GFR v SRP [2023] TASSC 15 concerns the estate of HMW (the deceased), who died intestate on 4 September 2021. The central issue is whether SRP, the mother of the deceased’s child and HMW’s former cohabitant, was his spouse under the Intestacy Act 2010 at the time of his death, entitling SRP to HMW’s entire estate.
Legal Framework:
Under the Intestacy Act 2010, the term “spouse” extends to individuals in a “significant relationship” that either led to the birth of a child or lasted for a minimum of two years. In this context, SRP claimed that she was in a significant relationship with the deceased at the time of his death, which would entitle her to the estate under section 13 of the Intestacy Act. However, GFR (the deceased’s father) submitted the relationship had ended before the deceased’s death, disqualifying SRP from being considered a spouse.
The Relationships Act 2003 (Tas) does not define a “significant relationship,” but it outlines several factors to consider when determining if a relationship between two individuals qualifies as a “significant relationship.” Section 4 of the Act provides:
“4 Significant Relationships
(1) Following this Act, a significant relationship refers to a connection between two adult individuals –
(a) who share a couple-like relationship; and
(b) who are not legally married to each other or related by blood.
(2) If a significant relationship is formally registered under Part 2, the evidence of registration serves as proof of the relationship.
(3) If a significant relationship is not registered under Part 2, the Court must consider various factors surrounding the relationship to determine if two individuals are in a significant relationship, including but not limited to the following relevant aspects in a specific case:
(a) the length of the relationship;
(b) the nature and extent of shared living arrangements;
(c) the existence or absence of a sexual relationship;
(d) the level of financial dependence or interdependence, as well as any financial support arrangements between the parties;
(e) the ownership, use, and acquisition of assets;
(f) the extent of mutual commitment to a shared life;
(g) the care and upbringing of children;
(h) the completion of household responsibilities;
(i) the public perception and outward representation of the relationship.
No determination concerning any of the aspects mentioned in s(3)(a) to (i), or any combination of them, is deemed essential for establishing a significant relationship. A court assessing whether such a relationship exists may consider these aspects and assign appropriate weight to any matter according to the case’s specific circumstances.
Background:
SRP and the deceased lived together as partners from 2015 until shortly before his death and had a child together in 2019. Following the deceased’s death, GFR, the deceased’s father, believed that the child, as sole heir, was entitled to inherit the deceased’s entire estate. Consequently, GFR sought letters of administration for himself and the deceased’s surviving brother to oversee the management of the estate.
Initial Trial Outcome:
In GFR v SRP [2023] TASSC 15, Holt AsJ found that the significant relationship persisted until the deceased’s death, granting letters of administration to SRP, who is entitled to the whole estate because of intestacy.
Appeal Issues:
In GFR v SRP (No 2) [2024] TASFC 6, the appellant submitted that the relationship had ended before the deceased’s death; therefore, the child should inherit the estate. If SRP was not the spouse, the deceased’s parents were next in line to apply for letters of administration under the Probate Rules 2017.
Court’s Analysis:
A “significant relationship” hinges on mutual consent, which the respondent submitted was evident until the deceased’s death. Had that relationship ended, the estate would have been transferred to the child, requiring the appointment of an administrator. In this scenario, GFR, the deceased’s father, was considered the appropriate individual to apply for letters of administration. The court ultimately dismissed SRP’s claim that only a litigation guardian representing the child had the authority to contest this assertion.
Conclusion:
This appeal concerns properly handling intestate estates when a contested qualifying relationship exists. GFR v SRP [2024] TASFC 2 asks when a de facto or significant relationship ceases. The key points are:
Cessation of De Facto Relationships:
In the case of Hibberson v George [1989] NSWCA 100, the New South Wales Court of Appeal established that a de facto relationship could end when one party chooses to live apart— even temporarily— to evaluate the nature of the relationship. The court clarified that while physical cohabitation is not a strict requirement, both parties must intend to continue the relationship mutually.
Similarly, in S v B [2004] QCA 449, the Queensland Court of Appeal determined that a de facto relationship may cease when one party takes definitive action based on their intention to end it. The Court can reach this conclusion without the other party’s consent, provided the broader circumstances support it.
The Importance of Mutual Consent:
Brownell v Robinson [2017] TASSC 5 emphasised that mutual consent is fundamental to a significant relationship. If one party withdraws consent, the relationship ends, regardless of physical separation.
By August 30, 2021, the couple’s relationship had significantly deteriorated. Infidelity, sexual assault, and emotional estrangement had fractured their bond to the point where they no longer shared a residence, finances, or household duties. Both individuals had openly expressed to others that they believed the relationship was over. Although reconciliation was theoretically possible, neither party was committed to rebuilding a shared life.
Court’s Conclusion:
The Full Court found that Holt AsJ erred in finding that a substantial relationship subsisted before the deceased’s death, as the significant relationship had ceased by the morning of August 30, 2021, when the respondent returned to her parent’s home.
Further Litigation Potential:
The respondent may pursue damages claims, equitable property interests, or maintenance under relevant legislation. The Full Court recommended resolving these matters through mediation.
The appeal was allowed, and the Court set aside prior orders and granted letters of administration to and make an order granting letters of administration to one or more appropriate administrators.
Costs
The Full Court allowed the appeal in GFR v SRP [2024] TASFC 2, initially granting letters of administration to the appellant and ordering the respondent to pay the appellant’s appeal costs. However, in GFR v SRP (No 2) [2024] TASFC 6
the Full Court later amended the decision, appointing the Public Trustee as administrator and adjourning all costs questions. Both parties subsequently sought competing orders for costs, primarily from the estate of HMW.
The appellant argued that the respondent should pay his first-instance party/party costs and that the estate should pay his costs not recovered from her. The respondent opposed these claims, sought solicitor/client costs for both parties from the estate, and requested an indemnity certificate under the Appeal Costs Fund Act 1968
The Public Trustee supported the appellant’s position and emphasised that neither party should bear personal financial burdens, given the proceedings benefited the deceased’s grandson. Disputes remain over cost allocation, including whether the respondent should bear appeal costs or if the estate should cover both parties’ expenses.
The Full Court upheld GFR v SRP [2024] TASFC 2, requiring the respondent to pay the appellant’s appeal costs and granting her an indemnity certificate under the Appeal Costs Fund Act, making the following additional orders:
1. The respondent must pay the appellant’s first-instance costs on a party/party basis.
2. HMW’s estate will pay the appellant’s unrecovered first-instance costs on an indemnity basis.
3. The respondent will be indemnified from HMW’s estate for appeal costs paid to the appellant, not covered by the Appeal Costs Fund.
4. HMW’s estate will pay the appellant’s unrecovered appeal costs on an indemnity basis.