JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HART -v- COOPER [2023] WASC 132
CORAM: SEAWARD J
HEARD: 14 APRIL 2023
DELIVERED : 28 APRIL 2023
FILE NO/S: CIV 1180 of 2023
BETWEEN: RHIANON AYPLEN AGNES HART
Plaintiff
AND
KATRINA JADE COOPER
Defendant
Catchwords:
Burial rights - Person dying intestate - Where dispute arose between the deceased's sister and a person with whom he was in a relationship as to appropriate funeral arrangements - Whether it appeared that the person and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death so as to give her an entitlement to the intestate estate and ordinarily entitle her to a grant of administration of the estate - Whether it was appropriate to release the deceased's body to the person who appears most likely to be granted administration of the deceased's estate
Legislation:
Administration Act 1903 (WA), s 4, s 14, s 25
Interpretation Act 1984 (WA), s 13A
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | MGS Crowley |
| Defendant | : | D Branford |
Solicitors:
| Plaintiff | : | William Gerard Legal PTY LTD |
| Defendant | : | Pragma Lawyers |
Case(s) referred to in decision(s):
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1
Bennell v Western Australia (2006) 153 FCR 120
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
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
Fairbairn v Radecki [2022] HCA 18
Fairburn v Healey [2009] WASC 114
Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572
Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328
Jones v Dunkel (1959) 101 CLR 298
Mourish v Wynne [2009] WASC 85
RPS v The Queen (2000) 199 CLR 620
Smith v Tamworth City Council (1997) 41 NSWLR 680
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
The State of South Australia v Smith (2014) SASR 247
Williams v Williams (1882) 20 Ch D 659
SEAWARD J:
Introduction
Travis Barry Mark Kimberley Hart died suddenly on or about 30 December 2022 in Kambalda. There is no evidence that he left a will.
Mr Hart was born in Collie and was a proud Noongar man. He moved to live in Kalgoorlie when he was in school. However, he maintained a connection with Collie and with his family there.
The plaintiff is Mr Hart's sister. The defendant is the mother of Mr Hart's three children who says that she was, at the date of Mr Hart's death, his de facto partner. The defendant and their children live in Kalgoorlie. The plaintiff says that at the date of Mr Hart's death, the defendant was no longer Mr Hart's de facto partner.
The plaintiff wishes to bury Mr Hart in Collie which she says is consistent with Noongar custom. The defendant wishes to bury Mr Hart in Kalgoorlie in the same cemetery as his second child with the defendant who was, sadly, stillborn, so the defendant and her children can visit.
On 1 February 2023, Coroner M Holgate issued a decision stating that he intended to issue a certificate, pursuant to s 29(1) of the Coroners Act 1996 (WA), releasing Mr Hart's body to the defendant for burial. Mr Hart's body was then released to the defendant.
On 20 February 2023, the plaintiff commenced these proceedings by originating summons seeking orders that the plaintiff have possession of Mr Hart's body and the plaintiff make arrangements for the burial of Mr Hart.
On 20 February 2023, the plaintiff also filed a notice of motion seeking an injunction restraining the defendant and her agents from burying Mr Hart. Ultimately there was no need for the court to consider and determine this application, as the defendant gave an undertaking that the defendant and her agents will not take steps to bury Mr Hart until further order of the court, and the plaintiff gave an undertaking as to damages.
The question that arises in these proceedings is who should have the right to make the funeral arrangements: the plaintiff (Mr Hart's sister) or the defendant (who says she is Mr Hart's de facto partner). The answer to this question involves consideration of the following two issues:
(a)on the state of the evidence before the court, which party is most likely to receive a grant of administration of Mr Hart's estate. This question involves resolution of whether, as at the date of Mr Hart's death, the defendant had been in a de facto relationship with Mr Hart for a period of at least two years; and
(b)whether there is any reason not to grant carriage of Mr Hart's funeral to the person who is most likely to receive a grant of administration of Mr Hart's estate.
Evidence
In support of her application, the plaintiff relies on the following affidavits:
(a)affidavit of the plaintiff sworn 6 February 2023;
(b)affidavit of the plaintiff sworn 5 April 2023;
(c)affidavit of Annette Mary Hansen sworn 7 March 2023 (Mr Hart's godmother and elder of the Hart family);
(d)affidavit of Jessica Hart sworn 7 March 2023 (Mr Hart's grandmother and elder of the Hart family);
(e)affidavit of Karla Marie Hart sworn 7 March 2023 (Mr Hart's cultural aunt and the cultural sister of Mr Hart's mother);
(f)affidavit of Melyssa Lee Eades sworn 7 March 2023 (Mr Hart's cultural aunt and Mr Hart's second cousin);
(g)affidavit of Kelly Marie Hart sworn 7 March 2023 (Mr Hart's cousin and cultural sister);
(h)affidavit of Vanessa May Hart sworn 7 March 2023 (Mr Hart's aunt);
(i)affidavit of Miranda Sheree Hart sworn 7 March 2023 (Mr Hart's cousin and cultural sister);
(j)second affidavit of Miranda Sheree Hart sworn 7 March 2023;
(k)affidavit of David Leon Nicholas Thomas sworn 7 March 2023 (Mr Hart's cultural brother); and
(l)affidavit of Bruce Wayne Hart sworn 7 March 2023 (Mr Hart's godfather and an elder of the Hart family).
The defendant in turn relies upon the following affidavits:
(a)affidavit of the defendant, sworn 24 March 2023;
(b)affidavit of the defendant, sworn 6 April 2023;
(c)affidavit of Jaylani Cooper sworn 24 March 2023 (Mr Hart's eldest child, aged 14);
(d)affidavit of Jaylani Cooper sworn 11 April 2023;
(e)affidavit of Stanley James Ward sworn 24 March 2023 (Mr Hart's great uncle and the uncle of Mr Hart's mother); and
(f)affidavit of Leanne Faye Ward sworn 24 March 2023 (wife of Stanley James Ward).
No party sought leave to cross examine any deponent, and the affidavits were admitted into evidence.
Legal principles - funeral arrangements
This court has jurisdiction pursuant to s 4 of the Administration Act 1903 (WA) and inherent jurisdiction to determine who should have carriage of a funeral and where and how a body should be dealt with.[1]
[1] Britt v Office of the State Coroner [2022] WASCA 75 [52]; Burrows v Cramley [2002] WASC 47 [3] (Pullin J); Mourish v Wynne [2009] WASC 85 [21] (Le Miere J).
It is an established principle at common law that there is no property in a dead body, but executors are entitled to custody and possession of the body for the purpose of disposal of the body.[2]
[2] Britt v Office of the State Coroner [2022] WASCA 75 [53]; Williams v Williams (1882) 20 Ch D 659; Doodeward v Spence (1908) 6 CLR 406; Burrows v Cramley [2002] WASC 47 [15] ‑ [16] (Pullin J).
The principles of law that apply in this State as to how this court is to determine who should have possession and control of the body of a deceased have been considered in other single judge decisions of this court, and were recently considered by the Court of Appeal in Britt v Office of the State Coroner.[3] Mitchell JA (with whom Murphy and Beech JJA agreed in this respect) reviewed the single judge decisions and set out the principles that guide the scope of the court's discretion to make orders as to who should have the carriage of a funeral, in both circumstances where there is a will with an executor appointed and where there is no will. By way of summary, the key principles are as follows:
[3] Britt v Office of the State Coroner [2022] WASCA 75 [52] ‑ [66].
(a)the court will ordinarily order that the body be released to the executor of the deceased's will;[4]
[4] Britt v Office of the State Coroner [2022] WASCA 75 [54], [59]; Smith v Tamworth City Council (1997) 41 NSWLR 680, 691; Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [45] ‑ [46].
(b)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);[5]
(c)however, the above is to be regarded only as a common or usual approach, not an approach which is to 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 the 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] including children;[11]
(iii)the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties attendant upon competing proposals.[12]
(e)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. In many cases the court will not be in a position to fairly and properly make such a final determination. Disputes about the release of deceased's body should be resolved as soon as possible after the death as 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;[13] and
(f)in proceeding in an expedited way, the court will not usually need to resolve every factual dispute that may be relevant to the grant of administration or undertake any extensive cross‑examination.[14]
[5] Britt v Office of the State Coroner [2022] WASCA 75 [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 [2022] WASCA 75 [55], citing Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [46].
[7] Britt v Office of the State Coroner [2022] WASCA 75 [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 [2022] WASCA 75 [56] ‑ [57].
[9] Britt v Office of the State Coroner [2022] WASCA 75 [58]; Dann v Office of the State Coroner [2020] WASC 486 [53].
[10] Britt v Office of the State Coroner [2022] WASCA 75 [58]; Dann v Office of the State Coroner [2020] WASC 486 [48].
