Dragarski v Dunn [2019] NSWSC 300

Supreme Court New South Wales

Medium Neutral Citation: Dragarski v Dunn [2019] NSWSC 300 Hearing dates: 20 March 2019 Date of orders: 21 March 2019 Decision date: 21 March 2019 Jurisdiction: Equity Before: Pembroke J Decision: Summons dismissed Catchwords: DE FACTO RELATIONSHIP – next of kin – whether subsisting de facto relationship – burial rights – deceased intestate Legislation Cited: Interpretation Act 1987 (NSW) Cases Cited: Bezjak v Wyatt [2018] NSWSC 199 Smith v Tamworth City Council (1997) 41 NSWLR 680 Category: Principal judgment Parties: Nikola Dragarski – plaintiff Sharon Dunn – first defendant H Parsons Pty Ltd – second defendant Representation: Counsel: Mr G Campbell – for the plaintiff Dr C McConaghy – for the first defendant

Solicitors: Foye Legal – for the plaintiff New South Wales Bar Association – Pro Bono Scheme File Number(s): 2019/082283

Judgment 1. The plaintiff seeks a declaration that he is the next of kin of the deceased, Melissa Dunn, who died earlier this month. The deceased died intestate and the dispute has arisen, not over her assets, but over the right to control the form of disposal of her body. The contest is between burial or cremation. The issue is between the plaintiff, who is the father of a child of the deceased, and the deceased's mother. 2. The usual order of precedence among relatives in relation to control of the disposal of a body is that the ranking of next of kin follows the order: spouse (including a de facto partner), child, parent and sibling: Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693-4. The sole question for determination is one of fact, namely, whether the plaintiff was the de facto partner of the deceased at the time of death. 3. The considerations that are relevant to that determination are set out among the nine criteria stipulated in s 21C(3) of the Interpretation Act 1987 (NSW). None of those matters is decisive by itself. The criteria are inclusive but not exhaustive. They all, however, suggest the necessity for an enduring and continuing course of conduct and behaviour: Bezjak v Wyatt [2018] NSWSC 199 at [48]. 4. A conclusion that a couple are in a de facto relationship involves consideration of the circumstances in which they lived their lives. It is quite possible in cases such as this, where it is understandable that emotions run high, that one party may convince himself or herself that the relationship was as he thought it to be. The fixity of views in relation to the existence of a de facto relationship by one party sometimes tends to reveal the propensity of the human mind to believe what is advantageous for that person in a particular situation. 5. This case came on urgently in the duty list and the hearing was conducted on limited evidence. There was no opportunity for any witness to be tested by cross-examination and numerous statutory declarations by friends or relatives were tendered. In circumstances such as this, it is necessary to give the untested assertions of friends and relatives less weight than they might be given if there had been a chance for the evidence to be given and tested in court orally. 6. I do not dismiss the weight to be given to the statutory declarations, but in reaching a decision as to what is more probable than not in relation to the true relationship between the plaintiff and the deceased, it is necessary to pay particular regard to the contemporaneous objective evidence. In particular I have had regard to the documentary evidence, especially the evidence from independent sources. 7. The plaintiff's relationship with the deceased commenced in about 2003. He says they started to live together in about 2010. Their child, Bianca, was born in 2011. The deceased had a son from a previous relationship who is now almost 17 years old. The relationship was undoubtedly a de facto relationship when it commenced. In March 2016 the Plaintiff and the deceased separated. In August she moved out and commenced to reside in her own rental accommodation at Dapto. 8. The plaintiff continued to spend time with the deceased and visited her at Dapto. Indeed, it seems as if their sexual relationship recommenced although they lived apart. I should say immediately that, despite some emphasis being placed on the fact of a sexual relationship, it is not by itself determinative. I do not place any more weight on it than other evidence pointing to the true nature of the relationship. 9. In his statutory declaration made on 12 March 2019 the plaintiff stated that he 'considered' that they had resumed their relationship. These things can sometimes be one-sided, notwithstanding that there is a sexual connection. The evidence tends to suggest in this case that it was one-sided. In March 2018, the deceased left Dapto and moved back to the plaintiff's home. But the inference from all of the evidence suggests that she did so, not for the purpose of rekindling their de facto relationship but for purposes related to her daughter Bianca, and access to her. I have no doubt that the plaintiff wanted the relationship to be re-established. The evidence suggests that the deceased had not reached that conclusion by the time of her death. 10. When the deceased was admitted to the Wollongong Hospital the client registration form recorded that the person for notification was the deceased's mother. This is not determinative, although it is some indication of the true position. It seems likely that the mother provided the information on the basis of which the client registration form was completed. Among other things, what seems more probative is the clear evidence that in January 2019 the deceased requested Centrelink to appoint her mother to act on her behalf in relation to the benefits to which she was entitled. Centrelink confirmed on 18 January 2019 that the deceased's mother was now authorised to act on behalf of the deceased. 