Clyde Jones had a secret sexual relationship with Katy, a 25-year-old blind kangaroo, without the knowledge of his wife or the kangaroo's owners, the neighbors. Clyde suffered a fatal heart attack during a roo rooting session with Katy. The neighbors have now sued Clyde's wife Ethel, asserting that as Katy's owners they are entitled to an inheritance from Clyde due to the existence of a de facto domestic relationship between Clyde and Katy under succession law. Although absurd, the lawyer finds that Australian courts have defined de facto relationships broadly, without requiring all legal criteria to be met, so the neighbors' claim may have legal merit and settlement is recommended

1. Can Roo Rooting Give Rise to Sustainable
Succession Rights Under Australian Tax Laws?1
December 19, 2015
Background Facts: The following background facts are stipulated for the purpose of this analysis.
• Clyde and Ethel Jones are a married couple with two adult children, Dick and Jane who live on a semi-
rural property where they have some domestic livestock. They have retired early on the success of Clyde’s
invention of an add-on for Xero software. His net worth is literally EUR 200 million.
• Gretchen Fitzpatrick and Gertrude Fitzmichael [the “Neighbors”] are a pair of lesbians whom have been
cohabitating for twenty years and have adopted twin girls, Fook Yu and Fook Me who are still in high
school.
• The Neighbors have a twenty-acre property where they operate a Kangaroo rescue. They have
approximately twenty kangaroos and three wallabies on their property including Katy, a twenty-five-
year-old blind kangaroo.
• Unbeknownst to Ethel, or the Neighbors, Clyde was a diehard Roo Rooter who had been carrying on a
twisted, depraved, and nefarious sexual relationship with Katy, literally an egregious serial Roo Rooting
[we don’t have any need to describe the details of the relationship, suffice it that you can watch their
videos here.
• Clyde was discovered dead in Katy’s cage one afternoon with his trousers around his ankles and Katy was
muzzled. After a careful investigation, the authorities determined that Clyde suffered a fatal heart attack
after Katy kicked him in the chest during an exuberant roo rooting session.
1
[Note: The topic is obviously satire at one level, however, based upon a review of the applicable statute, regulatory and
judicial authority, the question may not be so absurd. This is actual excerpt from a paper I am writing as part of a CTA3
course…now you see the absurdity of US tax practice can do to a practitioner. Further, portions of the analysis may be
attributed to “ Defining De Facto” Peiros and Smyth [Taxation in Australia, December 2015 at 344-346]

2. • The neighbors have sued Ethel Jones asserting that they, as the owners of Katy, on her behalf are entitled
to an inheritance share from Clyde due to the existence of a proper “de facto” domestic relationship
between Clyde and Katy under the Succession and Wills Acts.
• Initially, Ethel Jones thought the Neighbors had gone completely “bat shit” until they read the Neighbors
complaint in the lawsuit, and candidly are in a state of shock and panic.
• Ethel Jones has come to your firm, Cheetem, Steal and Hyde and asked to represented in defending the
lawsuit. The Managing Partner of your firm could hardly contain himself from laughing and has
“volunteered” you to spend the best holiday weekend of the year in the office reviewing the matter and
providing him with the basis for a response to the court the following Monday [the fine gentleman must
truly have it in for you. Please provide your analysis and recommendations to him.
Conclusion
As absurd as it sounds, I recommended that our firm seek to mediate the issue and reach an acceptable settlement
with the neighbors on the grounds as the Neighbor’s claim has merit, and might be sustained by the Court.
Background and Analysis:
While most of the civilized world have reached accommodation of “civil unions”, registered domestic
partnerships, same sex marriage [recently expanded to include third, so called “neutral genders” the law with
respect to de facto domestic relationships is far from clear under Australian state a federal statutes where in
excess of thirty definitions can be found to exist
2
.
The common elements in the analysis seem to be
• the nature and extent of cohabitation;
• the duration of the relationship;
2 S 5AA of the Succession Act 1981 (Qld); s 32DA of the Acts Interpretation Act 1954 (Qld); ss 4AA and 60EA of the Family Law
Act 1975 (Cth); ss 20, 2E and 2F of the Acts Interpretation Act 1901 (Cth); s 1 of the Superannuation Industry (Supervision) Act
1993 (Cth); s 3 of the Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); s 11A of the Veterans' Entitlements Act
1986 (Cth); s 21C of the Interpretation Act 1987 (NSW); s 32G of the Probate and Administration Act 1898; s 21C of the
Interpretation Act 1987 (NSW); s 4 of the Property (Relationships) Act 1984 (NSW); s 3 of the Trustee and Guardian Act 2009
(NSW); s 169 of the Legislation Act 2001 (ACT); s 44 of the Administration and Probate Act 1929 (ACT); s 7 of the Family Provisions
Act 1969 (ACT); s 7A of the Wills Act 1936 (SA); s 4 of the Inheritance (Family Provision) Act 1972 (SA); ss 11, 11A and 118 of the
Family Relationships Act 1975 (SA); s 4A of the Superannuation Act 1988 (SA); s 4 of the Wills Act 2008 (Tas): s 4 of the
Relationships Act 2003 (Tas); s 2 of the Testator's Family Maintenance Act 1912 (Tas); s 3 of the Administration and Probate, Act
1958 (Vic); s 3 of the Wills Act 1997 (Vic); s 3 of the Superannuation (Portability) Act 1989 (Vic); s 3 of the Guardianship and
Administration Act 1986 (Vic);

