Another burial dispute. In Britt v Office of the State Coroner [2022] WASCA 75 Mitchell JA states
[37] The appellant, Ms Britt, is the mother of Ricky Chapman, who died without a will on 20 April 2022. The second respondent, Ms Schoppe, claims to have been in a de facto relationship with Mr Chapman at the time of his death.
38 Ms Britt and Ms Schoppe are in dispute about the deceased's funeral arrangements. Ms Britt wants the deceased's body to be buried on Kaurna land in South Australia. Ms Schoppe wants the deceased's body to be cremated and his ashes released at the beach in Western Australia.
39 On 7 June 2022, the primary judge heard and determined the dispute, finding in favour of Ms Schoppe. His Honour ordered that the deceased's body be released to Ms Schoppe and that she have carriage of his funeral. Ms Britt now appeals against the primary judge's orders.
40 In my view, in the circumstances of the present case, the deceased's body should be released to the person who appears, on the current state of the evidence, to be most likely to be granted administration of the deceased's estate for her to make the relevant funeral arrangements. In the circumstances of this case, that person will be Ms Schoppe if she and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death.
41 I have taken a different view to Murphy and Beech JJA in relation to the proper construction of the primary judge's reasons for decision. I am not satisfied that the judge made any finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020. I would uphold the ground of appeal which contends that the primary judge erred by failing to make that critical finding.
42 However, considering the evidence for myself, it does appear to me that the most probable inference, on the evidence before the primary judge, is that Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death. Ultimately, I would exercise the court's discretion in the same manner as the primary judge and release the deceased's body to Ms Schoppe. Consequently, in my view, the appeal should be dismissed.
Background
The deceased
43 The deceased was born in October 1989 in South Australia, and so was 32 years old at the time of his death. The deceased's father predeceased him. The family of the deceased's father reside in New South Wales. The deceased had one younger brother and three younger sisters. He maintained a close relationship with his brother (who is currently imprisoned in South Australia).
44 The deceased had been in the care of a man named 'Bob' from the age of 12 years. He moved to Queensland with 'Bob' when he was around 13 or 14 years old. He then moved from Queensland to Western Australia approximately seven years ago. Shortly after moving to Western Australia, the deceased was imprisoned from October 2015 to April 2019. The deceased suffered non-fatal injuries from a bullet wound in December 2020 on the occasion when Ms Schoppe's stepfather was shot and killed. He was again incarcerated between December 2020 and April 2021.
45 The deceased was working as a fly in/fly out worker at a mine site at the time of his death. He had experienced seizures which had prevented him from working for about six months prior to his death. He died after suffering a seizure at work on 20 April 2022, some eight days after his return to work on the mine site.
Coroner's decision
46 On 12 May 2022, a coroner decided that a certificate should be issued under s 29 of the Coroners Act 1996 (WA), releasing the deceased's body to Ms Schoppe. The coroner proposed that he would, on 18 May 2022, issue the certificate to Ms Schoppe.
Primary proceedings
47 On 17 May 2022, Ms Britt commenced proceedings in the General Division of this court, seeking substantive orders that the deceased's body be released to her and that she have carriage of the deceased's funeral.
48 On 18 May 2022, the primary judge granted an interim injunction restraining the coroner from issuing a certificate pursuant to s 29 of the Coroners Act or releasing the deceased's body to Ms Schoppe until further order of the court. His Honour also made orders programming the matter for final hearing on 27 May 2022 which included directions that: 1. Each of Ms Schoppe and Ms Britt file all affidavits on which they sought to rely by 4.00 pm on 25 May 2022; and 2. Each of Ms Schoppe and Ms Britt notify the other in writing of their intention to cross-examine on any affidavits by 12.00 pm on 26 May 2022.
49 For reasons which are not entirely clear from the primary court file, the hearing did not occur until 7 June 2022. It may be noted that the appellant produced two further affidavits (of Ms Sullivan and Ms Walsh referred to at [86] - [88] and [89] - [94] below) and written submissions only on 6 - 7 June 2022.