11. It is also relevant to note that Dr Quentin de Havilland wrote on 17 March 2019 that the deceased 'told me specifically that she was separated from her de facto since 2016'. The evidence did not indicate the capacity in which Dr De Havilland acted, either as a doctor for the deceased or a doctor for the deceased's mother, but his statement is probably more indicative of the true position than some of the statements by old school friends, acquaintances and neighbours who asserted in multiple statutory declarations that the relationship was continuing. 12. By January 2019 the deceased was aware that her condition was terminal. It frequently happens that the proximity of death focuses the mind on the issues that really matter. On 9 January 2019 the deceased posted a message on Facebook which said 'I am still at his house we still not together though. Kids are great'. 13. On January 10 she messaged the plaintiff's sister saying "Yes I am staying with Nicky. We have worked a lot of things out. We are happy where we are at the moment. He has been great". I do not regard that as determinative of the existence of a de facto relationship. 14. The fact is that the relationship had been extremely troubled and had broken down. The plaintiff clearly wanted to resume it; the deceased appears to have been less certain. It is natural that once the deceased was admitted to hospital in such a serious condition, a compassionate and emotional man like the plaintiff would go out of his way to attend to the deceased and be kind to her. The fact that the deceased said 'We have worked a lot of things out (and) we are happy' does not in my view resolve the question. The deceased's Facebook profile recorded at the time of her death that her status was 'single'. The Facebook friends whose names appear in the profile include the deceased's mother but not the plaintiff. 15. There are other documentary indications of the true position. The deceased was a member of an on-line dating website on or about 8 May 2018. Her website page remained active and was extant as at 13 March 2019. She did not share a bank account with the plaintiff and the address provided is that of her mother. She did not share her on-line banking log-on details with the plaintiff. She received single parenting payments from Centrelink. And she received a further benefit known as a Centrelink Family Assistance Benefit as a single parent on the basis of payment as to 56 per cent for the daughter Bianca and 100 per cent for the son, Jai, from a previous relationship. Final orders had been made in the Federal Circuit Court of Australia on 2 May 2017 in relation to the division of responsibility between the plaintiff and the deceased for their daughter, Bianca. 16. As I said, the inference as to the reason for the deceased moving back with the plaintiff from about March or April 2018 is that it related to access by the deceased to their daughter. It seems that there may have been a history of the plaintiff creating difficulties for the plaintiff's access. Orders of the Federal Circuit Court made on 10 May 2016 required the plaintiff to return Bianca to the mother by a specified time and date. The parties subsequently consented to final orders for parenting arrangements. 17. I repeat that I have not placed undue reliance on the conflicting assertions by friends and relatives in the many statutory declarations that were supplied. However, I have sought to glean from those competing accounts such common threads based on the probabilities that appear likely. 18. Adopting that approach, it seems likely on the balance of probabilities that there is substance in the statement by the deceased's sister, Erin Dunn, that the plaintiff never let the deceased have her 50 per cent time with Bianca; that she had to resort to going around to the plaintiff's home to be with Bianca; and that she always insisted that they never restarted their relationship and slept in separate rooms. I reiterate that the fact of a sexual connection does not seem to me to be inconsistent with that description of the relationship. Another longstanding friend of the deceased stated that the deceased had said to her that she was only living back at the residence of the plaintiff for the sake of their daughter. 19. The assertions, reflections and speculations of neighbours who could not know what was going on inside the front door of the plaintiff's home seem to me to suffer from an inherent unreliability. I have taken them into account but ultimately they have not been persuasive. For those reasons, in this difficult case for all concerned, I have reached the conclusion that the summons should be dismissed. 20. I wish to add that the first defendant was assisted by counsel who appeared pursuant to the Bar Association's pro bono scheme and that counsel was very helpful in putting together at short notice evidence and submissions which have assisted the resolution of the case. I should not omit to mention counsel for the plaintiff who was equally helpful and industrious. The second defendant did not appear and was content to accept the result. 21. I order that the summons be dismissed. I discharge the injunction against the second defendant. In the particular circumstances of this case I make no order as to the costs of the proceedings. 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: 22 March 2019