[11] Dann v Office of the State Coroner [2020] WASC 486 [62]; Reece v Little [2009] WASC 30 [97]. Although the defendant accepted that the reference to 'very great weight' in Reece v Littlewas particular to the facts of that case (ts 46).
[12] Britt v Office of the State Coroner [2022] WASCA 75 [58].
[13] Britt v Office of the State Coroner [2022] WASCA 75 [16] (Murphy & Beech JJA) [60] ‑ [61], [64] (Mitchell JA).
[14] Britt v Office of the State Coroner [2022] WASCA 75 [65]; The State of South Australia v Smith (2014) SASR 247 [40].
As there is no evidence that Mr Hart 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.
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].
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.
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.
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.
Accordingly, the question of whether the defendant was Mr Hart's de factor partner (and if so whether they had been living together as de facto partners for a period of at least two years immediately before Mr Hart died) is central to determining who is most likely to receive a grant of administration of Mr Hart's estate and who should ordinarily be the person who should be given carriage of Mr Hart's funeral.
If the defendant was Mr Hart's de facto, then the starting point will be that the defendant should be given carriage of Mr Hart's funeral. If, on the other hand, the defendant was not Mr Hart's de facto, it will be necessary to consider who else may be most likely to receive a grant of administration of the intestate estate. It is not in dispute that Mr Hart's two living children are under the age of 18 years, and therefore neither child could be granted administration of Mr Hart's estate. It also not in dispute that the only other person who could possibly be granted administration of Mr Hart's estate is a sibling (as both of Mr Hart's parents are deceased), and the only sibling currently expressing an interest in that regard is the plaintiff.
Issue 1 - Was the defendant the de facto partner of Mr Hart?
Legal principles - de facto relationship
Britt v Office of the State Coroner was an appeal arising out of a dispute as to whether the de facto partner of the deceased or the mother of the deceased should have the conduct of the funeral. A live question in that case was whether the second defendant was the deceased's de facto partner for a period of two years prior to his death. In considering this issue, the court had regard to the definition of the term 'de facto relationship' in s 13A of the Interpretation Act 1984 (WA) which provides as follows:
(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.
After having regard to this definition, Mitchell JA set out the principles to be applied by the court when determining whether there was, at the relevant time, the existence of a de facto relationship:[19]
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.
[19] Britt v Office of the State Coroner [2022] WASCA 75 [73].
Mitchell JA also had consideration to the question of whether and when a de facto relationship has come to an end and held as follows:
[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.
It is not in dispute that the defendant, as the party alleging the existence and continuation of a de facto relationship, bears the onus of proof in this regard.
Defendant's evidence
The defendant relies almost entirely on her own affidavit evidence in support of her submission that she was in a de facto relationship with the deceased for a period of more than two years before his death.
Defendant's affidavits
The defendant deposes that she is an Aboriginal woman of the Wongatha / Yamatji / Noongar / Gija people and lives in Kalgoorlie, where she grew up.[20]
[20] Affidavit of Katrina Jade Cooper sworn 24 March 2023 (Exhibit 12) [3].
The defendant explains that she and Mr Hart first met at South Kalgoorlie Primary School, and then they both attended Kalgoorlie‑Boulder Community High School and became friends.[21]
[21] Exhibit 12 [10].
The defendant's evidence is that she commenced a de facto relationship with Mr Hart in 2007, that this relationship continued until his passing in December 2022.[22]
[22] Exhibit 12 [11].
The defendant describes her relationship throughout her affidavits as being a de facto relationship. I have taken this to mean that this is how the defendant describes the relationship. It is the role of the court, and not the defendant, to decide whether that relationship was a de facto relationship for the purposes of the application.
The defendant and Mr Hart have three children:[23]
(a)Jaylani Cooper, their daughter born on 20 December 2008;
(b)Shiloh Cooper, their daughter born on 1 October 2010, who was sadly stillborn;
(c)Rylan Hart, their son born on 9 September 2020
[23] Exhibit 12 [5].
The defendant and her children Jaylani (now 14 years) and Rylan (now 2.5 years) live in Kalgoorlie.[24]
[24] Exhibit 12 [7].
The defendant describes her relationship with Mr Hart as being a difficult one at times, made so by the fact Mr Hart had trouble with the law and experienced periods of being incarcerated in prison; had problems with alcohol addiction; would on occasion use illicit drugs; suffered from mental health issues, including dealing with the loss of their daughter Shiloh; had suicidal thoughts and bouts of depression; suffered from childhood traumas (losing his mother, grandmother, and uncle Anthony who was like a father to him); and would tend to experience anger issues whenever he was under the influence of alcohol or illicit drugs.[25]
[25] Exhibit 12 [15].
The defendant's evidence is that whilst it was not the easiest relationship to maintain, she and Mr Hart made it work in their own way, and despite many setbacks and challenges their relationship continued because they both regarded it as important for their sake and that of their children.[26]
[26] Exhibit 12 [11].
Following the still birth of their daughter Shiloh in 2010,[27] the defendant says that she and Mr Hart separated. This separation lasted until 2014. The defendant's evidence is that during that separation they continued to maintain a very close relationship during this time, with Mr Hart continuing to visit Jaylani.[28] However, the affidavit makes it clear that during this period the relationship had ended.
[27] Exhibit 12 [13].
[28] Exhibit 12 [14].
From 2014 to 2019 Mr Hart was incarcerated, first in prison in Perth and then later in the Kalgoorlie ‑ Eastern Goldfields Regional Prison. The defendant's evidence is that during his incarceration in Perth Jaylani and the defendant would visit him in prison, and this continued on a more frequent basis once he was transferred to Kalgoorlie.[29]
[29] Exhibit 12 [16] ‑ [17].
The defendant's evidence is that during 2014 the defendant and Mr Hart decided to reconcile and recommence their de facto relationship.[30] When Mr Hart was released from prison in July 2019, the defendant and Mr Hart recommenced living together in a house at Burt Street, Boulder (Kalgoorlie).[31]
[30] Exhibit 12 [17].
[31] Exhibit 12 [20].
The defendant's evidence is that in 2015 (prior to Mr Hart being released from prison), she became a foster carer through the Department of Child Protection for two of her first cousin's children (aged 12 and 5 at the time), and then later in 2016 for their younger sibling (aged 8 months at the time). The defendant deposes that their extended family now consisted of the defendant and Mr Hart, plus their daughter Jaylani and her three foster children. The defendant's evidence is that Mr Hart accepted the three foster children as his own and they in turn respected him and called him 'Uncle Travis'.[32]
[32] Exhibit 12 [19] ‑ [20].
The defendant's evidence is that upon his release from prison, Mr Hart commenced working and held a few casual positions around Kalgoorlie.[33]
[33] Exhibit 12 [21].
The defendant deposes that in early 2020 she and Mr Hart found out that she was pregnant with their son Rylan, and that they were both very excited about the news.[34]
[34] Exhibit 12 [22].
Unfortunately, Mr Hart got himself into trouble with the law again and returned to Kalgoorlie ‑ Eastern Goldfields Regional Prison in 2020. The defendant's evidence is that whilst Mr Hart was incarcerated she and Mr Hart maintained their relationship and it remained strong. The defendant deposes that Jaylani and the defendant would visit Mr Hart in prison every weekend until COVID‑19 and then they had to have video conference calls instead. The defendant's evidence is that all three very much looked forward to the video conference calls.[35]
[35] Exhibit 12 [23].
The defendant also gives evidence that during this period of incarceration her family and friends held a gender reveal party for their unborn baby. The defendant and Mr Hart arranged with the prison officials to have their video conference contact at the same time as the baby gender reveal as Mr Hart wanted to be a part of this celebration. This occurred and Mr Hart was 'over the moon' when he found out that they were expecting a boy. Their son, Rylan was born in September 2020 at King Edward Memorial Hospital whilst Mr Hart was still in prison.[36]
[36] Exhibit 12 [24] ‑ [25].
The defendant's evidence is that upon Mr Hart's release from prison in November 2020, the defendant and Mr Hart moved into a home at 20 Pira Avenue, Karkurla (Kalgoorlie), and lived there until July 2021.[37]
[37] Exhibit 12 [26] ‑ [27].
The defendant deposes that in July 2021 they moved into her parents' home at 9 Rodgers Way, South Kalgoorlie to help her mother who had been diagnosed with cancer. The defendant's evidence is that Mr Hart supported the defendant in this move.[38]
[38] Exhibit 12 [28].
The defendant's evidence is that during this time Mr Travis commenced casual work with Kai Rho Contracting in Kalgoorlie.[39]
[39] Exhibit 12 [28].