Primary judge's orders
50 On 7 June 2022, the primary judge heard and determined Ms Britt's application for final relief. His Honour ordered that: 1. Ms Britt's application be dismissed. 2. The deceased's body be released to Ms Schoppe. 3. Ms Schoppe have carriage of the deceased's funeral arrangements.
Legal framework
51 The relevant legal framework may be summarised as follows.
Scope of the court's discretion
52 Section 4 of the Administration Act 1903 (WA) preserves the jurisdiction of the Supreme Court to determine who should have carriage of a funeral and where and how the body of a deceased person should be dealt with.
53 The common law has long recognised the existence of rights and duties in connection with the burial of a corpse. An executor of the will of a deceased person has a duty to arrange for that person's funeral and a concomitant right to custody of the body for that purpose. The position is more complex when a person dies without leaving a will or naming an executor.
54 Single judge decisions in Western Australia have held that the court will ordinarily order that the body be released to the executor of the deceased's will or, if there is no will, the person with the highest ranking entitlement to apply for letters of administration. The person to whom the body is released will then be left to determine funeral arrangements That proposition is derived from the decision of Young J in Smith v Tamworth City Council, in which his Honour described the rationale for the general approach in the following terms:
It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, ... the person with the largest interest will normally be the person who is the one expected to bury the body. (citation omitted)
55 The passage just quoted was adopted by Perry J (Millhouse and Nyland JJ agreeing) in Jones v Dodd. In doing so, Perry J observed:
I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration.
56 Jones was a case in which an Aboriginal man died intestate without any significant assets and where there was unlikely ever to be an application for administration. The proper approach in such a case was described by Perry J in the following terms:
Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality. In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.
57 Practical considerations may also be significant in a case where persons with equally-ranking rights to apply for administration are in dispute about funeral arrangements.
58 A number of single judge decisions in other States have recognised the relevance, in disputes about burial, of considerations other than who is likely to be entitled to obtain letters of administration. Relevant matters have been recognised to include, to the extent they are known to the court, cultural considerations, the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased. Regard has also been given to the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties attendant upon competing proposals. Various single judge decisions have recognised that, in some cases, it is not practicable to attempt to resolve disputes as to who has the better claim to be administrator where the proper resolution of the dispute would require substantial evidence and the testing of that evidence. The weight to be attributed to each of the relevant factors mentioned above is to be determined in the particular factual context of the dispute in the case.
59 It appears from the above discussion that the court will ordinarily order that the body be released to: 1. the executor of the deceased's will; or 2. if there is no will, the person who appears on the state of the evidence before the court to be the person who is most likely to receive a grant of administration of the intestate estate (who will ordinarily be the person with the greatest interest in the estate). However, that is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. The approach to be taken, and the weight to be given to the various considerations, depends upon the particular circumstances of the case.
60 In determining the person to whom a deceased's body should be released, the court is not required to make any final determination of who is entitled to the intestate estate or administration of the estate.
61 Often, as in the present case, the court will not be in a position to fairly and properly make a final determination as to who has such an interest or entitlement. Disputes about the release of a deceased's body must necessarily be resolved as soon as possible after the death of the deceased. There will always be an imperative for expedition in disputes of this nature, and it would be an affront to the dignity of the deceased and the emotional well-being of those close to the deceased for the funeral to be delayed for many months after death to allow questions of interest and entitlement to be fairly and properly resolved. That need for an expedited determination of the question of the deceased's funeral arrangements arises at a time when the parties to the dispute are in the midst of their grieving over the loss of a loved one.
62 Particularly where the issue in dispute concerns the existence and duration of a de facto relationship, the fair final resolution of the dispute may require the parties to have the opportunity of presenting a large volume of evidence about the features of the relationship over a period of at least two years. The final determination of that dispute would require the court to give close attention to the detail of that evidence. It is well recognised that, outside the range of obvious cases, the evaluative judgment required in determining the existence and duration of a de facto relationship can be difficult and the characterisation of the relationship attended by a degree of uncertainty. In many such cases, it may be that different decision-makers could reasonably arrive at different conclusions on the same set of facts. In many cases, the fair and proper resolution of disputes as to the characterisation of a relationship between a deceased and another person may take time that is not available to the court.
