouldn't be hard to find a roommate. 5. After dad had moved into the house at Evans Head he told (my sister) and I that we would have our own rooms. As it turned out a friend of Emily's, Laila Asante was in my room and I had to share with my sister. Dad told us that this would only be temporary as Laila would be heading home to Czechoslovakia soon. 6. Just before dad died I had arranged to start a trial of living with dad for one week on and then one week off when I would live with mum. 7. I had only started the trial one week before dad passed away and since my dad's death I have only gone to the property at Evans Head once to pick up my belongings. Aside from this one time I have not seen nor spoken to Emily and have been living with my mother (name deleted by tribunal) in Casino. 8. It is my opinion that dad and Emily Snow were in the very beginnings of a relationship and whilst they may have been boyfriend and girlfriend were not in a de facto relationship as I understand a de facto relationship to be. 1. BNR confirmed that when she had stayed at the Evans Head property Ms Asquith and Dad had slept upstairs – while she had slept downstairs in one of the 2 downstairs bedrooms. She had seen only her father's clothes in the wardrobe upstairs. 2. She said she had asked her father, then Ms Asquith, if she could move in to live with them at Evans Head. 3. BNR confirmed that on an occasion when she was staying at Evans Head she had heard her father and Ms Asquith having a conversation in the kitchen about babies. She had heard her father say to Ms Asquith "Marry me then." Submissions for the Second and Third Respondents 1. The Second and Third respondents made the following submissions in writing. 1. In order to determine whether the decision made by the Registrar of Births, Deaths and Marriages to refuse to amend the register to include, as a particular on the death certificate of Mr Scott Ross the name of the applicant as his de facto partner, is the correct and preferable decision, the Tribunal must, having regard to the material before the Tribunal, be able to form an opinion as to the relationship between the applicant and the deceased. 2. The second and third respondents assert there was no de facto relationship between the applicant and the deceased or alternatively that there is insufficient material to determine the nature of the relationship between the deceased and the applicant. 3. The Births, Deaths and Marriages Act 1995 does not define "de facto relationship". 4. The respondent then provided an analysis of the issues set out in section 21C(3) of the Interpretation Act 1987 as suggesting there was no de facto relationship between the Applicant and Mr Ross. Respondents' submissions on the issues in section 21C (3) Duration of the relationship 1. The evidence of both the second and third respondents is that as far as they were aware a relationship between the deceased and the applicant commenced sometime in September 2013. In an email to Kerry Freeman, NSW Registry of Births Deaths and Marriages dated 13 march 2014 the applicant states "Scott and I were involved for a number of years prior to moving in together". Aside from the e mail referred to above there is no other mention by the applicant in any of her evidence as to the duration of her relationship with the deceased and I submit that the tribunal would find that the applicant's relationship with the deceased was of a very short duration in the order of 3 to 4 months only. Although duration of a relationship is not definitive it is submitted when a relationship is of very short duration it is a factor that should be given considerable weight. Nature and extent of their common residence 1. The deceased and the applicant commenced residing at the same address in Evans Head or about 11 October 2014. After commencing to reside at Evans Head the applicant continued to run her business, and travelled for this purpose. The applicant does not address whether or not she maintained a separate residence or where she resided whilst away from Evans Head. There are a number of different addresses used by the applicant after she commenced residing at Evans Head including 7 Nita Place, Bomaderry NSW 2541 (certificate of registration) and 2a, 4 Action St, Noosaville (place of business/residential tenancy agreement). The degree of financial dependence or interdependence, and any arrangements for financial support, between them 1. The applicant has provided little evidence in support of this matter. In particular there is no evidence to suggest the sharing of utilities, household items or groceries. There are no joint bank accounts. The will the applicant claims was made by the deceased is unsigned and undated and there is no evidence that the deceased intended the document to be his last will and testament. The determination in respect of the death benefit by the trustee of the deceased's superannuation fund is under review and is not determinative of the relationship between the applicant and the deceased. The ownership, use and acquisition of property 1. There is no jointly owned property. The certificate of registration for the vehicle the applicant states she and the deceased purchased together is in the applicant's name only. The lease for the Evans Head property is in the name of the applicant's business iCatch Guttering of 2a, 4 Action St, Noosaville. The degree of mutual commitment to a shared life 1. The second respondent acknowledges that the