The defendant deposes that Mr Hart loved their children and foster children dearly and would do everything in his power to see them all happy. The defendant says that the children always looked forward to pay day as Mr Hart would take them out and treat them with lunch and shopping. The defendant's evidence is that on weekends Mr Hart would attend the children's sporting events, and they would take the children to parks, pools and visit other family. The defendant says that they would also attend Mr Hart's footy games, which the children enjoyed very much.[40]
[40] Exhibit 12 [29].
The defendant and Mr Hart lived at her parents' house until April 2022, when it is not in dispute that Mr Hart left that house due to an incident when he assaulted the defendant's father.[41] The defendant's evidence concerning that incident is as follows.
[41] Exhibit 12 [30].
The defendant deposes that Mr Hart's drug and alcohol use would result in him acting irrationally and unreasonably and wanting to fight. The defendant says that when this happened her family would step in and Mr Hart would leave the home for days at a time. The defendant's evidence is that she and the defendant would talk and he would come back home again. The defendant's evidence is that this happened all the time throughout their de facto relationship.[42]
[42] Exhibit 12 [31].
The defendant's evidence is that on the date of incident,[43] Mr Hart was drinking at her parents' house out the back and came into the house where he was loud. The defendant says that she requested he be quiet and Mr Hart then grabbed their son Rylan and in the process made Rylan cry. The defendant says that this woke up her mum and dad who had been sleeping at that time. The defendant's evidence is that Mr Hart then became angry and she took Rylan from him, but Mr Hart continued to talk in a loud voice and shout abusive language at her whilst she was holding Rylan. At this point, the defendant's father stepped in told Mr Hart to stop, which he did not do and then her father pushed Mr Hart. The defendant's evidence is that Mr Hart then punched her father in the face upon which her father fell, hit his head against the wall, became unconscious and was transported to hospital.[44]
[43] Which was 31 March 2022, see the prosecution notice being annexure KJC-2 to Exhibit 13.
[44] Exhibit 12 [32].
The defendant says that as a result of this incident her father pressed charges against Mr Hart for the assault and Mr Hart left her parents' house. The defendant says that her father, although he was very upset about the incident, did not take out any restraining order against Mr Hart and nothing prevented Mr Hart from visiting 'us at my parents' house'.[45]
[45] Exhibit 12 [33].
The defendant deposes that after the incident, Mr Hart still came to her parents' home to visit them and did so when her father was not at home. On occasions when her father was present, the defendant says that she would meet Mr Hart out the front of the house to keep him away from her father.[46]
[46] Exhibit 12 [34].
In the defendant's second affidavit, she deposes that on 5 April 2023, the plaintiff's lawyers provided a copy of the prosecution notice that relates to the incident with her father. In that prosecution notice, various bail conditions are noted, including conditions that Mr Hart was not to remain on premises where her father lived or contact or attempt to contact her father, or approach within 50 metres of her father.[47]
[47] Affidavit of Katrina Jade Cooper sworn 6 April 2023 (Exhibit 13) [7] ‑ [8].
The defendant deposes that she was not previously aware of these bail conditions. The defendant accepts that these bail conditions were imposed but says that to the best of her knowledge her father did not ever tell Mr Hart to go away and he was aware that Mr Hart would come to the house to visit the children and the defendant. The defendant says she kept her father informed of when Mr Hart would visit the house and her father 'had no issue with that'.[48]
[48] Exhibit 13 [8] ‑ [10].
The defendant gives evidence her father and Mr Hart would also have contact with each other in town 'with no issues'. The defendant gives an example where in October 2022 her parents ran the Aboriginal Football Carnival in Kalgoorlie and Mr Hart's team played in this carnival and won. The defendant says that both her parents were present at the carnival and at the medal presentation where Mr Hart received his medal.[49]
[49] Exhibit 13 [10].
The defendant says the practical reality of their situation at that time was:[50]
… that my Dad did not enforce any conditions to restrict Travis to have contact with the kids and me living at my parents' house, and Travis did not abide by any conditions either.
[50] Exhibit 13 [10].
The defendant's evidence is that after the 1 April 2022 incident:[51]
… Travis and I continued our de-facto relationship, but our situation was complicated given the assault and the pending charges. We decided that it would be in the best interest of our children for Travis to work out his issues and that we would not live together during that time. It was a decision taken for the benefit of our family.
[51] Exhibit 12 [35].
The defendant's affidavit also states that she felt embarrassed by the situation as she felt she was in the middle of it all and she was trying to do the best for Mr Hart, her children and her father.[52]
[52] Exhibit 12 [36].
The defendant's evidence is that after Mr Hart moved out of her parents' house, he always kept her informed about his whereabouts and where he lived. The defendant's evidence is that Mr Hart continued to live in the Kalgoorlie area to be close to them and he continued to visit them at her parents' house.[53] The defendant's affidavit goes on to provide details of the various locations Mr Hart was living in prior to his death,[54] and in relation to some of these attaches proof in the form of a tenancy agreement or a letter from the real estate agent.[55]
[53] Exhibit 12 [37].
[54] Exhibit 12 [39].
[55] Exhibit 12, KJC-1 ‑ KJC-2.
The defendant deposes that:[56]
At no stage after the 1 April 2022 incident and up until Travis' passing, did we take a decision that we were no longer in a de facto relationship. Travis had his issues that he needed to work through, and we both accepted that it would take some time to do so as happened many times in the past, but that ultimately we would work through these issues and resume living together again in the future.
[56] Exhibit 12 [38].
The defendant deposes that in December 2022, she and the children moved from her parents' home (at 9 Rodgers Way, South Kalgoorlie) to 11 Rodgers Way, South Kalgoorlie where they continue to live.[57]
[57] Exhibit 12 [42].
The defendant provides evidence as to what occurred between April 2022 to December 2022. The defendant says that she and Mr Hart remained in contact. Her evidence is that they would message and send photos, say 'I love you', talk on the phone regularly, and discuss living together again.[58]
[58] Exhibit 12 [43].
The defendant's evidence is that Mr Hart would travel to Kalgoorlie (from Kambalda where he was living which is 60 km from Kalgoorlie) or she would travel to Kambalda, and they would spend time together doing family activities like going to the pool or park, which the children loved to do. The defendant says that the last time they took the kids to the pool together was on 3 December 2022.[59]
[59] Exhibit 12 [44].
The defendant deposes that:[60]
Travis and I would also have time together without the kids, where we would sit in the house and just talk. On these occasions Travis would come and visit us at my parents' house when my Dad was not there, and we took time to discuss our situation and the issues we faced. Travis was aware of his issues and the impact it had on our relationship. I always supported and continued to support Travis during this time and encouraged him to do counselling, but he never wanted to get involved in counselling.
During this time Travis and I also spoke about living together again. On 2 December 2022, Travis sent me a text message which said, 'I'm willing to do whatever it takes mum you want me to stop drinking I will.'
[60] Exhibit 12 [45] ‑ [46].
The defendant then attaches a copy of this text message conversation to her affidavit.[61]
[61] Exhibit 12, KJC‑3.
The defendant goes on to depose:[62]
On 19 December 2022, Travis and I had a 13-minute phone call during which we discussed Travis returning home to live in our family home. Travis was with the children and called me on Jaylani's phone because he lost his mobile phone. I said words to the effect that Travis needed to give up alcohol and drugs for this to happen. A copy of my phone records showing this call and marked KJC-4, is attached.
On 20 December 2022, Travis borrowed a car to come and see us and he brought birthday presents for Jaylani. We spent about 20 minutes together and agreed that we would further discuss our living situation and how we arranged for him to move back to our new home, after Christmas. I wanted us to work out a way that would be in the best interests of our family and with our upcoming trip to Perth for Christmas this was not the best time to do so, with which Travis agreed.
The trip to Perth was agreed so that my mum, given she has cancer, could spend Christmas with her sisters and was arranged a year in advance.
[62] Exhibit 12 [47] ‑ [49].
The defendant's evidence is that she and Mr Hart were 'sole [sic] mates' and:[63]
… although we had our ups and downs, we loved and cared for each other deeply. Through everything that happened in our lives we always remained connected and always found our way back to each other, no matter what.
[63] Exhibit 12 [61].
The defendant deposes that:[64]
At no stage during any period that we were not living together as a result of the issues mentioned above, did Travis or I have a relationship with anyone else. I always regarded myself, as did Travis, to be in a de‑facto relationship with each other.
[64] Exhibit 12 [62].
The defendant deposes that she and Mr Hart also had 'shared finances' up until his death. In support of this assertion, the defendant relies on the following:[65]
(a)Mr Hart having access to her bank account at Commonwealth Bank through his phone wallet, that he used for purchases of items mainly food;
(b)Mr Hart having access to the defendant's cashless debit card, which he used for cashless purchases such as cigarettes and food (this cashless card scheme was provided by the Commonwealth government but was discontinued around October 2022);
(c)the defendant attaches copies of the bank statement from November 2022 and identifies transactions on 17, 18 and 24 November 2022 where Mr Hart had transferred money to the defendant and various transactions to 'Sportsbet Pty Online', as Mr Hart would use this card for a Sportsbet account in the defendant's name.[66]
[65] Exhibit 12 [50].