63 In Burrows, Pullin J observed:
However, I should add that even if the 'common or usual approach' is not a principle of law, it would have to be an extremely rare case to depart from the usual approach. I say this because a person who is granted letters of administration is the person who has the control over the burial arrangements ... If the 'common or usual approach' is not applied on nearly every occasion, then we might soon have the spectacle of intending applicants for a grant of letters of administration seeking injunctions to restrain any dealing with the body until there had been such a grant. That would be a most unsatisfactory course in practical terms. It is much better that the decision be made expeditiously and finally, as has occurred in recent cases. (citation omitted)
64 I agree with Pullin J's observations as to the need for expedition, and that the resolution of the question of the release of a deceased's body cannot await the grant of letters of administration. The considerations to which Pullin J referred in Burrows support the approach of the court making a swift decision as to who appears, on the state of the evidence before the court, to be the person who is most likely to receive a grant of administration of the intestate estate. It would seldom, if ever, be appropriate to await the outcome of a contested application for the grant of letters of administration. However, I would not say that the cases in which the court will depart from the usual approach would be 'extremely rare'. There may be a range of cases where the decision may be properly made by reference to, or having regard to, practical considerations. Examples include cases of a kind referred to at [56] and [57] above, or where those who appear most likely to receive a grant of administration are unwilling or unable to make proper funeral arrangements.
65 Therefore, in determining how the discretion should be exercised in the case of a deceased who dies without a valid will, the court need not, and generally does not, finally resolve disputes as to the existence of an interest in, or entitlement to a grant of administration of, an intestate estate. Rather, the court is concerned with the question of who (if anyone) appears, on the state of the evidence then before the court, to be most likely to receive a grant of administration of the intestate estate. The court will usually determine that question in an expedited summary way without needing to resolve every factual dispute that may be relevant to the grant of administration and without undertaking any extensive cross‑examination.
66 It is then necessary to turn to the provisions of the Administration Act in relation to the grant of administration of an intestate estate.
Provisions of the Administration Act
67 Section 25(1)(a) of the Administration Act empowers the court to grant administration of the estate of a person dying intestate (separately or conjointly) to 'one or more of the persons entitled in distribution to the estate of the intestate' who are over the age of 18 years. The normal approach to the exercise of this power is to grant letters of administration to the person who has the greatest interest as a beneficiary in the intestate estate.
68 Section 14(1) of the Administration Act relevantly provides that, where a person dies intestate without issue (meaning without a lineal descendant), but leaving a wife, a parent and siblings, then:[65] 1. the wife is entitled to all household chattels included in the intestate property; 2. the wife is entitled to the first $705,000[66] of the net value of the other intestate property, together with interest on that sum and half of the net value of the other intestate property over $705,000; and 3. the parent and siblings are entitled to share in the other half of the net value of the other intestate property over $705,000.
69 Section 15(1) of the Administration Act provides that: If the intestate dies leaving a de facto partner but no husband or wife, then where the de facto partner and the intestate lived as de facto partners for a period of at least 2 years immediately before the death of the intestate, the de facto partner shall be entitled, in accordance with section 14, to the intestate property to which a husband or wife of the intestate would have been entitled, had the intestate died leaving a husband or wife.
70 Section 14(1) of the Administration Act also relevantly provides that, where a person dies intestate without a spouse or issue, but leaving a parent and siblings, then:[67] 1. the parent is entitled to the first $56,500[68] of the net value of the intestate property and one half of the net value of the intestate property over $56,500; and 2. the siblings are entitled to share in the other half of the net value of the intestate property over $56,500. 71 Therefore, if Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death, then she would have the greatest interest as a beneficiary in the deceased's estate and would normally be granted administration of the estate. If that were not the case, then Ms Schoppe would have no entitlement to the intestate property and Ms Britt, as the sole surviving parent of the deceased, would have the greatest interest in the deceased's estate and would normally be granted administration of the estate.