3. • the existence of a sexual relationship;
• the degree of financial ties between the two persons, including ownership, use and
acquisition
• of property;
• the degree of mutual commitment to a shared life, including the care and support of
each other;
• the care and support of children;
• the performance of household tasks; and
• the reputation and public aspects of their relationship;
• the two people are not married to each other or related by family; and
• the persons can be legally married to others at the same time.
Due to the predilection of the courts not to invade the private lives and bedrooms of consenting
adults [query does this extend to livestock?] the analysis can be rather difficult. To that end,
much of the case law examines what is meant by "genuine domestic basis", and how to
distinguish it from a sham or a casual relationship, or simply a business relationship or other
relationship of convenience.
The courts have found that de facto relationships take many different forms and, when
attempting to define the relationship in question, one side frames their assertions with a focus
on individual factors in isolation and attributing to each factor a degree of importance the
assertion of the absurd becomes logical. [A key element to the defense of this claim is going to
involve a holistic analysis of the relationship rather than taking the factor by factor approach. The
risk lies in situations where the court makes a value judgment in each case, having regard to a
variety of factors relating to the particular relationship.
The decisions show that none of these factors are critical or essential and "a genuine domestic
relationship" can be constructed from any permutation of the elements. It does not appear to

4. be much of a leap to extend the definition beyond “people” to include domestic livestock
[thought such analysis is an entirely distinct legal question.]
In Summers v Garland3
, the court found that a 16-year de facto relationship existed even though
the couple did not share any finances, did not operate a joint bank account, did not own any
property together, did not declare each other as spouses for ATO or Centrelink purposes, and did
not share a bedroom. The court held that the couple satisfied the key personal factors of
presenting as a couple to the world at large; and providing support to each other over a long
time, "but in some respects the relationship was less than a complete merging of lives and
interests"
In Bar-Mordecai v. Hillston4
the man was 36 and the woman was 72, and the relationship lasted
for 11 years. They kept the relationship a secret from some people, made statements to
government officials inconsistent with being in a relationship, there was no written record of
their relationship anywhere (letters, wills, tax returns etc.), but they were openly affectionate in
front of others. They lived together and were said to share expenses over that time. It was
alleged that she was financially exploited by him and he was her relationship, she paid money to
him either as rent or contribution to expenses, and overall they were happy. The neighbors
thought they were "a couple".
The Court of Appeal held that. "they intended to have a lifetime of mutual cohabitation" and a
de facto relationship was established. Given the Information on the hospital forms as early as
March 2011, which was 17 months before [Sharon's] death, and the fact that the evidence of a
number of witnesses was not dealt with at all or was dealt with by the primary judge in a minimal
way, I consider that the judge did not in fact assess a significant body of evidence.
3
[2006] QSC 085
4
[2004] NWSCA 65

