Fairburn v Healey

[2009] WASC 114

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   FAIRBURN -v- HEALEY [2009] WASC 114

CORAM:   HASLUCK J

HEARD:   21 APRIL 2009

DELIVERED          :   7 MAY 2009

FILE NO/S:   CIV 1222 of 2006

BETWEEN:   PETER FREDERICK FAIRBURN

Plaintiff

AND

GLYNN DAVID HEALEY
Defendant

Catchwords:

Succession - Probate and letters of administration - Application by plaintiff for grant of letters of administration of his deceased daughter's estate - Counterclaim by defendant of entitlement as de facto partner of deceased - Various evidentiary issues as to whether the alleged de facto relationship, if any, endured for two years immediately before the death of the intestate - Elements for consideration in determining whether a relationship may be characterised as de facto - Finding that the deceased and the defendant did not cohabit for a period of two years immediately prior to her death as de facto partners or otherwise - Order that the plaintiff as the father of the deceased is entitled to be granted letters of administration

Legislation:

Administration Act 1903 (WA), s 6, s 14(1), s 25(1)
Interpretation Act 1984 (WA), s 13A
Non­Contentious Probate Rules 1967 (WA), r 9, r 9(B)
Rules of the Supreme Court 1971 (WA), O 73 r 2

Result:

An order granting the plaintiff letters of administration

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M N Solomon

Defendant:     No appearance

Solicitors:

Plaintiff:     DLA Phillips Fox

Defendant:     No appearance

Case(s) referred to in judgment(s):

In the Goods of Loveday [1900] P 154

HASLUCK J: 

Introduction

1. These proceedings concern the estate of Kylie Jane Fairburn who died intestate on 16 August 2004 ('the deceased').  The deceased is survived by her parents and by her brother, Sean Fairburn.  The plaintiff in these proceedings, Peter Frederick Fairburn, is the father of the deceased.  He seeks an order for letters of administration of the deceased's estate.

2. On 3 November 2004, the plaintiff lodged an application in the probate jurisdiction of the Supreme Court of Western Australia seeking to be granted letters of administration of the subject estate in application number 4219/04.

3. In December 2004, a second application for grant of letters of administration was lodged by the defendant, Glynn David Healey, in application number 4910/04 on the basis of a claimed de facto relationship with the deceased.

4. It emerged that in about mid 2002 the deceased had commenced some form of relationship with the defendant.  The affidavits supporting the respective applications raised a contentious issue as to whether the deceased's relationship with the defendant could properly be characterised as a de facto relationship and, if so, whether the parties had lived as de facto partners for a period of at least two years immediately prior to the death of the deceased.

5. I pause to note that by s 6 of the Administration Act 1903 (WA) the Supreme Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in Western Australia.

6. It appears from following provisions…