Determining the existence of a de facto relationship
72 The terms 'de facto relationship' and 'de facto partner' are defined in s 13A of the Interpretation Act 1984 (WA) in the following manner:
(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.
(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential: (a) the length of the relationship between them; (b) whether the 2 persons have resided together; (c) the nature and extent of common residence; (d) whether there is, or has been, a sexual relationship between them; (e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (f) the ownership, use and acquisition of their property (including property they own individually); (g) the degree of mutual commitment by them to a shared life; (h) whether they care for and support children; (i) the reputation, and public aspects, of the relationship between them.
(3) It does not matter whether: (a) the persons are different sexes or the same sex; or (b) either of the persons is legally married to someone else or in another de facto relationship.
(4) A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
(5) The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.
73 This court has considered the operation of this definition, in the context of family law proceedings, in its two decisions in G v O. The following general principles may be derived from the discussion in those cases: 1. To determine whether a relationship is 'marriage-like' requires an overall assessment of the facts and the relevant elements of the relationship. 2. The concept of a marriage-like relationship involves a consensual union which is intended by the parties to endure. In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage‑like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship. 3. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The parties' common intention may be expressed, or it may be implied from their conduct and communications in all their circumstances. 4. The text of s 13A indicates that there is a difference between persons living together and residing together. Section 13A recognises that it is possible for two persons to 'live together' without ever having 'resided together', so that the former concept is broader than the latter. The former concept would appear to encompass two people, who do not necessarily reside together, sharing their lives.
74 In H v P, Murphy JA (Pullin and Buss JJA concurring) made the following observations, in the context of family law proceedings, as to the assessment of whether and when a de facto relationship has come to an end:
Just as it is difficult to discern when a relationship between two people can properly be said to be 'marriage-like', it can be equally difficult to determine when such a relationship comes to an end. In this respect, there is an important distinction to be drawn between a de facto relationship and a legal marriage. Unlike a legal marriage, which continues despite the absence of any 'marriage-like' characteristics in the relationship, until it is formally dissolved by legal process, a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its 'marriage-like' character continue to exist. ... It follows that when a party to a de facto relationship determines that they no longer wish to live in a 'marriage-like' relationship and conducts their life on that basis, the de facto relationship comes to an end. Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives.
75 It has also been recognised that not every short interruption in a longer de facto relationship will bring the relationship to an end. Not every 'hiccup' in a longer marriage-like relationship will necessarily prevent the overall relationship from being characterised as a single de facto relationship rather than a series of discrete relationships. Depending on the circumstances, interspersed periods of separation may be characterised as merely bumps in the road, rather than the end of one road and the beginning of another. ...
98 Ms Britt deposed that she is an Aboriginal woman of the Kaurna nation, and that the deceased was an Aboriginal man of the Kaurna nation. She deposed that it is important that the deceased be buried rather than cremated as that is the Kaurna cultural practice, which is important to the community and her family. Mr Newchurch is an elder of the Kaurna people and deposed that it is important in Kaurna culture for burial rather than cremation to occur. He deposed that Kaurna funerals are important cultural events, at which large family gatherings are normal. He further deposed that the deceased's funeral on Kaurna land will be well-attended by Kaurna.
99 Ms Britt also deposed that the deceased's younger brother, with whom he had a close relationship, is currently imprisoned in South Australia and so would not have the opportunity to attend a funeral in Western Australia. Ms Britt has given evidence of the brother's distress at the death of the deceased and her concern that if the brother cannot attend the deceased's funeral he will 'struggle significantly more than he is at the moment'.
Ms Britt also deposed that she has health conditions which would prevent her from flying to Western Australia.
100 Ms Schoppe's affidavit deposed that the deceased refused to acknowledge his Aboriginal heritage, and denied being Aboriginal when asked by her family and friends. After he was shot, he told Ms Schoppe that, if he did not wake up from surgery, he would want to be cremated and have his ashes spread along the beach. He had also told Ms Schoppe that he would never want to live back in South Australia because of the bad memories from his childhood. ...
