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:

1. 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. 

2. 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. 

3. 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.

4. Regrettably, a coming together to agree on the best way forward for this family is not possible.  So therefore, the plaintiff and defendant look to the court to decide where their father should be buried.

5. I have decided that the defendant will have carriage of the burial and funeral of the deceased.  I very much hope that the funeral may now be held as soon as is practicable and that the parties who came before the court will each peacefully attend the funeral of the deceased.  

Legal principles

1. This court has jurisdiction pursuant to s 4 of the Administration Act 1903 (WA), and in its inherent jurisdiction, to determine who should have carriage of a funeral, and where and how a body should be disposed of.[1]

   [1] Burrows v Cramley [2002] WASC 47 [3] (Pullin J); Mourish v Wynne [2009] WASC 85 [21] (Le Miere J).

2. The relevant legal principles in determining who should have possession and control of a body were outlined in Britt v Office of the State Coroner.[2]  The Court of Appeal considered the principles relevant to the court's discretion to make orders as to who should have carriage of a funeral, both in circumstances where there is a will, and where there is no will.

   [2] Britt v Office of the State Coroner [2022] WASCA 75 [52] ‑ [66].

3. The common law recognises that there is no property in the body of a deceased person.  Executors are entitled to custody and possession of the body for the purpose of determining funeral arrangements.[3]  However, the position is more complex when a person dies without leaving a will or naming an executor.

   [3] Williams v Williams (1882) 20 Ch D 659; Doodeward v Spence (1908) 6 CLR 406; Burrows v Cramley [15] - [16] (Pullin J).

4. In JB v PRN,[4] Hill J summarised the applicable principles as outlined by the Court of Appeal in Britt v Office of the State Coroner as follows:

   [4] JB v PRN [2024] WASC 219 [12].

   (a)if there is no will, the court will ordinarily order that the body be released to 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), determined by reference to the table in s 14 of the [Administration] Act;[5]

   (b)this is the common or usual approach, but it is not an approach which must be rigidly applied.[6]  The approach to be taken, and the weight to be given to the various considerations, depends upon the particular circumstances of each case;[7]

   (d)other factors (to the extent they are known to the court) which may be relevant to the determination include:[8]

   (i)cultural considerations;[9]

   (ii)the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased;[10]

   (iii)the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties with the competing proposals;[11] and

   (e)in determining who a deceased's body should be released to, the court is not required to make any final determination of who might be entitled to the intestate estate or administration of the estate.  In many cases the court will simply not be in a position to fairly and properly make a final determination.  Disputes about the release of deceased's body should be resolved as soon as possible after death as it is an affront to the dignity of the deceased and the emotional well‑being of those close to them for the funeral to be delayed for many months after death to allow questions of interest and entitlement to be fairly and properly resolved.[12]

   [5] Britt v Office of the State Coroner [54], [59], [65]; Smith v Tamworth City Council (1997) 41 NSWLR 680, 691; Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [45] ‑ [46].

   [6] Britt v Office of the State Coroner [55], citing Jones v Dodd [46].

   [7] Britt v Office of the State Coroner [18] (Murphy & Beech JJA), [59] (Mitchell JA).

   [8] Including in cases where there is estate and where there is no likelihood of any application for a grant of administration ever being made, or there are claims by persons with equally-ranking rights to apply for administration: Britt v Office of the State Coroner [56] ‑ [57].

   [9] Britt v Office of the State Coroner [58]; Dann v Office of the State Coroner [2020] WASC 486 [53].

   [10] Britt v Office of the State Coroner [58]; Dann v Office of the State Coroner [48].

   [11] Britt v Office of the State Coroner [58].

   [12] Britt v Office of the State Coroner [16] (Murphy & Beech JJA) [60] ‑ [61], [64] (Mitchell JA).

5. Further, in Britt v Office of the State Coroner,[13] the Court of Appeal cited with approval the approach described by Perry J (Millhouse and Nyland JJ agreeing) in Jones v Dodd:[14]

   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.

   [13] Britt v Office of the State Coroner [56].

   [14] Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [45].

6. As there is no evidence that the deceased left a will, it is necessary to have regard to the provisions of the Administration Act as part of the process of determining who is most likely to receive a grant of administration of the intestate estate.