[66] Although in the defendant's second affidavit, she notes that Mr Hart would gamble a lot, but not all of these transactions were Mr Hart's, as the defendant would also place bets from time to time.
In the defendant's second affidavit, she deposes that she would transfer money to Mr Hart when he required money for things such as food. On the weekends, when Mr Hart was drinking, he would also ask the defendant to send him money. Further, when Mr Hart was working he would also transfer money to the defendant.[67]
[67] Exhibit 13 [4] ‑ [5].
The defendant attaches copies of the Commonwealth Bank account statements for all of 2022 and draws attention transactions on 21 and 22 January, 9 August, 7 and 9 September 2022, multiple transactions in October and multiple transactions in November 2022 where the defendant transferred money to Mr Hart. The defendant also refers to transactions in November 2022 where Mr Hart transferred money to the defendant.[68]
Summary of defendant's submissions
[68] Exhibit 13 [4].
The defendant relies on the above evidence to submit that although the defendant and Mr Hart were not living in the same house at the time he died, they were still sharing their lives with each other and their children.[69] The defendant submits that neither party was acting in a way that was fundamentally contrary to the interests of the other. In particular, the defendant says:[70]
(a)the defendant and Mr Hart were in a de facto relationship from 2007 until his death in December 2022, with a mutual break after the death of their stillborn daughter between 2010 ‑ 2014;
(b)their de facto relationship endured despite periods of incarceration on the part of Mr Hart;
(c)the defendant and Mr Hart lived together with their children, and they lived together with the defendant's parents for a period to support the defendant's mother who had been diagnosed with cancer;
(d)after Mr Hart was released from prison in July 2019, and again in November 2020, defendant and Mr Hart were living together. This arrangement continued until April 2022, when they mutually decided to temporarily cease living together due to Mr Hart's drug and alcohol issues and the accompanying issues that was creating in the family relationship including the incident with the defendant's father;
(e)at all times during their relationship, the defendant and Mr Hart were committed to caring for and supporting their biological and foster children;
(f)the defendant says that their children, close family members and close friends were aware they were still in a de facto relationship, (noting at times the defendant was reluctant to share their relationship status with the world at large given the drug and alcohol issues of the deceased);
(g)the defendant and Mr Hart shared their finances and supported each other financially; and
(h)both the defendant and Mr Hart intended for their relationship to continue despite not living together and they remained committed to being in a relationship, sharing a life together and raising their children together. The defendant and Mr Hart were making plans for them to resume their living together again and neither was acting in a way that was fundamentally contrary to the interests of the other.[71]
[69] Defendant's outline of submissions filed 6 April 2023 (Defendant's submissions) [22].
[70] Defendant's submissions [22].
[71] Defendant's submissions [25].
The defendant does not dispute that from April 2022 until the date of his death, the defendant and Mr Hart were not living together in the same house. However, the defendant submits that this does not mean that they were not in a de facto relationship. The defendant relies on Britt v Office of the State Coroner[72] as authority for the propositions that first the broad language of s 13A of the Interpretation Act accommodates the variety of ways a de facto relationship may exist;[73] and secondly the concepts of 'live together' and 'reside together' are separate concepts within s 13A of the Interpretation Act, and 'live together' appears to encompass two people, who do not necessarily reside together, sharing lives.[74] The defendant relies on the decision of Reece v Little,[75] for an example of this.[76]
[72] Britt v Office of the State Coroner [2022] WASCA 75.
[73] Britt v Office of the State Coroner [2022] WASCA 75 [18].
[74] Defendant's submissions [23], citing Britt v Office of the State Coroner [2022] WASCA 75.
[75] Reece v Little [2009] WASC 30.
[76] Defendant's submissions [24].
The defendant also says, consistent with the decision in Britt v Office of the State Coroner,[77] not every 'hiccup' in a longer marriage‑like relationship will prevent it from being characterised as a single de facto relationship rather than a series of discrete relationships, and that some issues in a de facto relationship may be characterised as 'bumps in the road'.[78]
[77] Britt v Office of the State Coroner [2022] WASCA 75.
[78] Defendant's submissions [24], citing Britt v Office of the State Coroner [2022] WASCA 75 [75].
In relation to the affidavits filed by the plaintiff addressing whether the defendant and Mr Hart were in a de facto relationship after 1 April 2022, the defendant says that no weight should be given to this evidence for the following reasons:
(a)some of the statements contain important errors, being that the date of the incident between Mr Hart and the defendant's father was in February 2022 and/or that Mr Hart was subject to a violence restraining order;[79] and
(b)the statements in the affidavits are very vague and general and do not specify when the witness was allegedly told information.[80]
[79] ts 30, 36.
[80] ts 30, 31, 34.
In terms of financial assets, the defendant says that neither she nor Mr Hart had significant assets like a house or a car.[81]
Plaintiff's evidence
[81] Defendant's submissions [27].
The plaintiff's evidence, in so far as it is relevant to the question of the status of the relationship between the defendant and Mr Hart, is as follows.[82]
Evidence of the plaintiff
[82] Given a number of the deponents share the same surname, I refer to some of the witnesses by their first name for ease of understanding. No disrespect is intended.
The plaintiff deposes in her first affidavit as follows:[83]
To the best of my knowledge, my brother was not living in a de facto relationship at the time of his death.
Evidence of Miranda Sheree Hart
[83] Affidavit of Rhianon Hart sworn 6 February 2023 (Exhibit 1) [7].
In her first affidavit, Miranda Sheree Hart deposes that she is Mr Hart's first cousin and in Noongar culture is his sister.[84] Miranda's evidence is that in February 2022, Mr Hart contacted her and informed her, in words to the effect, that he had had a confrontation with his ex‑father‑in‑law Victor Cooper, which had caused his relationship with the defendant to end. Miranda deposes that Mr Hart told her that he was charged with the assault of Victor, and that he had upcoming court appearances.[85]
[84] Affidavit of Miranda Sheree Hart sworn 7 March 2023 (Exhibit 3) [2].
[85] Exhibit 3 [7].
Miranda's evidence is that Mr Hart left Kalgoorlie at the start of March 2022 and made his way to Perth, where Miranda then picked him up from Perth and took him to her house in Bunbury.[86]
[86] Exhibit 3 [8].
Miranda's evidence is that Mr Hart told her in words to the effect that:[87]
9.1Katrina had ended their relationship because he assaulted her father.
9.2.Because she had ended their relationship he was going to take his own life.
9.3.I overheard him telling Katrina on the phone 'you don't want me no more, I may as well kill myself'.
[87] Exhibit 3 [9].
Miranda deposes that in the first few days after Mr Hart arrived at her house in Bunbury, she and her partner had to keep a close watch on Mr Hart as he attempted suicide numerous times in and around their home and her partner had to 'cut him down'. Miranda's evidence is that Mr Hart stayed at her house for about one week, and then because of his constant suicide attempts, she arranged for him to stay in Collie as she did not want her children waking up to Mr Hart hanging.[88]
[88] Exhibit 3 [10] ‑ [11].
Miranda deposes to the various locations at which Mr Hart was living at various points after leaving her house and says:[89]
14.Between March and May 2022, I was seeing Travis daily. At no point did he tell me his relationship with Katrina had recommenced and at no point was Katrina living with him in this period.
…
16.Travis returned to Collie in June, for about 1 month. At no point did he tell me his relationship with Katrina had recommenced and at no point was Katrina living with him in this period.
17.At no point after February 2022 did Travis tell me that he had recommenced a relationship with Katrina.
[89] Exhibit 3 [12] ‑ [17].
In her second affidavit, Miranda deposes that Travis did not declare to Centrelink that he was in a relationship with the defendant at the time of his death.[90] In purported support of this statement, Miranda attaches a copy of a single page document which Miranda describes as a 'Centrelink record pertaining to Travis'.[91] There is no explanation in the affidavit as to precisely what this document is, when or where it was obtained or who completed the information contained in the document. On its face, the document appears to be some sort of print out from a screen or computer entry regarding Mr Hart. It has a stamp in the left had corner with the words 'Australian Government Services Australia 3 February 2023 Bunbury Service Centre'. It has Mr Hart's name on it, and an address of 210B Wittenoom Street, Victory Heights and what may be Mr Hart's CRN. The document then has a heading 'Marital Status' and appears to list a series of event dates for 21 October 2009, 11 September 2009, 26 August 2009 and 28 December 1988. Next to each of these event dates is a column headed 'Marital Status'. Next to the 2009 entries is what appears to be a drop down menu with either 'SEP' or 'DEF' listed. I will return to the use to which the plaintiff says this document should be put later in these reasons.