Primary judge's reasons for decision
102 The primary judge gave ex tempore reasons for making the orders releasing the deceased's body to Ms Schoppe. His Honour identified the critical issue as being whether the deceased and Ms Schoppe were in a de facto relationship. After reviewing the evidence and having regard to the factors in s 13A(2) of the Interpretation Act, the primary judge concluded that they were in a de facto relationship. In that regard, the primary judge found it 'particularly persuasive', as an indication that they intended to create a family, that the deceased was excited when he found out that they were pregnant and was devastated when they miscarried.
103 His Honour found that there was a period from late November 2021 ‑ early December 2021 when the deceased and Ms Schoppe were not residing together. His Honour characterised the period as a deterioration in the quality of the relationship, in which both parties were 'trying to work out the relationship', rather than an end to the relationship.
104 The primary judge did not make any express finding as to when the de facto relationship between the deceased and Ms Schoppe began. The primary judge found that 'the longest period that the relationship might be said to exist was from sometime in late January 2020 to the date of Mr Chapman's death' on 20 April 2022. His Honour observed:
[W]hat has been submitted by the plaintiff is that you effectively cannot identify the start date of the relationship as being of the nature of a de facto relationship; however, in determining when the de facto relationship started, that will often be a process of looking back rather than requiring evidence of when they moved in.
105 The primary judge concluded his consideration of the nature of the relationship between Ms Schoppe and the deceased by stating: So that means that I've found that [Ms Schoppe] was in a de facto relationship, and, in those circumstances, that she is entitled to conduct the funeral of Mr Chapman.
106 The primary judge then held, in effect, that there was nothing disclosed in this case which would justify a departure from the common or usual approach that the person with the highest rank to take out administration of the estate will be given carriage of the funeral arrangements.
The appeal to this court
107 On 8 June 2022, Ms Britt instituted this appeal against the primary judge's orders. On that day, an interim order was made staying the enforcement of orders 2 and 3 set out at [50] above and restraining the coroner from issuing a certificate under s 29 of the Coroners Act, until 4.00 pm on 15 June 2022 unless otherwise ordered. An urgent appeal order was also made, programming the appeal for final hearing on 15 June 2022.
108 Unfortunately, due to the late filing of the appellant's case and a proposed amendment to the grounds of appeal after the appellant's case was filed, it was necessary to defer the hearing of the appeal to 20 June 2022. The interim stay and injunction referred to above were extended to 4.00 pm on that date, and subsequently to the determination of the appeal.
109 Ms Britt appeals to this court on the following three grounds: 1. [The primary judge] erred in fact and law when finding that [Ms Schoppe] had been continuously in a de facto relationship with Ricky Chapman (deceased) from, at least, 20 April 2020 until Mr Chapman’s death on 20 April 2022, within the meaning of 'de facto' provided in [s 13A of the Interpretation Act]. 1.1. His Honour erred in law by failing to determine that a de facto relationship between Mr Chapman and [Ms Schoppe] existed from, at least, 20 April 2020 with the consequence that the 2 year requirement in section 14 [of the] Administration Act was not met by the de facto relationship erroneously identified by him. 1.2. His Honour erred in law by making findings regarding the 'indicators' set out in [s 13A(2) of the Interpretation Act] contrary to the evidence before the Court on which His Honour relied when erroneously concluding there to have been a de facto relationship between Mr Chapman and [Ms Schoppe]. 2. [The primary judge] erred in fact when failing to find that any relationship between Mr Chapman and [Ms Schoppe] had broken down in or about late November 2021, prior to Mr Chapman’s death on 20 April 2022. 3. The learned Judge erred in law when failing to exercise his discretion to: 3.1. order the release of Mr Chapman’s body to [Ms Britt]; and 3.2. order that [Ms Britt] have carriage of the funeral arrangements for Mr Chapman according to the customs of the Kaurna Nation in South Australia.
Error in failing to make a finding as to when the relationship began
110 Ms Britt's written submissions in support of ground 1.1 contend that the primary judge erred by failing to make any finding as to when any de facto relationship between Ms Schoppe and the deceased began. In particular, Ms Britt contends that the primary judge failed to make any finding as to whether any de facto relationship had commenced prior to 20 April 2020. Ms Britt submits that it is an error to conflate the start of any kind of relationship between the deceased and Ms Schoppe with the point at which the parties to the relationship began living together in a marriage-like relationship.