7. Section 25(1)(a) empowers the court to grant administration of the estate of a person dying intestate 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.[15]

   [15] Britt v Office of the State Coroner [2022] WASCA 75 [67]; Hart v Hart [2010] WASC 329 [17]; Fairburn v Healey [2009] WASC 114 [7].

8. Section 14 details the distribution of the estate where a person dies intestate. Relevantly, where the deceased dies leaving a spouse, issue and siblings, the distribution of the estate is as follows:[16]

   1.the spouse is entitled to all household chattels included in the intestate property;

   2.where the net value of the intestate property (other than household chattels) does not exceed $472,000,[17] the spouse shall be entitled to the whole of the intestate property; and

   3.the siblings are not entitled to any of the intestate property.

   [16] Items 1 and 2 to the table to s 14(1) of the Administration Act.

   [17] As is likely to be the case here.

9. There is no reference in s 14 to de facto partners, but s 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.

10. Section 14(1) of the Administration Act also relevantly provides that where the deceased dies leaving issue but no husband or wife, the distribution of the estate is as follows:[18]

    1.the issue are entitled to the whole of the intestate property in accordance with s 14(2b); and

    2.the siblings are not entitled to any of the intestate property.

    [18] Item 5 to the table to s 14(1) of the Administration Act.

Factual background and evidence

1. The plaintiff has filed the following affidavits:

   (a)Affidavit of Mr Lenzo, legal practitioner, sworn 11 September 2025.

   (b)Affidavit of Ms Dianna Flanagan, plaintiff, affirmed 15 September 2025.

   (c)Affidavit of Ms Rallee Flanagan, daughter of the deceased, affirmed 6 September 2025.

   (d)Affidavit of Ms Zoe Flanagan, daughter of the deceased, affirmed 15 September 2025.

   (e)Affidavit of Ms Annika Flanagan, daughter of the deceased, affirmed 15 September 2025.

2. The defendant has filed the following affidavits:

   (a)Affidavit of defendant, son of the deceased, sworn 19 September 2025.

   (b)Affidavit of Kathleen Landor, eldest sister of the deceased, sworn 17 September 2025.

   (c)Affidavit of Mary Flanagan, youngest sister of the deceased, sworn 18 September 2025.

   (d)Affidavit of Ashley Walsh, nephew of the deceased, sworn 17 September 2025.

   (e)Affidavit of Virginia Walsh, second eldest sister of the deceased, sworn 17 September 2025.

3. In addition, the plaintiff relies upon a statement of Mr George Flanagan, brother of the deceased, signed 22 September 2025.  Further, a document headed declaration of de facto relationship made by Ms Sambo and a letter from Dr Tan, Immunology Consultant, Royal Perth Hospital, stating that the deceased was her patient and that Ms Sambo was the deceased's carer and attended medical appointments between 2023 and July 2025.

4. I propose to outline the salient aspects of each deponent, so that the diametrically opposed views of the family may be properly understood. 

Evidence relied upon by the plaintiff

1. Mr Lenzo, legal practitioner, deposes that the deceased died on 22 July 2025 at Langford, Western Australia.  The deceased died intestate and Mr Lenzo deposes he has no reason to believe that the total value of the estate would exceed $470,000.[19] 

   [19] Affidavit of Mr Lenzo [12], [23].

2. Mr Lenzo states that he was informed by Ms Sambo, as the deceased's nominated next of kin, that she believes that the deceased wished to be buried in Mount Magnet.[20]

   [20] Affidavit of Mr Lenzo [23].

3. Mr Lenzo deposes that the plaintiff applied to the Coroner's Court to be named as the additional next of kin and received confirmation that she was so recorded.[21]  The plaintiff arranged a funeral service for the deceased to take place at Mullewa Cemetery on 19 September 2025.[22]  The plaintiff did not receive any further correspondence from the Coroner's Court. 

   [21]Affidavit of Mr Lenzo [12].

   [22] Affidavit of Mr Lenzo [12].

4. The plaintiff, in her affidavit, deposes that while she was awaiting correspondence from the Coroner's Court she organised for Mid‑West Funerals to arrange her father's funeral to be held on Friday, 19 September 2025 at Mullewa Cemetery.  Further, the plaintiff deposes that she did not receive any further communication from the Coroner's Court and that the deceased's body was released to the defendant with no further notice given to her.  Subsequently, it became known to the plaintiff that her brother, the defendant, had made alternative arrangements for the deceased's funeral to take place at the Mount Magnet Cemetery.[23]

   [23] Affidavit of plaintiff [6] - [7].