[90] Affidavit of Miranda Sheree Hart sworn 7 March 2023 (Exhibit 6) [2].
[91] Exhibit 6, MSH-1.
Miranda also deposes that Mr Hart was prevented by a Family Violence Restraining order (made for the protection of the defendant's father) from attending the defendant's home since at least February 2022.[92]
Bruce Wayne Hart
[92] Exhibit 6 [5].
Bruce Wayne Hart is an elder of the Hart family and the Collie community and is Mr Hart's godfather.[93]
[93] Affidavit of Bruce Wayne Hart sworn 7 March 2023 (Exhibit 4) [2] ‑ [3].
In his affidavit, Bruce deposes that throughout the years, Mr Hart would come home to Collie on a regular basis, during cultural sorry time, family birthdays, family anniversary and to stay for months at a time when his life became difficult in Kalgoorlie. Bruce's evidence is that Mr Hart would call Bruce and his partner (Annette Hansen) on a daily basis to tell them how much he loved then and wanted to come home to Collie with his children.[94]
[94] Exhibit 4 [4] ‑ [6].
Bruce deposes that:[95]
In 2022, Travis made more frequent trips to Collie to stay with me because of his relationship with Katrina ending. Travis told me that his relationship with Katrina was over.
[95] Exhibit 4 [7].
Bruce deposes that he helped Mr Hart through his suicidal thoughts and attempts in March‑April 2022 and June‑August 2022.[96]
Annette Mary Hansen
[96] Exhibit 4 [8].
Annette Mary Hansen is the partner of Bruce Wayne Hart. Ms Hansen's affidavit is identical in wording to that of Bruce, save for a reference in [6] to Bruce (as opposed to the reference in [6] of Bruce's affidavit to Annette).[97]
Vanessa May Hart
[97] Affidavit of Annette Mary Hanson sworn 7 March 2023 (Exhibit 5) [6].
Vanessa May Hart is Mr Hart's aunt, being the older sister of Mr Hart's mother. Vanessa shared a house with Mr Hart's mother in Collie from the time he was born (1988).[98]
[98] Affidavit of Vanessa May Hart sworn 7 March 2023 (Exhibit 7) [2].
Vanessa deposes that in 2006 Mr Hart's mother decided to move to Kalgoorlie to be near her eldest brother Anthony. Vanessa's evidence is that Mr Hart missed his Noongar family and was 'constantly on the phone ringing home Collie'.[99]
[99] Exhibit 7 [5].
Vanessa's deposes that:[100]
It was a known fact that Travis and Katrina were no longer in a relationship, I had to counsel him on numerous occasions, to let him know that he will be ok, and that we will always be together as a family to love and support each other.
Melyssa Lee Eades
[100] Exhibit 7 [7].
Melyssa Lee Eades deposes that she is the second cousin of Mr Hart, and under Noongar kinship laws he was her nephew.[101] In her affidavit Ms Eades deposes that on 25 April 2022, the defendant sent her a text message, and then attaches a copy of the following text message exchange:[102]
Apr 15, 2022, 14:36, Ms Eades wrote:
'Hey Trina I hope you and Travis and your kids have a lovely Easter Weekend, Send My Love And Hugs to You All [heart emoji].'
Apr 15, 2022, 16:42, the defendant wrote:
'Happy Easter Sis [3 heart emojis].'
Apr 25, 2022, 23:39, the defendant wrote:
'Hey sis just thought I'd let you know me and Travis aren't together anymore xx.'
David Leon Nicholas Thomas
[101] Affidavit of Melyssa Lee Eades sworn 7 March 2023 (Exhibit 8) [2].
[102] Exhibit 8 [3] and MLE-1.
David Leon Nicholas Thomas deposes that he grew up with Mr Hart and considered him to be his brother. Mr Thomas says that he had a close bond and kept in close contact with Mr Hart.[103]
[103] Affidavit of David Leon Nicholas Thomas sworn 7 March 2023 (Exhibit 18) [2].
Mr Thomas deposes that:[104]
3.I was released from prison last year and stayed with my grandfather in Kalgoorlie. I lived with Travis, who was also staying there, for approximately 1 week.
4. Travis told me, in words to the effect, that he was no longer in a relationship with Katrina Cooper but that she would let him see the kids.
[104] Exhibit 18 [3] ‑ [4].
Mr Thomas then deposes that Mr Hart did not have stable accommodation at this time and would be constantly moving between houses and would spend time on the streets. Mr Thomas then identifies two places where Mr Hart told him he was staying.[105]
Karla Marie Hart
[105] Exhibit 18 [5].
Karla Marie Hart was Mr Hart's cultural aunt, with Mr Hart's mother being Karla's cultural sister.[106] Karla is also an artist, filmmaker, actor, musician, performer, speaker and teacher.[107]
[106] Affidavit of Karla Marie Hart sworn 7 March 2023 (Exhibit 11) [4].
[107] Exhibit 11 [2].
The plaintiff relies on Karla's evidence both in relation to Noongar law and cultural customs (which I will address later in these reasons in relation to issue 2) and also in relation to Mr Hart's relationship with the defendant.
In so far as her evidence concerns issue 1, Karla deposes as follows:[108]
22.Travis' relationship with the defendant had broken down more than 7 months prior to the deceased's passing, where this relationship was thought to be finally over.
23.Travis had posted on social media (Facebook) as well as contacted family members to advise he was having trouble even seeing his children and he was about to move back home to country.
24.Attached and marked KMH1 are screenshots of Travis' facebook posts.
25.Travis was homeless at the time of his death and was 'couch‑surfing' and staying wherever he could, even staying at a friend's house in a caravan for a short period of time and would often post on social media, seeking help and assistance with contact with Ms Cooper, including subsequent telephone calls to family in his ongoing endeavours in seeking to have contact with his children.
[108] Exhibit 11 [22] ‑ [25].
In terms of the Facebook posts attached to Karla's statement, counsel for the plaintiff referred the court to the following post in support of the statements in Karla's affidavit:[109]
Facebook post from Mr Hart, 28 Aug 2022:
'The love of my life is gone and I don't no (sic) what to do.'
[109] Exhibit 11, KMH-1.
Counsel for the plaintiff expressly disclaimed any reliance on the statement in paragraph 23 of Karla's affidavit.[110]
Plaintiff's submissions
[110] ts 28.
The plaintiff submits that the defendant's evidence does not establish that the defendant and Mr Hart were in a de facto relationship after 1 April 2022. In making that submission, the plaintiff relies on the evidence filed by the defendant and what she submits it does and does not say, the evidence filed by the plaintiff and the legal authorities regarding when inferences can be drawn.
In relation to the defendant's evidence, the plaintiff makes a number of submissions including:
(a)the defendant's evidence in [5] of the defendant's first affidavit is incorrect in so far as it refers to the defendant and Mr Hart being in a de facto relationship since 2007, when the defendant's own evidence is that de facto relationship ended between 2010 and 2014;[111]
(b)it is uncontroversial that for 8 months before his death, the deceased had not been cohabiting with the defendant. While that is not always required in order for a relationship to be a de facto relationship, the plaintiff says that it is always significant (especially where a couple had previously cohabited);[112]
(c)it is significant that when Mr Hart left the house in April 2022 after the incident with the defendant's father, that the defendant remained with her parents.[113] In the context of the decision of Fairbairn v Radecki,[114] the plaintiff says that this is evidence of the defendant refusing to make reasonable adjustments.[115] The plaintiff accepts that this is partly explained by the defendant's mother having cancer and this would be a reason why the defendant may remain with her mother,[116] but the plaintiff says this does not explain why when the defendant moved out of her parents' house in December 2022, Mr Hart did not come with her or was not invited;[117]
(d)the defendant's evidence about her interactions with Mr Hart after he moved out of her parents' house, establish no more than two separated parents co-parenting their children, as opposed to a de facto relationship. In this regard, the plaintiff says that the defendant's evidence is that the defendant and Mr Hart met up to undertake activities with the children; that it was always Mr Hart who visited the defendant and the children and there is no evidence that the defendant and the children visited Mr Hart at his residence;[118] and that when Mr Hart did visit the defendant and the children, then met only in the front yard;
(e)the evidence does not establish that a sexual relationship continued after Mr Hart left the house;[119]
(f)whilst the defendant's evidence refers to the defendant and Mr Hart talking on the telephone regularly, this is also consistent with parties discussing wanting to resume a ceased relationship;
(g)whilst the defendant's evidence refers to discussions between the defendant and Mr Hart regarding him moving back into the family home, the text messages read as if conditions are required before this can occur;
(h)the plaintiff says that it is also significant that when the defendant ultimately moved out of her parents' house in December 2022 with their children, the deceased was not invited to live with them and they moved into a house next door to the defendant's parents which is a house where Mr Hart could not visit without breaching his bail conditions.[120] Therefore, the plaintiff submits that to the extent that there may have been some prospect of the deceased and defendant reuniting, that was a possibility of no real content;[121] and
(i)the defendant's evidence regarding their 'shared financial resources' does not establish that the defendant and Mr Hart pooled their resources to meet joint liabilities. The plaintiff submits that the transfers identified are not evidence of shared liabilities and assets.[122] Rather, the plaintiff submits that the records merely establish some transfers between two adults. The statements contain other transfers between other adults. Further, the plaintiff submits that the transfers from Mr Hart to the defendant can also be explained as re‑payments for Mr Hart's gambling with Sportsbet.[123]
[111] ts 16.