111 In my view, ground 1.1 is established to the extent that it asserts the primary judge to have erred in failing to make a finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020. 112 The primary judge's reasons are not directed to that correct legal question in relation to the potential entitlement of Ms Schoppe to the intestate estate. The reasons were rather directed to whether a de facto relationship existed and whether that relationship had ended in November - December 2021. The primary judge did not make any express finding as to the critical issue of when the de facto relationship, which his Honour found to exist, began. That was a fundamental issue as, unless the de facto relationship began prior to 20 April 2020, Ms Schoppe would not have any entitlement to the deceased's estate under s 15 of the Administration Act, and therefore would generally not be granted carriage of the deceased's funeral.
113 The need for Ms Schoppe to establish that she and the deceased had lived as de facto partners for at least two years immediately before the deceased's death was highlighted in the appellant's submissions to the primary judge.[128] In those circumstances, particularly where the primary judge gave ex tempore reasons, the natural starting point might be to read the judge's finding as to the existence of a de facto relationship as an implicit finding that the relationship was of at least two years' duration.
114 However, having regard to the primary judge's identification of the critical issue and to the structure and logic of his Honour's reasoning, I am not satisfied that his Honour made such an implicit finding. At the outset of his reasons, the judge twice identified the essential or principal issue as being whether the deceased and Ms Schoppe were in a de facto relationship. His Honour then directed attention to each of the matters in s 13A(2)(a) - s 13A(2)(i) of the Interpretation Act, so far as they were relevant. Next, the judge considered evidence bearing on whether the relationship had come to an end, before concluding that the relationship was a de facto relationship and that it had not come to an end. That structure of the reasons reveals and reflects the judge's identification of two issues: whether the relationship was a de facto relationship and whether it had come to an end.
115 Moreover, in concluding that the relationship was a de facto relationship, the primary judge found it 'particularly persuasive', as an indication that they intended to create a family, that the deceased was excited when he found out that they were pregnant and was devastated when they miscarried.[133] Ms Schoppe discovered that she was pregnant in June 2020. The judge did not make any express finding that the deceased's response to the pregnancy and subsequent miscarriage shed light on the nature of the relationship as at April 2020. As discussed below, I would make such a finding. However, I do not regard such a finding to be so obvious as to go without saying, so as to be necessarily implicit in the judge's reasons.
116 Further, the importance of showing that a marriage-like relationship existed prior to 20 April 2020 was emphasised at the conclusion of oral submissions advanced by counsel for Ms Britt, just before his Honour began his ex tempore reasons. I would expect the primary judge to have directly dealt with this submission if he had considered and rejected it.
117 It is also significant that the primary judge's reasons did not make any reference to s 15(1) of the Administration Act or to a necessity for any de facto relationship to have subsisted from a particular period prior to the deceased's death.
118 The only reference to s 15 in oral or written submissions was in a footnote to the second of the following quoted paragraphs: [Ms Schoppe] asserts that she was the de facto partner of the deceased for the purposes of the [Administration Act] at the time of his death. [Ms Britt] accepts that, should this Honourable Court determine that [Ms Schoppe] was the de facto partner of the deceased at the time of his death, [Ms Schoppe] would rank above [Ms Britt] for the purposes of the [Administration Act]. (emphasis added)
119 Most of the oral and written submissions of counsel for Ms Britt were directed to whether the evidence established the existence of a de facto relationship at all, or whether any de facto relationship had ended by the time of the deceased's death. The passage quoted from the written submissions at [118] above suggests that these were the only critical issues. I am not convinced that the statutory requirement for any de facto relationship to subsist for at least two years prior to death was given such prominence in the written and oral submissions advanced on Ms Britt's behalf that it can be inferred that the primary judge could not possibly have overlooked the issue.