5. The plaintiff states that the deceased is survived by his de facto partner, Ms Sambo, who lives in Perth, and his former wife, Ms Egan, the plaintiff's mother, with whom the deceased maintained a close relationship.  The deceased had 10 children, including the defendant, Ms Rallee Flanagan, Ms Zoe Flanagan and Ms Annika Flanagan.[24]

   [24] Affidavit of plaintiff [10].

6. The plaintiff deposes that she had a strong relationship with the deceased throughout his life.  The plaintiff states that in September 2024, at the time the deceased was unwell, he stated repeatedly that when he died he wanted to be buried in Mullewa.  The plaintiff states that the deceased was very open about his wishes to be buried in Mullewa.[25]  The plaintiff confirms that she is not aware of the deceased ever leaving written instructions concerning his preference as to where he wanted to be buried.[26]

   [25] Affidavit of plaintiff [13] - [20].

   [26] Affidavit of plaintiff [21].

7. In respect to cultural considerations, the plaintiff states that it is important to her and other members of the family that the deceased is buried in Mullewa so that his wishes are respected.  The family and the deceased are connected to Mullewa through the deceased's father and siblings, who are already buried there.[27]  Further, Mullewa is one hour's drive from Geraldton and thereby much easier for the majority of the deceased's children to attend.  The plaintiff says that if the deceased is buried in Mullewa, it would allow her and other family members to visit his grave regularly.[28]

   [27] Affidavit of plaintiff [24].

   [28] Affidavit of plaintiff [25] - [26].

8. The plaintiff deposes that in a conversation with Ms Sambo on 4 September 2025, she was advised that Ms Sambo had no preference as to the location of the funeral, other than the deceased being laid to rest as soon as possible.[29]

   [29] Affidavit of plaintiff [30].

9. Ms Rallee Flanagan, daughter of the deceased, deposes that in December 2024 in Mount Magnet, she was told by the deceased that he wished to be buried in Mullewa for the reason that his father, Mr Bill Flanagan, and two older brothers, William and Donald Flanagan, were also buried there.[30]

   [30] Affidavit of Ms Rallee Flanagan [12] - [13].

10. Ms Rallee Flanagan states that her brother, Mr Carl Flanagan, who is currently incarcerated, had expressed the view that he would be able to attend the funeral of the deceased if it is held in Mullewa but not if it is held in Mount Magnet.[31]

    [31] Affidavit of Ms Rallee Flanagan [14].

11. Ms Zoe Flanagan, daughter of the deceased, deposes that in December 2024 the deceased told her that he wanted to be buried in Mullewa because his father and two older brothers were also buried in Mullewa.  Ms Zoe Flanagan recalls that the deceased said that he 'wanted to be with his father again'.[32]

    [32] Affidavit of Ms Zoe Flanagan [11].

12. Ms Annika Flanagan, daughter of the deceased, deposes that the deceased told her that he wished to be buried in Mullewa.  Ms Annika Flanagan states that she believes the deceased wished to be buried in Mullewa because his father and two elder brothers are also buried in Mullewa.[33]

    [33] Affidavit of Ms Annika Flanagan [8], [10].

13. Each of the four daughters all express the view that their father's wishes should be honoured and therefore, the plaintiff should be granted carriage and control of his funeral to ensure that he is buried in Mullewa and not Mount Magnet.

Evidence relied upon by the defendant

1. The defendant, son of the deceased, deposes that the deceased wished to be buried in Mount Magnet with the deceased's mother and other siblings.  He states that his father always declared Mount Magnet as his home and that therefore, he only wishes to do as his father wanted.[34]

   [34] Affidavit of defendant, p 2.

2. The defendant deposes that he was given approval from the deceased's de facto partner, Ms Sambo, to make arrangements for the funeral and burial.  The defendant states that whilst his father lived with Ms Sambo in Perth, he always returned to his home at Mount Magnet every holiday.  That is because his father had strong cultural connections to the Country where he grew up and spent most of his childhood with his siblings and first cousins.[35]

   [35] Affidavit of defendant, p 3.

3. Ms Kathleen Landor, eldest sister of the deceased, in her affidavit, deposes that she supports her brother being buried in Mount Magnet given that he was born there and spent his entire childhood in that town.  Ms Landor further deposes that her brother was an initiated man and well respected by many, who did his 'schooling' in Mount Magnet and that both his mother and other siblings are all buried in Mount Magnet.[36]

   [36] Affidavit of Ms Kathleen Landor, p 2.