deceased was seeing the applicant. He does not agree however that the applicant and the deceased lived in a genuine domestic relationship. The applicant asserts that she discussed marriage with the deceased. Again, there is no evidence aside from the applicant's statement to support this. The care and support of children 1. The third respondent in her statutory declaration does not support the applicant as living in a de facto relationship with her father referring to them as "boyfriend and girlfriend". The applicant states that she had the mutual care of the deceased's children. It is submitted that the evidence does not reveal any relationship, or any intended relationship between the applicant and the deceased's children. In fact, the third respondent states that since her father's death aside from attending the property to collect her things she has not seen nor spoken to the applicant. The performance of household duties 1. There is no evidence on this matter. The reputation and public aspects of the relationship 1. There is very little evidence, in fact none, on the reputation and public aspects of the relationship. 2. The respondent provided oral submissions in support of the written submissions. The respondent noted that the applicant had not provided evidence that her relationship with Mr Ross had commenced in 2009. She was aware earlier in 2014 that there were matters that she could bring to Births Deaths and Marriages to support her assertion of the existence of a relationship but had not done so. It was accepted that Ms Asquith and Mr Ross had commenced to cohabitate in October 2014. However it was a very short relationship and other legislation looked at a period of two years or the fact of children to demonstrate de facto status. The car was shown as belonging to Ms Asquith at a Bomaderryaddress. There was no evidence of financial dependence. The alleged joint bank account had not been demonstrated with documentary proof. There was no evidence of Mr Ross and Ms Asquith purchasing joint assets. The alleged joint funeral policy had not been produced. There was very little evidence concerning the care and support of children by the deceased and Ms Asquith. There was no evidence of Scots friends acknowledging the relationship or supporting Ms Asquith's claim. 3. No weight could be put on the MLC decision to allocate 25% of Mr Ross's death benefit to Ms Asquith as this was based on the material put before the trustee by Ms Asquith. No weight could be put on comments on Facebook because of the need to interpret the meaning of the Facebook comments posted. The correct and preferable decision was to affirm the decision of the Registrar Births Deaths and Marriages that the death certificate should not be altered to show Ms Asquith had been Mr Ross's de facto partner. Findings of Fact. 1. The tribunal considers that it should be satisfied of the matters put before it in terms of section 140 of the Evidence Act. 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 1. The tribunal makes the following findings of fact in relation to the matters set out in section 21 C of the Interpretation Act 1987. 1. Ms Asquith and Mr Ross were not married to one another. Nor is there any assertion that they were related by family - see section 21C (2) (b) the relevant law. 2. Mr Ross and Ms Asquith lived together at the Evans Head property commencing October 2013 – see 21 C (2) (a) "living together". Duration of the relationship 1. The tribunal accepts Ms Asquith's evidence that Mr Ross's and Ms Asquith's mutual commitment commenced at least from 11 October 2013 when they commenced a lease at the Evans Head property. The nature and extent of their common residence 1. The Evans Head property was intended by both Mr Ross and Ms Asquith to be a common residence. The factors pointing to this commonality of residence are the application made in Mr Ross's name; the taking of the lease in Ms Asquith's company name; the intention that Mr Ross's daughters should visit them there; Mr Ross's nomination of the Evans Head property as his address on his drivers licence. Whether a sexual relationship exists 1. The tribunal accepts Ms Asquith'sunchallenged evidence that a sexual relationship existed. This evidence is corroborated by the content of the SMSs presented to the tribunal which the tribunal also accepts are texts sent by Ms Asquith and Mr Ross to each other. The texts demonstrate a mutual emotional commitment. The degree of financial dependence or interdependence, and any arrangements for financial support, between them 1. The content of some of the texts also demonstrates interweaving of their financial affairs with discussion of payments to be made and budgeting matters. For example one text from Mr Ross to Ms Asquith reads: Let's sell all the cars and you can get a territory diesel 7 seater and ill get the fg falcon that's here in Lismore lol 1. The tribunal was presented with evidence of the lease application and lease agreement which showed Mr Ross as applicant for the lease, but Ms Asquith's business as the tenant. The home contents insurance is in both names. 2. The tribunal was provided with a copy of a gas bottle supply utilityin both names for the Evans Head property. 3. The tribunal is satisfied from the SMS texts that Mr Ross and Ms Asquith made a mutual decision to purchase a car. The car was then registered in Ms Asquith's company's name while Mr Ross undertook the finance repayments. 