120 I make full allowance for the fact that the primary judge properly decided to deliver ex tempore reasons at the conclusion of argument in an urgent matter. However, even making that allowance I am unable to construe the judge's reasons as making any express or implicit finding in relation to the critical issue of whether any de facto relationship began prior to 20 April 2020. Given: 1. The absence of any reference in the judge's reasons to the statutory requirement for a de facto relationship to subsist for any period prior to death; 2. The judge's statement that the critical issue was whether or not the deceased and Ms Schoppe were in a de facto relationship; 3. The structure of the judge's reasons and the findings his Honour made as to whether a de facto relationship existed at all and as to whether it ended; and 4. The judge's failure to deal with Ms Britt's submissions as to whether the evidence established that any relationship had begun by 20 April 2020, I cannot construe the reasons, having regard to the context of the preceding oral submissions and written submissions, as implicitly finding that the de facto relationship had subsisted for at least two years prior to the deceased's death.
121 This is sufficient to establish a material express error in the primary judge's reasons, so as to require this court to consider for itself the proper exercise of the discretion. It is unnecessary and (given the urgency of the matter) undesirable for the matter to be remitted, as this court is in as good a position as the primary judge to make findings of primary fact and draw inferences from primary facts established by the evidence. The evidence adduced before the primary court was entirely documentary. No oral evidence was adduced, and no party sought to cross-examine any other party on their affidavits. In light of the established error, I will make my own assessment of the affidavit and other documentary evidence.
122 It is, therefore, unnecessary for me to determine grounds 1.2, 2 and 3 of the appeal. It is also unnecessary to determine ground 1.1 so far as it contends that the evidence was not capable of satisfying the primary court that any de facto relationship commenced prior to 20 April 2020. Ms Britt's arguments as to the facts established directly or inferentially by the evidence will be addressed when I make my own factual findings and consider how the discretion ought to be exercised.
Re-exercise of the discretion
123 I therefore turn to make my own determination of whether, on the evidence adduced in the primary proceedings, Ms Schoppe or Ms Britt was the person who is most likely to receive a grant of administration of the deceased's intestate estate.
124 As the party asserting the existence of the relationship, in a contested application for letters of administration Ms Schoppe would bear the onus of adducing admissible evidence to establish, on the balance of probabilities, that she and the deceased were in a de facto relationship for a period of at least two years immediately before the deceased's death. That is, in the circumstances of this case, Ms Schoppe would bear the onus of establishing that she and the deceased were continuously in a de facto relationship from a period beginning no later than 20 April 2020 up until the deceased's death on 20 April 2022.
125 As noted above, the question at this stage is not whether Ms Schoppe has established an entitlement to administration of the intestate estate by establishing the continuation of a de facto relationship from 20 April 2020 to 20 April 2022. Rather, at this stage the question is whether, on the current state of the evidence, Ms Schoppe is the person who appears most likely to receive a grant of administration of the deceased's intestate estate.
Appellant's submissions
126 In essence, Ms Britt contends: 1. the evidence adduced by Ms Schoppe was insufficiently detailed and specific to support a conclusion that she and the deceased were in a de facto relationship at all; 2. the evidence did not support a conclusion that any de facto relationship began prior to 20 April 2020 (ie at least two years prior to the death of the deceased); and 3. the evidence established that any de facto relationship had broken down in or about late November 2021.
127 Counsel for Ms Britt also contends that the cultural values and spiritual and religious beliefs of the deceased's maternal family (who are Aboriginal people of the Kaurna nation in South Australia) should be given weight. Counsel contends that the maternal family should be given the right to make the deceased's burial arrangements irrespective of the nature and duration of the relationship between Ms Schoppe and the deceased.
Respondent's submissions
128 Ms Schoppe submits that the primary judge made a fair and reasonable decision on the evidence before him. She accepts that '[i]n the innocence of inexperience, I could have worded things better'. However, Ms Schoppe in effect submits that the evidence supports the conclusion that she and the deceased were in a de facto relationship from January 2020 until his death in April 2022.
129 Ms Schoppe also submits that the cultural values and spiritual beliefs of the deceased's family should not be considered because they were not values and beliefs shared by the deceased.