[112] Plaintiff's outline of submissions (Plaintiff's submissions) [42].
[113] Plaintiff's submissions [47], [79].
[114] Fairbairn v Radecki [2022] HCA 18 [42].
[115] Plaintiff's submissions [18].
[116] Plaintiff's submissions [75].
[117] Plaintiff's submissions [48].
[118] Plaintiff's submissions [77].
[119] Plaintiff's submissions [69].
[120] Plaintiff's submissions [48].
[121] Plaintiff's submissions [49].
[122] Plaintiff's submissions [66]
[123] Plaintiff's submissions [67].
The plaintiff also submits that it is significant what the defendant's evidence does not say.[124] The plaintiff submits this is particularly important in a context where the defendant bears the onus of proving the fact in question. The plaintiff says that the defendant's evidence fails to positively prove the existence of the de facto relationship's defining characteristics, including the existence of continuing sexual relations.
[124] Plaintiff's submissions [54].
In relation to the positive evidence lead by the plaintiff, the plaintiff submits that:
(a)the evidence establishes that since 1 April 2022, the deceased made frequent trips to Collie to stay with family members and he told a number of family members unequivocally that his relationship with the defendant was over;[125]
(b)the plaintiff places particular reliance on the text message sent by the defendant to Ms Eades on 25 April 2022, in which she says that she and Mr Hart are not together anymore;[126] and
(c)the plaintiff submits that the deceased and the defendant were amicable, and the deceased was allowed to see the children, but the deceased was distraught about the breakup, and made attempts at suicide.[127]
[125] Plaintiff's submissions [43].
[126] Plaintiff's submissions [45].
[127] Plaintiff's submissions [44].
The plaintiff submits that taken at its highest, the defendant's evidence is not that the deceased and defendant's physical separation was temporary and that they were still a de facto couple, but rather that the physical separation was open‑ended and subject to unspecified conditions which may never be met. The plaintiff distinguishes the present case from that in Fairbairn v Radecki,[128] where the physical separation was attributable to dementia and aging on the part of the de facto wife.[129]
Centrelink and taxation records ‑ inferences
[128] Fairbairn v Radecki [2022] HCA 18 [42].
[129] Plaintiff's submissions [83].
The plaintiff submits that the defendant has failed to provide, despite request, her income tax returns and Centrelink records, and that this has consequences in so far as the court is tasked with drawing inference.[130]
[130] Plaintiff's submissions [64].
The plaintiff submits that personal income tax returns are required to be lodged annually with the Australian Taxation Office in the approved form, and that approved form includes a requirement to report details of 'a married or de facto spouse'.[131]
[131] Plaintiff's submissions [56] ‑ [60].
The plaintiff also submits that the defendant's bank statements reveal that the defendant was receiving some form of fortnightly payment from Centrelink, evidenced by the reference in the bank statement to payments from 'AUS GOV FAMILIES' in an amount of $634.78.[132] The plaintiff relies on the Centrelink document attached to the second affidavit of Miranda Sheree Hart regarding Mr Hart as evidence that Centrelink records the relationship status of payment recipients, and the reference number for any partner.[133]
[132] Plaintiff's reply submissions [12].
[133] Plaintiff's submissions [62] ‑ [63].
The plaintiff says that the failure by the defendant to produce any of these records, or any explanation for why they do not exist if that is the case, supplies an inference that they have not been produced as they would not have supported the defendant's case, and makes any inference to the contrary more easily drawn.[134]
[134] Plaintiff's submissions [61], [65]; Plaintiff's reply submissions [9], [13] ‑ [14].
In this regard, the plaintiff relies on the principles set out in the decisions of Jones v Dunkel and Blatch v Archer regarding the drawing of inferences.[135] The scope and operation of the principle in Jones v Dunkel was explained by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd in the following terms:[136]
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.
[135] Jones v Dunkel (1959) 101 CLR 298; Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969.
[136] Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 [63].
In Australian Securities and Investments Commission v Hellicar, the High Court summarised the application of this principle in the following terms:[137]
[165]Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.
[166]Lord Mansfield's dictum in Blatch v Archer that '[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted' is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for 'it would have been very improper to have called' the person whose account of events was not available to the court. (citations omitted)
[137] Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 [165] ‑ [166].
The principles in Blatch v Archer and Jones v Dunkel were considered by Murphy JA in Fazio v Fazio.[138] Murphy JA referred with approval to the observations of the majority of the High Court in RPS v The Queen:[139]
It is necessary to keep at the forefront of consideration that the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so. ...
In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that:
'where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference'. (emphasis in original) (footnotes omitted)
[138] Fazio v Fazio [2012] WASCA 72 [135].
[139] RPS v The Queen (2000) 199 CLR 620 [25] ‑ [26].
Having referred to a number of authorities,[140] Murphy JA concluded:[141]
… The authorities point to the need for the trier of fact to evaluate the whole of the evidence, drawing such inferences of fact as are appropriate from the direct evidence. In the evaluation of the evidence and its sufficiency, the judge should consider whether a party could and would ordinarily be expected to give or call certain evidence on an issue. The failure to call such evidence may (not must) allow the judge to infer that the omitted evidence would not have assisted that party's case on the issue, and to:
• take that matter into account in deciding whether and to what extent to accept other evidence on the issue;
• more confidently or readily draw inferences of fact adverse to that party which might otherwise be open on the issue.
[140] Including Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 and Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572.
[141] Fazio v Fazio [2012] WASCA 72 [138].
In Britt v Office of the State Coroner,[142] the court rejected a submission that the lack of any detail or any evidence at all as to the financial nature of the relationship precluded a finding that a de facto relationship existed. The court held that the task of the court is to characterise the nature of the relationship by reference to the evidence that is adduced, and not to speculate about matters not in evidence. However, the court accepted 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.
[142] Britt v Office of the State Coroner [2022] WASCA 75 [15] ‑ [20] (Murphy & Beech JJA), [132] (Mitchell JA).
I have had regard to these legal principles when considering the evidence. In making my decision, I have had regard to the evidence that is before the court and made findings of fact in relation to that evidence. As the reasons that follow detail, the findings that I have made are principally based on the uncontested direct evidence of witnesses or on documentary evidence. In the circumstances, it has only been necessary for me to draw a limited number of inferences, and the matters raised by the plaintiff are not relevant to the question of whether those inferences should be made. The area of dispute between the parties is not generally whether particular findings of fact are open, but rather the characterisation of the evidence and significance or weight that should be given to that evidence in terms of the overall assessment of the various indicia and whether a de facto relationship existed.
Consideration and disposition - de facto relationship
In order to determine whether the defendant and Mr Hart were in a de facto relationship for a period of at least two years prior to his death, it is necessary to consider the various indicators set out in s 13A of the Interpretation Act, as well as any other factors relevant to that determination. That consideration follows.
Length of the relationship
I accept the defendant's uncontested evidence that the relationship between the defendant and Mr Hart originally commenced in around 2007, and by 2008 the defendant was pregnant with their first child who was born on 20 December 2008.[143] Although the defendant's affidavit does not positively state that she and Mr Hart were living together at that point in time, I infer that this was the case, given the defendant's later evidence that she and the Mr Hart 'recommenced living together' in July 2019.[144]
[143] Exhibit 12 [5].
[144] Exhibit 12 [20].
I also accept the defendant's evidence that their relationship ended in 2010 following the still birth of their second daughter, but that they reconciled and decided to recommence their relationship in 2014 when Mr Hart was in prison.[145] I therefore find that the defendant and Mr Hart had been in a relationship since 2014. That is, the defendant and Mr Hart have a lengthy history of being in a relationship.
[145] Exhibit 12 [16] ‑ [17].
In order to determine whether that relationship continued until the date of Mr Hart's death, or whether it ended prior to that point, it is necessary to have regard to the other statutory indicia of a de facto relationship, and the other matters relied on by the parties.
