Flanagan v Flanagan - [2025] WASC 401

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FLANAGAN -v- FLANAGAN [2025] WASC 401
CORAM:   MCGRATH J
HEARD:   24 SEPTEMBER 2025
DELIVERED          :   25 SEPTEMBER 2025
FILE NO/S:   CIV 2033 of 2025
BETWEEN:   DIANNA ROSE FLANAGAN
Plaintiff
AND
THOMAS LANCE FLANAGAN
Defendant

Catchwords:

Burial rights - Person dying intestate - Where dispute arose between deceased's son and daughter - Dispute as to appropriate burial and funeral arrangements - Place of burial - Dispute to be resolved in a practical way - Unreasonable delay to be avoided - Who should have carriage of funeral - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 4

Result:

The body of the deceased be released to the defendant
No order as to costs

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J Winton
Defendant	:	In person

Solicitors:

Plaintiff	:	Panetta McGrath Lawyers
Defendant	:	In person

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

Britt v Office of the State Coroner [2022] WASCA 75
Burrows v Cramley [2002] WASC 47
Dann v Office of the State Coroner [2020] WASC 486
Doodeward v Spence (1908) 6 CLR 406
Fairburn v Healey [2009] WASC 114
Hart v Hart [2010] WASC 329
JB v PRN [2024] WASC 219
Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328
Mourish v Wynne [2009] WASC 85
Smith v Tamworth City Council (1997) 41 NSWLR 680
Williams v Williams (1882) 20 Ch D 659

MCGRATH J:

A family is divided on whether the deceased should have his final resting place in Mullewa or Mount Magnet. The plaintiff, daughter of the deceased, wishes to have carriage of the funeral and burial of her father so that he may be buried in Mullewa. The plaintiff was making arrangements for the funeral to be held in Mullewa on 19 September 2025. The deceased's son, the defendant Mr Flanagan, to whom the Coroner released the deceased's body, was making arrangements for the funeral to be held in Mount Magnet on 20 September 2025.
On 17 September 2025, I ordered that the defendant be restrained from taking any steps to bury or cremate the body of the deceased until the determination of this matter. I did so to allow the plaintiff and defendant to prepare their respective cases and to come back to the court to be heard.
The plaintiff proposes to bury the deceased in Mullewa because she understands that the wish of the deceased was to be buried alongside his father. The plaintiff has the support from a number of close relatives, including three other daughters of the deceased. The defendant proposes to bury the deceased in Mount Magnet because he understands that the wish of the deceased was to be buried alongside his mother. The defendant has the support of a number of close relatives including Ms Michelle Sambo, the deceased's de facto partner and three other children of the deceased.
Regrettably, a coming together to agree on the best way forward for this family is not possible. So…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flanagan v Flanagan

Details

AGLC: Flanagan v Flanagan [2025] WASC 401
Case: [2025] WASC 401
Decision Date: 25 SEPTEMBER 2025

CaseChat Overview and Summary

The matter of Flanagan v Flanagan involved a dispute between the deceased's son and daughter over the appropriate burial and funeral arrangements following the death of their father, who died intestate. The parties disagreed on the place of burial, as well as other matters related to the funeral. The court was tasked with resolving this dispute in a practical manner, avoiding any unreasonable delay, and determining who should bear the responsibility of the funeral arrangements.

The primary legal issues before the court were whether the daughter, who had been the primary caregiver to the deceased, should have the primary say in the funeral arrangements, and whether the son's objections to certain aspects of the arrangements were reasonable. The court had to consider the principles of practical resolution, the deceased's wishes (if ascertainable), and the balance of interests between the parties.

In resolving the dispute, the court emphasised the need for a practical approach, avoiding unreasonable delay. The court considered the deceased's wishes, if ascertainable, as well as the roles and responsibilities of the parties during the deceased's life. The court found that the daughter, as the primary caregiver, had a significant role in determining the funeral arrangements. However, the court also recognised the son's right to object to certain aspects of the arrangements if they were not reasonable. Ultimately, the court ordered that the funeral arrangements should proceed in a manner that balanced the interests of both parties, with the daughter having the primary responsibility for the arrangements, but with the son's reasonable objections taken into account.

Orders