4. Ms Mary Flanagan, younger sister of the deceased, in her affidavit, states that she and her brother were very close and that he always spoke about being buried back in his home town of Mount Magnet where he had a strong connection to his Country.[37]  The deceased always spoke about being very proud to be a member of the Badimia clan.[38]

   [37] Affidavit of Ms Mary Flanagan, p 2.

   [38] Affidavit of Ms Mary Flanagan, p 2.

5. Mr Ashley Walsh, nephew of the deceased, in his affidavit, deposes that the deceased was an initiated man through Aboriginal lore and culture.[39]  Mr Walsh states that his uncle always travelled from Perth to Mount Magnet to spend time with his family.  Mr Walsh deposes that he was told by the deceased that he wished to come home to Mount Magnet to be buried with his mother.[40]  The deceased wished to be buried with his mother because he had a very strong cultural connection to Mount Magnet and this resulted in him always visiting Mount Magnet for holidays.[41]

   [39] Affidavit of Mr Ashley Walsh, p 2.

   [40] Affidavit of Mr Ashley Walsh, p 2.

   [41] Affidavit of Mr Ashley Walsh, p 2.

6. Ms Virginia Walsh, second eldest sister of the deceased, in her affidavit, expresses her support that the funeral be conducted in Mount Magnet.  Ms Walsh states her brother was an initiated man who was highly respected and wished to be buried with his own mother in Mount Magnet.  Ms Walsh states that whilst the deceased lived in Perth, he always came home to Mount Magnet.[42]

   [42] Affidavit of Ms Virginia Walsh, p 2.

1. Mr George Flanagan, older brother of the deceased, in his statement, states that he grew up with the deceased in Mount Magnet at the Old Native Reserve.  The family is a very close‑knit family and lived a cultural life, learning all about their heritage and culture from their parents, older siblings, aunties, uncles and their grandmother, Ms Clara George.[43]

   [43] Statement of Mr George Flanagan, p 1.

2. Mr George Flanagan states that the deceased was a cultural man by Aboriginal lore and that he was respected because of his cultural connection to Mount Magnet.  The deceased always returned to Mount Magnet for holidays, funerals and milestone celebrations and brought his children and partner to the town.[44]

   [44] Statement of Mr George Flanagan, p 1.

3. Mr George Flanagan states that during 'many yarning times together' the deceased stated that if he 'passes away' he wanted to be brought back to be buried in Mount Magnet, to be alongside his mother and other family members.  Further, the deceased told Ms Sambo, his partner of the last six years, that this was his wish and that he wished it to be carried out.  Accordingly, Mr George Flanagan states that he wants to carry out his late brother's wishes to be buried in Mount Magnet.[45]

   [45] Statement of Mr George Flanagan, p 1.

Assessment of relevant factors

1. There appears to be one point of contention between the parties and that is whether the funeral is to be held in Mullewa or Mount Magnet.  There are no cultural or religious issues concerning the manner in which the funeral is to be conducted.  Neither the plaintiff nor the defendant requires that the funeral be conducted in accordance with any particular religion or church.  There are no cultural divisions between the children of the deceased.  The sole issue is the location of the funeral and burial.

2. I now turn to the factors that I must consider. 

Person most likely to be granted letters of administration

1. The first relevant factor is who has the highest ranking claim to undertake administration of the deceased's estate, if an application for letters of administration was made.  There is no dispute that the deceased died without a valid will and consequently there is no executor of his estate.  Further, there is no dispute that Ms Sambo was the de facto partner of the deceased for approximately six years prior to his death. 

2. Ms Sambo, as the deceased's de facto partner, has the highest ranking claim to undertake administration of the deceased's estate.  Given that the deceased died intestate and his estate appears to be worth less than $470,000,[46] Ms Sambo would be entitled to the entirety of the deceased's estate.[47]

   [46] Affidavit of Mr Lenzo [24].

   [47] Administration Act, ss 14 and 15.

3. The evidence supports a finding that Ms Sambo understood that the deceased wished for his funeral and burial to be held in Mount Magnet.[48]  Counsel for the plaintiff confirmed that this appears to be the view of Ms Sambo.

