Thursday, 10 April 2008

Case: Not a defacto relationship

In Barker v. Linklater, a decision of the Queensland Court of Appeal, Dorothy Barker sued the estate of her deceased friend, trying to assert that they were in a long term lesbian relationship.

To establish a claim under the Succession Act, the appellant needed to prove she was the deceased’s spouse, namely her de facto partner, and that they had lived together as a couple on a genuine domestic basis for a period of at least two years and which ended on the deceased’s death. The definition is contained in s.32DA of the Acts Interpretation Act which provides a long list of types of factors to be taken into account.

Ms Barker was unsuccessful at trial and appealed.

The Court of Appeal upheld the decision of the trial judge, who found:

-Dorothy Barker and the deceased were friends for a period in excess of 30 years;

-They shared the same residence for about 18 years;

-They did not share the same bedroom;

-They did not refer to each other as partners and there was no manifestation to the public at large that they were a couple;

-There were no overt signs of affection;

-While there was evidence of passionate kissing in 1977, there was no evidence of an ongoing sexual relationship;

-They kept their bank accounts and finances separate;

-Cars were purchased by each in the name of one only;

-The house was in the name of the deceased as was the telephone, and she paid the rates and telephone bills;

-Dorothy Barker kept her superannuation payout in an account in the name of her daughter and son-in-law;

-In the Will the deceased described Ms Barker as her carer, consistent with the deceased’s statement when asked by the Public Trustee as to the nature of the relationship;

-The parties shared household tasks;

-Ms Barker paid rent to the deceased and most expenses were shared equally.

The judge held that while there was clear evidence of companionship over a long period and some evidence of a sexual relationship at some time, evidence that the appellant had assisted with work around the house and evidence that the appellant was the deceased’s carer in her last years, the judge was not satisfied that that was sufficient to establish that the appellant was the deceased’s de facto partner at the time of the death. The judge was also not satisfied that the appellant was the deceased’s spouse, and dismissed the claim under the Succession Act.

The judge also dismissed a claim for a declaration for a constructive or resulting trust, also upheld on appeal.Muir JA said:




[Ms Barker]and the deceased each made contributions to the running expenses of the household during their cohabitation. Their contributions did not differ to any significant degree from contributions of the kind commonly made by persons sharing rented accommodation or, for that matter, by a person renting accommodation in a house owned by the other occupant, save that the appellant maintained the yard. Those are not circumstances in which a monetary or other contribution is made without an intention that the other party should enjoy the benefit provided by the contribution. Nor do such circumstances render it unconscionable for a house owner such as the deceased to retain whatever benefits may have been provided by the other person during the cohabitation. Any denial by the deceased that the appellant had an interest in the house would not have been unconscionable. The circumstances under consideration, in themselves, would not give rise to a reasonable expectation on the part of either of the appellant or the deceased that the appellant had acquired an interest in the property.

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