4. The tribunal was not presented with any evidence of joint bank accounts or a joint funeral policy. 5. Ms Asquith alleged that Mr Ross had made a will in terms similar to an unsigned will in the documents before the tribunal which was witnessed "at the coastguard" and placed in the wardrobe used by both Mr Ross and Ms Asquith at the Evans Head property. Ms Asquith told the tribunal that the executed will nominated her as Mr Ross's partner. Ms Asquith told the tribunal that the executed will was removed from the wardrobe by a named person after Mr Ross's death. The tribunal cannot be satisfied on the basis of the evidence before it to the requisite standard of the existence of such a will. The degree of mutual commitment to a shared life 1. Ms Asquith has provided her unchallenged assertions of commitment to a shared life. For Mr Ross's part, the tribunal refers to Mr Ross's nomination of Ms Asquith as his next of kin and carer, describing her as "partner" for the purposes of medical treatment. In an entry dated 27th February 2014 Detective Senior Constable Linton, who investigated and reported on Mr Ross's death, notes that Mr Ross had nominated his father Bill Ross as next of kin number 1 and Ms Snow as next of kin number 2 in his tenancy application for the Evans Head property. The care and support of children 1. The tribunal accepts Ms Asquith's evidence, that it was intended that Mr Ross's daughters would sleep in the lower floor bedrooms of the Evans Head home and,corroborated by the evidence of BNR, there had been discussion of Mr Ross's daughter coming to live with them more permanently. The tribunal is not clear what parenting duties Mr Ross undertook in relation to Ms Snow's 18 month old child. The performance of household duties 1. There is only Ms Asquith's unchallenged assertion that she and Mr Ross shared the household duties at the Evans Head property. The reputation and public aspects of the relationship 1. The tribunal accepts that Mr Ross had not told his father Bill Ross of the commitment to an ongoing relationship with Ms Asquith. The tribunal also considered BNR's statement that she thought that Mr Ross and Ms Asquith were in the beginnings of a relationship, like girlfriend and boyfriend as she understands the term de facto. However BNR also told the tribunal that she had heard Ms Asquith and Mr Ross discussing wedding plans. 2. The tribunal notes that no external evidence was called by Ms Asquith to confirm the reputation and public aspects of her relationship with Mr Ross. The tribunal accepts however that the Facebook post on Mr Ross's timeline indicates an acceptance of the commitment of Mr Ross's relationship with Ms Asquith by its author. Findings on facts and law 1. Having made the above determinations of fact, the tribunal has turned its mind to their application to the law. Section 21 C sets out the following 4 steps in determining whether a person is a de facto partner of another person. * a person is the de facto partner of another person if the person is in a registered relationship (not relevant in this matter) or is in a de facto relationship with the other person. * a person is in a de facto relationship with another person if they have a relationship as a couple living together and they are not married to or related to each other. The tribunal accepts that Ms Asquith and Mr Ross were not married or related to each other. * in determining whether 2 persons have a relationship as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case. Matters a) to i) have been set out above. * No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. (underlining is the tribunal's) 1. Accordingly the tribunal has considered all the circumstances put before it of Ms Asquith and Mr Ross's relationship, including its findings on matters a) to i) in considering whether or not Mr Ross and Ms Asquith were in a relationship as a couple and hence de facto partners in a de facto relationship. 2. The tribunal is satisfied that the relationship of commitment had been of short duration.Mr Ross and Ms Asquith had lived together in a common residence for a very brief period. 3. Perhaps as a result of this brief cohabitation in the same area of NSW, the relationship was of limited reputation with friends and family of Mr Ross and Ms Asquith. 4. It appears to the tribunal however that Mr Ross and Ms Asquith had a very close emotional attachment which they underlinedin their brief period living together with financial interdependency including the lease of their home at Evans Head and a car purchase. 5. The tribunal notes that some of the material before it upon which the tribunal's decision is based, such as the text of SMSs between Ms Asquith and Mr Ross and a joint utility account - were not before the Registrar of Births Deaths and Marriages when the Registrar made its previous decision. 6. In the circumstances, the tribunal is satisfied that in all the circumstances, Ms Asquith and Mr Ross had a relationship as a couple living together and that they were de facto partners in terms of section 21 C of the Interpretation Act. 7. Accordingly, the correct and preferable decision is that the decision of the Registrar, NSW Births, Deaths and Marriages to decline to record Ms Asquith as Scott William Ross's de facto partner is set aside. Ms Asquith should be recorded by the Registrar, NSW Births, Deaths and Marriages as Mr Ross's de facto partner at the time of his death. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2015