Whether the defendant and Mr Hart have resided together
The defendant and Mr Hart recommenced their de facto relationship when Mr Hart was in prison. Mr Hart remained in prison until July 2019.[146]
[146] Exhibit 12 [20].
I accept the defendant's evidence that she and Mr Hart lived together in the same house in Burt Street Kalgoorlie when Mr Hart was released from prison in July 2019 and that defendant and Mr Hart and the children continued living together until Mr Hart went back to prison in 2020.[147]
[147] Exhibit 12 [20] ‑ [23].
I accept the defendant's evidence that when Mr Hart was released from prison in November 2020 he was reunited with the rest of the family and they all moved into a house together in Pira Avenue, Kalgoorlie.[148] I accept the defendant's evidence that they lived in this house until July 2021, when they all moved into her parents' home in Rodgers Way, South Kalgoorlie to help her mother who had been diagnosed with cancer.[149] The defendant's evidence is that Mr Hart supported her in this move and I accept this evidence. The defendant and Mr Hart then lived with the defendant's parents until the incident with the defendant's father.[150]
[148] Exhibit 12 [27].
[149] Exhibit 12 [28].
[150] Exhibit 12 [30].
I also find that in the period prior to 1 April 2022, the relationship between the defendant and Mr Hart was not easy and had some issues including in relation to Mr Hart's use of illicit drugs and alcohol, mental health issues and experiencing anger issues whenever he was under the influence of alcohol or illicit drugs.[151] The defendant's evidence is that when Mr Hart was experiencing these anger management issues, her family would step in and Mr Hart would leave the home for days at a time. The defendant's evidence is that she and the defendant would talk, and he would come back home again.[152] The defendant's evidence is that this happened all the time throughout their relationship. The defendant's evidence is that whilst it was not the easiest relationship to maintain, she and Mr Hart made it work in their own way.[153]
[151] Exhibit 12 [15].
[152] Exhibit 12 [31].
[153] Exhibit 12.
I therefore find that in addition to the periods of time when Mr Hart was in prison, the relationship between the defendant and Mr Hart was characterised by periods where Mr Hart would need to leave home due to his drug and alcohol and anger issues. Save for the period between 2010 ‑ 2014, I am satisfied that these periods where Mr Hart would leave home were a characteristic of the relationship between the defendant and Mr Hart. These periods of separation were merely examples of what has been described in other decisions as 'bumps in the road, rather than the end of one road and the beginning of another'.[154] In other words, they are not to be characterised as individual instances of the cessation and recommencement of their relationship.
[154] Britt v Office of the State Coroner [2022] WASCA 75 [75].
Finally, I also accept that Mr Hart would visit family and friends in Collie from time to time, but that he would always return home to the defendant and their children in Kalgoorlie. I do not consider this to be evidence of the defendant and Mr Hart not residing together, but rather a case of Mr Hart visiting family and friends before returning to his place of residence with the defendant.
I am therefore satisfied that the defendant and Mr Hart were residing at the same residence between 2014 – 1 April 2022, save for the periods of time when Mr Hart was in prison and for the periods of time when he would temporarily leave the family home to address his drug, alcohol and anger management issues.
Living arrangements after the incident on 31 March 2022
It is not in dispute that an incident occurred on 31 March 2022 between Mr Hart and the defendant's family. The defendant's version of that event is set out in her evidence and summarised earlier in these reasons. A copy of the prosecution notice is also attached to the defendant's second affidavit.[155] No other evidence of the incident was tendered, and I accept the evidence of the defendant in this regard. What is in dispute is the effect of that incident on the relationship between the defendant and Mr Hart.
[155] Exhibit 13.
It is also not in dispute that after the incident Mr Hart moved out of the defendant's parents and was not living in the same residence as the defendant as at the date of his death. Rather, the evidence from the defendant was that Mr Hart's living arrangements were as follows:[156]
(a)in April 2022, after the incident, Mr Hart travelled to Collie to visit family;
(b)around Easter 2022 (Good Friday being on 15 April 2022), Mr Hart went to Albany;
(c)around 17 April 2022, Mr Hart returned to Kambalda and was back at work on 19 April 2022;
(d)from 3 May 2022 to 3 June 2022, Mr Hart rented a serviced caravan at a property in Kambalda West;[157]
(e)from 3 June 2022 until about the end of August 2022, Mr Hart moved into a rental property in Grevillea Crescent, Kambalda West, and entered a week‑to‑week lease agreement which was arranged as part of Mr Hart's contract with the Kambalda Football Club;[158]
(f)from 26 August 2022 until his death, Mr Hart lived with Stan and Leanne Ward at their house in Kambalda West;[159] and
(g)on separate occasions, for short periods of time Mr Hart would stay with Victor Smith and Zoe Thomas in Kalgoorlie (when Mr Hart was in Kalgoorlie and wanted the children to stay the night with him) and Brooke McGrath in Kalgoorlie.
[156] Exhibit 12 [39].
[157] A copy of the Week to Week Lease Agreement is annexure KJC-1 to Exhibit 12.
[158] A copy of a letter from the real estate agent confirming this occupancy is annexure KJC-2 to Exhibit 12.
[159] Exhibit 15 [2] and Exhibit 16 [2].
The plaintiff accepts the above evidence regarding the living arrangements of Mr Hart,[160] and therefore to the extent any of the affidavits tendered by the plaintiff suggest that Mr Hart was homeless or couch surfing, that is not correct.
[160] ts 17, 34.
The defendant and the children remained living with the defendant's parents until December 2022, when they moved into the house next door at 11 Rodgers Way, Kalgoorlie.[161]
[161] Exhibit 12 [42].
The plaintiff accepts that the fact that the defendant and Mr Hart were not living together does not necessarily mean that they were not in a de facto relationship. This is consistent with the decisions of Britt v Office of the State Coroner,[162] SZOXP v Minister for Immigration and Border Protection[163] and Fairbairn v Radecki.[164] However, the plaintiff says that nonetheless it is significant.
[162] Britt v Office of the State Coroner [2022] WASCA 75 [73], [75] (Mitchell JA).
[163] SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 [50].
[164] Fairbairn v Radecki [2022] HCA 18 [42].
The defendant says that the decision not to reside in the same house was a joint decision made by the defendant and Mr Hart, and it was a temporary move to enable Mr Hart to deal with his underlying issues which had led to the incident.[165] The plaintiff says that the relationship ended at some point after the incident and when Mr Hart moved out of the previously shared residence.[166]
[165] Exhibit 12 [35].
[166] Plaintiff's submissions [82].
The length of time after the incident and until the date of Mr Hart's death was approximately nine months. This is a shorter period of time than when Mr Hart was in prison for the first time (being between 2014 ‑ 2019). It is unclear precisely how long Mr Hart was in prison between 2020 ‑ 2021, but it was at least a period of 10 months (given that their son Rylan was born in September 2020 when Mr Hart was in prison, and Mr Hart was released in July 2021). It is therefore similar in length to this second period of not residing together.
However, this period of nine months appears to be longer than any of their other periods of separate living due to Mr Hart's drug, alcohol and anger management issues. The defendant's evidence is that these periods were 'days'[167] whilst the evidence of Bruce Wayne Hart and Annette Mary Hansen's evidence is that they were 'months'.[168]
[167] Exhibit 12 [31].
[168] Exhibit 4 [4] and Exhibit 5 [4].
I accept that the fact that the defendant and Mr Hart were not sharing a residence after 1 April 2022 does not necessarily mean that they were not in a de facto relationship. The cases also establish that even absences for long periods of time may not be inconsistent with the existence of a de facto relationship.[169]
[169] SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 [50].
Rather, the question is whether in all the circumstances, the evidence establishes that the defendant and Mr Hart continued to have a common intention to live together in a marriage-like relationship despite not residing together for the last nine months of Mr Hart's life.[170]
Sexual relationship
[170] See, eg, Britt v Office of the State Coroner [2022] WASCA 75 [73].
There is no express reference in the defendant's evidence to the existence of a sexual relationship with the defendant.
However, the defendant's uncontested evidence is that their first daughter, Jaylani, was born in 2008 and their second daughter, Shiloh, was born in 2010. In early 2020 (after they had reconciled) the defendant found out that she was pregnant with their third child, their son Rylan who was born in September 2020.[171]
[171] Exhibit 12 [24] - [25].
Coupled with my findings about the living arrangements of the defendant and Mr Hart up to the incident with her father, I am satisfied that their relationship involved a sexual relationship up until at least 1 April 2022.
The plaintiff submits that the defendant has not led any evidence as to the existence of a sexual relationship after the incident with her father, which the plaintiff says is significant as the existence of sexual relationship is one of the essential characteristics of a de facto relationship.[172]
[172] Plaintiff's submissions [69].
I accept that no such evidence has been led by the defendant, however I do not, in the context of the relevant facts, consider this to be an indication that a de facto relationship did not exist after 1 April 2022.