Nature of Ms Schoppe's relationship with the deceased
130 Putting aside questions of when the relationship began and whether it ended before the deceased died, it appears to me on the current state of the evidence that Ms Schoppe was in a marriage‑like relationship with the deceased.
131 The evidence showed that their relationship existed from December 2019 until at least November 2021. During that time, they resided together in the same house, apart from the periods that the deceased was in prison or working away on his fly in/fly out shifts. It is significant that, when Ms Schoppe stayed with her mother to provide comfort and support after the death of her stepfather, Mr Nick Martin, the deceased went with her. Although not expressly stated, it is clearly implicit in Ms Schoppe's evidence that there was a sexual relationship between her and the deceased. The couple's reaction to Ms Schoppe's pregnancy and miscarriage demonstrated a commitment to living a shared life together. Irrespective of whether or not the pregnancy was planned, the reaction to it demonstrated a willingness to start a family together that was indicative of a deep commitment to an enduring relationship with each other. Ms Schoppe's commitment to a shared life with the deceased was also demonstrated by her emotional and (albeit unspecified) financial support for the deceased during his period of incarceration from December 2020 ‑ April 2021 and the period when he was unable to work in the approximately six months prior to his death. The only holiday which they are referred to taking was a holiday together with Ms Schoppe's friends.
132 Counsel for Ms Britt submits that the lack of detail, or any evidence at all, as to the financial relations and other arrangements between the deceased and Ms Schoppe precludes a finding of a de facto relationship. I do not accept that submission. Findings about the living arrangements of and financial contributions by the deceased are not essential to the proper characterisation of the relationship. I accept that matters about which there is no evidence, or where there is an absence of detailed evidence, have the potential to affect the assessment of the nature of the relationship. However, the task of the court is to characterise the nature of the relationship by reference to the evidence that was adduced, rather than speculate about matters not in evidence. On the current state of the evidence, it appears to me that the relationship between Ms Schoppe and the deceased is properly characterised as a de facto relationship. Did the de facto relationship end before the deceased's death?
133 Ms Schoppe's affidavit deposed to the fact that the deceased never moved out of her Mirrabooka house and the fact that they maintained their relationship up until his death. She deposed only that they had arguments that would last for a day or so. The evidence is expressed in very general and often conclusionary terms. However, if that evidence were to be accepted then it would indicate that the previously described relationship, which may be characterised as a de facto relationship, continued up until the time of the deceased's death. ...
Who appears more likely to be granted administration?
145 In my view, the most probable inference, on the evidence before the primary judge, is that Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death.
146 Therefore, it appears, on the current state of the evidence, that: 1. Ms Schoppe has an interest in the deceased's intestate estate under s 14 and s 15 of the Administration Act, so as to enable her to be granted administration under s 25(1)(a) of that Act; 2. Ms Schoppe has the greatest interest in the administration of the deceased's intestate estate under the Administration Act; and 3. Ms Schoppe is the most likely person to be granted administration of the deceased's estate.
Manner in which the discretion ought to be exercised
147 There is no sufficient reason in the present case to depart from the ordinary approach of releasing the deceased's body to the person who appears most likely to be granted administration of the deceased's estate (Ms Schoppe) for her to make the relevant funeral arrangements.
148 I accept that the evidence, referred to at [98] above, of the cultural importance of burial to members of the deceased's maternal family is a factor counting in favour of the deceased being released for burial in South Australia. The fact that members of the deceased's family in South Australia may be unable to attend a funeral in Western Australia, as noted at [99] above, is another practical consideration counting in favour of releasing the deceased's body to Ms Britt for burial in South Australia.
149 On the other hand, there is also evidence, referred to at [100] above, that the deceased did not acknowledge his Aboriginal heritage, has no continuing connection with South Australia and wished for his remains to be disposed of in the manner proposed by Ms Schoppe.
150 On balance, I do not consider the evidence of these competing practical matters to justify a departure from the usual approach to the exercise of the court's discretion. In all of the circumstances, I consider that the appropriate exercise of the court's discretion is to order that the deceased's body be released to Ms Schoppe, who should have carriage of the funeral arrangements.