5. The NSW Court of Appeal said that:
“over 11 years, the two people so melded their social, sexual and financial
affairs as to constitute themselves as a de facto couple. The relationship
went on for so long and Its mutually satisfying aspects were too significant
to view It as a naked plan of exploitation ... relationship Is not necessarily t
because of bouts of selfishness or infidelity"
In particular, he did not take that evidence into account appropriately when determining the
degree of mutual commitment, issues of cohabitation and the reputation and public aspects of
the relationship before he concluded that the life the couple shared together was more
committed in the early years and 'perhaps in the last two or three months of Sharon's life'."
Lyons J found the primary judge placed significant weight on the financial and the doctor (for
which he was eventually struck off the medical roll). The day after she died, another woman
moved in with him.
Contrast this with Jonah & White5
, where the man and woman had an affair for over 17 years.
Throughout the relationship, he lived with his wife, who was unaware of the other woman. He
spent two or three days’ spouse. That grant was successfully challenged by Sharon's mother,
Daphne, and two years after the death, the grant to Kent was revoked, and Daphne was granted
letters of administration on the basis that she was next of kin and entitled to Sharon's estate, not
Kent.
Kent appealed the revocation on grounds, on the basis that the primary judge erred in finding
that Kent was not a de facto spouse within the meaning of s SAA of the Succession Act 1981 (Old)
by placing disproportionate weight on evidence related to financial and property matters and
insufficient weight on evidence of the other factors, particularly he did not address why he
discounted the mutual care and support and reputational aspects of the relationship, especially
5
[2012] FamCAFC 200

6. where it has been determined that "how the couple presents to the public, will be the most
decisive consideration". Lyons J found Kent's support of Sharon through her terminal illness
spoke "volumes in terms of his actual level of commitment to her".
The Judge further found that not all of the legislative criteria are "required to be present before
a finding can be made that a couple are living together on a genuine domestic basis [which might
be extended to domestic livestock??], there was no necessity for there to be any intermingling
of finances and property". every couple of weeks with the woman and mutual care and support
and reputational.
When determining error by the primary they went on holidays together regularly. He provided
her with regular financial support and gave her $24,000 towards the purchase of her house. It
was decided that there was no "merger of two lives into one" and the absence of the public
aspect was fatal to the initial finding (and on appeal) of the de facto relationship.
When undertaking a detailed analysis of the evidence, Lyons J found that there were a significant
number of documents corroborating Kent's position which had not been referred to in the
judgment. In particular, there were medical records signed by Sharon in March 2011 in which she
referred "the Issue before this Court Is not simply an issue as to a different view of the evidence
which was before the ... judge [who revoked Kent's judge in the application of the criteria,
especially as to the emphasis placed on the financial and property matters Lyons J found:
" it is not necessary for all the criteria to be present in order for a
declaration to be made. It Is clear that the question as to whether two
people are living together as a couple on a genuine domestic basis Is to be
determined by circumstances which include but are not limited to those
listed in [the legislative provisions]." to Kent as her de facto. Her Honor
found the statements by Sharon were a "significant admission by [Sharon]
and that the primary judge needed to assess that evidence or deal with it
in some respect".

7. In Dow v Hoskins6
and Re Estate of Sigg (dec'd)7
, it was held that "living together" may be
something other than as full time, sharing fully domestic, financial and other responsibilities. But
if the couple is not cohabiting all of the time, "... the extent of their cohabitation and emotional
dependence and commitment must be such as to show the world that they [are] a couple".
In Paterson v Bunter8,
the woman moved in with the man, they had sexual aspects relationship,
she paid money to him either as rent or contribution to expenses, and overall they were happy.
The neighbors thought they were "a couple". The WA Court of Appeal held that. "they intended
to have a lifetime of mutual cohabitation" and a de facto relationship was established.
Thus, it is clear that the Courts have been “all over the map” and the combination of crafty
counsel and a liberal judge could could certainly cause the roo rooting t be determined to be a
de facto domestic relationship.
".
6
[2003] VSC 20
7
[2009] VSC 47
8
[2000] WASC 83