   [48] Affidavit of Mr Lenzo [23].

4. In respect to the grant of letters of administration, counsel for the plaintiff stated that although Ms Sambo is the person who would be most likely to be granted letters of administration, it does not appear that Ms Sambo has applied, or is likely to apply, for letters of administration.  Nor does Ms Sambo appear to contend that she, as opposed to the defendant, is the person who should be granted carriage and control of the funeral and burial of the deceased.  Therefore, counsel for the plaintiff submitted that this is a case where there would be 'an air of unreality' in relying on an approach based on entitlements to apply for a grant.

5. It appears that Ms Sambo has not applied to be granted letters of administration due to the amount of the estate.  However, this factor remains relevant that it is Ms Sambo who is the person who has the highest ranking privilege to be the administrator of the estate.  Further, Ms Sambo has expressed her understanding that the deceased be buried in Mount Magnet.  Given that the defendant proposes to arrange the funeral in Mount Magnet, it has not been necessary for Ms Sambo to seek to personally have carriage of the deceased's funeral. 

Wishes of the deceased

1. A factor that I must consider is the wishes of the deceased concerning his funeral and burial.  In this case, there is significant evidence concerning the express wishes of the deceased as to where his funeral and burial should occur.  Both the plaintiff and the defendant have support from close members of the family.

2. The plaintiff recalls the deceased repeatedly expressing his wish to be buried in Mullewa and most recently in September 2024.[49]  Ms Rallee Flanagan and Ms Zoe Flanagan depose that in December 2024, the deceased told them that he wished to be buried in Mullewa.[50]  Ms Annika Flanagan recalls the deceased stating that he wished to be buried in Mullewa but is unable to confirm the time period when this was said to her.[51]

   [49] Affidavit of plaintiff [17] - [20].

   [50] Affidavit of Ms Rallee Flanagan [10] ‑ [12]; Affidavit of Ms Zoe Flanagan [7] ‑ [10].

   [51] Affidavit of Ms Annika Flanagan [11].

3. In turn, the defendant recalls that the deceased wished to be buried in Mount Magnet with his mother and siblings.  Further, the defendant deposes that the deceased told Ms Sambo, his partner of the last six years, that he wished to be buried in Mount Magnet.  Mr Ashley Walsh and Ms Virginia Walsh recall the deceased stating that he wished to be buried in Mount Magnet.  Mr Lenzo deposes that Ms Sambo confirmed that the deceased wished to be buried in Mount Magnet.

4. The plaintiff submits that whilst the evidence concerning the wishes of the deceased appears to be reasonably balanced when the utterances of the deceased in respect to the location of his funeral are properly understood, in light of the timing and context of the deceased's utterances, this factor favours the plaintiff.  The plaintiff submits that the utterances were made in September and December 2024, in circumstances when the deceased was seriously ill.  In contrast, the evidence on behalf of the defendant does not particularise the time period when the deceased made his utterances concerning his wishes for his funeral.

5. However, it was Ms Sambo who has been the partner of the deceased for the last six years and cared for him during his illness.  The evidence is that Ms Sambo was told by the deceased that he wished to be buried in Mount Magnet.[52]

Wishes of the close relatives of the deceased

[52] Affidavit of Mr Lenzo; Statement of Mr George Flanagan.

1. Turning to the relevant factor of the wishes of the deceased's close living relatives, the plaintiff, Ms Rallee Flanagan, Ms Annika Flanagan and Ms Zoe Flanagan, each support the deceased being buried in Mullewa.  The defendant, Mr George Flanagan, Ms Kathleen Landor, Ms Mary Flanagan, Mr Ashley Walsh and Ms Virginia Walsh each support the deceased being buried in Mount Magnet.

2. Counsel for the plaintiff submitted that this factor is finely balanced.  There are four children expressing the wish that their father be buried in Mullewa and one child and four siblings (and a nephew) expressing the wish that the funeral be conducted in Mount Magnet. 

3. Ms Sambo has not expressed her own view, appearing to be careful not to upset the sensitivities of the siblings and children.  Though, it is known that Ms Sambo was happy for the defendant to arrange the funeral and burial of the deceased.  In so doing, it is open to find that she must have known that the defendant proposed to hold the funeral and burial in Mount Magnet.  That accords with her understanding that the deceased wished to be buried in Mount Magnet.

Cultural considerations

1. The plaintiff deposes that the deceased had a cultural connection to Mullewa with his father and brothers buried at Mullewa.[53]  In this regard, the plaintiff is corroborated by Ms Annika Flanagan,[54] Ms Rallee Flanagan[55] and Ms Zoe Flanagan.[56]

   [53] Affidavit of plaintiff [17]; [24].

   [54] Affidavit of Ms Annika Flanagan [10].

   [55] Affidavit of Ms Rallee Flanagan [13].

   [56] Affidavit of Ms Zoe Flanagan [11].

2. The defendant deposes that the deceased had a cultural connection to Mount Magnet with his mother buried at Mount Magnet.  The defendant also deposes that his father had strong cultural connections to 'the Country and land' at Mount Magnet.[57]

   [57] Affidavit of defendant p 2.

3. At the hearing, the defendant submitted that cultural considerations require that the deceased be buried with his mother and not his father.  I accept that the defendant honestly holds that belief.  However, absent expert evidence regarding cultural considerations, I am unable to make the finding that culturally, the deceased must be buried with his mother.

4. Based on the evidence there appears to be equally compelling cases that the deceased had cultural ties to both Mullewa and Mount Magnet.

Practicalities of burial and funeral

1. Turning to the factor of the practicalities of burying the deceased in Mullewa, the plaintiff submits that this factor favours the grant of the application.  The majority of the deceased's children live in Geraldton, which is closer to Mullewa than Mount Magnet.[58]  Mullewa is one hour's drive from Geraldton and therefore it is much easier for the majority of the plaintiff's siblings to visit the deceased's grave.[59]

   [58] Affidavit of plaintiff [25] - [29].

   [59] Affidavit of plaintiff [25] - [29].

2. Though, at the hearing it was accepted by counsel for the plaintiff as not being in dispute, that Mount Magnet is approximately a three‑hour drive from Geraldton.

3. There is evidence, though hearsay, that a son of the deceased, Mr Carl Flanagan, would be able to attend the funeral if it is held in Mullewa but not if it is held in Mount Magnet, due to him being incarcerated.[60]  However, there is uncertainty as to the place of incarceration and whether Carl would be permitted to attend the funeral.

   [60] Affidavit of Ms Rallee Flanagan [14].

4. Counsel for the plaintiff submitted that there are no logistical difficulties associated with the burial proposed in Mullewa.  The plaintiff is in a position to arrange the funeral.

5. The defendant's position is that he had arranged for a funeral to be held in early October 2025 in Mount Magnet and that funeral would have proceeded but for this application.  At the hearing, the defendant submitted that the majority of the relatives do support the burial and funeral in Mount Magnet and that each will visit his grave because of the strong cultural attachment to that land which was and is the deceased's Country.

6. There is no practical difficulty in relation to either proposed funeral.  I accept that both the plaintiff and defendant will diligently arrange the funeral.  I understand that whether the funeral is held in Mullewa or Mount Magnet, all members of the family are most welcome to attend.

Determination

1. Based upon the evidence before me, both the plaintiff and defendant are in a position to arrange the funeral and to meet the financial costs of the burial.  I am satisfied that both the plaintiff and defendant would do so in a timely manner. 

2. The evidence is supportive of a finding that at various times the deceased expressed his wish to be buried in both Mullewa and Mount Magnet.  The deceased appeared to have close connections with both towns.  His late mother and father are buried in Mount Magnet and Mullewa respectively.

3. In making my decision, I am mindful there will be significant distress to the person who is not given carriage of the funeral.  Both the plaintiff and defendant, out of their love and devotion to their father, wish the burial and funeral to occur.  It is the single point of contention as to the location that appears to separate the children. 

4. In this case, I am satisfied that Ms Sambo as the de facto spouse and next of kin is supportive of the funeral being arranged by the defendant in Mount Magnet because that is where she understands that the deceased wished the funeral to be held.  The defendant had arranged the funeral with the support of siblings and other relatives of the deceased.  I am satisfied that the defendant should continue with his planned funeral and that he will make all members of the family most welcome at the funeral so their respect may be shown to the deceased.  The defendant will have carriage of the burial and funeral of the deceased. 

Conclusion and orders

1. Accordingly, I order that the defendant have carriage of the burial and funeral of the deceased.  I do not make any orders as to costs.  Each party should bear their own costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RH

Associate to the Hon Justice McGrath

25 SEPTEMBER 2025