The various factors identified in the Interpretation Act are indicators of whether or not a de facto relationship exists, but are not essential. The reference to a sexual relationship contained in s 13A(2)(d) is:
whether there is, or has been, a sexual relationship between them
I have previously found that a sexual relationship did exist prior to 1 April 2022.
Statements made by Mr Hart to others
The plaintiff submits that the evidence establishes that following the incident Mr Hart made frequent trips to Collie, where he told a number of family members unequivocally that the relationship was over. In this regard, the plaintiff relies on the affidavits of the plaintiff, Miranda Sheree Hart, Bruce Wayne Hart, Annette Mary Hansen, Vanessa May Hart, Melyssa Lee Eades, David Leon Nicholas Thomas and Karla Marie Hart. I have considered each of these affidavits below.
In relation to the eight affidavits relied on by the plaintiff in this respect, three of the affidavits (being those of the plaintiff, Vanessa and Karla) do not contain any statement that Mr Hart told the deponent that his relationship was over.
The plaintiff's evidence on this issue is limited to the following single paragraph in her first affidavit:[193]
To the best of my knowledge, my brother was not living in a de facto relationship at the time of his death.
[193] Exhibit 1 [7].
The plaintiff provides no explanation for why she holds this view or what information this is based on. The plaintiff does not depose that Mr Hart told her that he was not in a de facto relationship with Mr Hart.
Vanessa May Hart's evidence in relation to this issue is limited to the following paragraph:[194]
It was a known fact that Travis and Katrina were no longer in a relationship, I had to counsel him on numerous occasions, to let him know that he will be ok, and that we will always be together as a family to love and support each other.
[194] Exhibit 7 [7].
Vanessa does not state the basis for her statement or how or why 'it was a known fact'. Vanessa does not expressly state that Mr Hart told her that his relationship with the defendant was over, however the reference to Vanessa needing to counsel Mr Hart on numerous occasions suggests that he must have told her something about the relationship. However, there is no evidence as to precisely what was said or when.
The affidavit of Karla Marie Hart addresses both Mr Hart's relationship and Noongar law and culture. In so far as it addresses Mr Hart's relationship, Karla deposes:[195]
22.Travis' relationship with the defendant had broken down more than 7 months prior to the deceased's passing, where this relationship was thought to be finally over.
23.Travis had posted on social media (Facebook) as well as contacted family members to advise he was having trouble even seeing his children and he was about to move back home to country.
24.Attached and marked KMH1 are screenshots of Travis' facebook posts.
[195] Exhibit 11 [22] ‑ [24].
Karla does not provide any explanation as to how she knows that Mr Hart's relationship with the defendant had broken down 'more than 7 months prior' to Mr Hart's death. Karla does not depose that Mr Hart told her this. Counsel for the plaintiff relied on the following Facebook post attached to Karla's affidavit:
Facebook post from Mr Hart, 28 Aug 2022:
'The love of my life is gone and I don't no (sic) what to do.'
It is not clear what or who Mr Hart is referring to in this Facebook post and no other explanation or context is provided.
Karla's statement in [23] of her affidavit is not supported by the Facebook posts attached as KMH1, and counsel for the plaintiff did not rely on that paragraph.[196]
[196] ts 28.
Of the affidavits that do depose to Mr Hart saying that his relationship with the defendant was over, the affidavits of Bruce, Annette and David, do not provide any details as to when in 2022 Mr Hart's statements were made or how often.
Bruce Wayne Hart's evidence on this issue is limited to the following:[197]
In 2022, Travis made more frequent trips to Collie to stay with me because of his relationship with Katrina ending. Travis told me that his relationship with Katrina was over.
[197] Exhibit 4 [7].
Annette Mary Hansen is the partner of Bruce Wayne Hart. Her statement is identical in the relevant respect to Bruce's statement and has the same limitations.
David Leon Nicholas Thomas deposes he was released from prison 'last year' (meaning 2022) and that upon his release stayed with his grandfather in Kalgoorlie. Mr Thomas's evidence is that Mr Hart stayed there for approximately one week:[198]
Travis told me, in words to the effect, that he was no longer in a relationship with Katrina Cooper but that she would let him see the kids.
[198] Exhibit 18 [4].
Mr Thomas does not detail when in 2022 Mr Hart stayed with him and when he told him that the defendant and Mr Hart were not in a relationship.
I accept the evidence of the witnesses that Mr Hart made the statements detailed. However, I am of the view that the lack of detail in the affidavits limits the weight to which this evidence can be put. The fact that someone may tell a third party that their relationship is over, does not necessarily mean that it is permanently broken down. All relationships have their issues and 'bumps in the road'. This is particularly relevant in this case given the past history and nature of the relationship between Mr Hart and the defendant and their past periods of not residing together whilst Mr Hart addressed his drug, alcohol and anger management issues. Without further explanation or details about when the statements were made in relation to the incident, or how often they were made, I place limited weight on this evidence.
The affidavit of Miranda Sheree Hart is more detailed than the above affidavits. Miranda's evidence is that Mr Hart contacted her in February 2022 and told her that he had had a confrontation with the defendant's father, which had caused his relationship with the defendant to end. Mr Hart told her that he had been charged with assault. Miranda's evidence is that Mr Hart left Kalgoorlie at the start of March 2022 and made his way to Perth, where she collected him and took him to her home in Bunbury.[199]
[199] Exhibit 3 [8].
Miranda's evidence is that Mr Hart told her that:[200]
9.1Katrina had ended their relationship because he assaulted her father.
9.2. Because she had ended their relationship he was going to take his own life.
9.3. I overheard him telling Katrina on the phone 'you don't want me no more, I may as well kill myself.'
[200] Exhibit 3 [9].
Miranda goes on to depose that between March and May 2022 she was seeing Travis daily and at no point did he tell her that his relationship with the defendant had recommenced. Miranda also deposes that Mr Hart returned to Collie in June for a month and again at no point did he tell her that his relationship with the defendant had recommenced.
A difficulty with Miranda's evidence is that she has incorrectly identified the dates for the incident and when Mr Hart left Kalgoorlie. The incident occurred on 31 March 2022 as opposed to February 2022. Mr Hart did not leave until the start of April 2022. The defendant says this error is significant as the question of the dates is very important in the present case.[201] The plaintiff says that the dates themselves are not critical, and what is important is that the incident with the defendant's father is the catalyst for Mr Hart leaving Kalgoorlie and coming to stay with Miranda, and for ending the relationship.[202]
[201] ts 29 ‑ 30.
[202] ts 10.
Miranda also deposes that Mr Hart returned to Collie in June and stayed for about a month. This would appear to be contrary to the evidence of the defendant regarding where Mr Hart was living during this period of time.
Whilst I accept that Miranda is mistaken as to the date of the incident and when Mr Hart came to stay with her in Bunbury, I accept Miranda's evidence about the circumstances surrounding Mr Hart coming to stay with her and that Mr Hart told her that the defendant had ended the relationship because he assaulted her father. However, I conclude that this statement was most likely made in April 2022 and not at the start of March 2022.
However, I do not consider that this statement (or the other statements made to family members), when considered in the context of all of the evidence before the court, is evidence that the relationship between the defendant and Mr Hart had permanently broken down. All relationships have 'bumps in the road', and on any account the incident and its aftermath were one such bump. When this evidence is considered in the broader context of the defendant's evidence as to the reasons why Mr Hart left the shared residence, the continuing interactions between the defendant and Mr Hart, their continuing support for their children, the continuation of their shared financial resources and the discussions being held in December 2022 about the possibility of Mr Hart returning to live with the defendant and the children, I do not consider that the statements by Mr Hart to his family members are sufficient to lead to the conclusion that the relationship had irretrievably broken down.
It is also relevant that Miranda does not depose that Mr Hart told her at any other time during 2022 that his relationship with the defendant was over. Rather, Miranda's evidence is that Mr Hart never told her that the relationship had recommenced. The fact that Mr Hart may not have told her that he continued to be in a relationship with the defendant, does not necessarily mean that he was not. He may simply have never told Miranda.
Text message from the defendant
Melyssa Lee Eades' affidavit attaches a text message exchange between herself and the defendant on 15 April and 25 April 2022.[203] On 25 April 2022, the defendant texted as follows:
'Hey sis just thought I'd let you know me and Travis aren't together anymore xx.'
[203] Exhibit 8 [3] and MLE-1.
The plaintiff places significant weight on this text message, as a clear statement from the defendant that the relationship between the defendant and Mr Hart had broken down.
In relation to the text message, the defendant confirms that she sent the text message and that it was sent during the period where the police were investigating the incident,[204] and she was embarrassed by the incident.[205] The defendant then goes on to provide the following explanation:[206]
I sent this text message as I did not want people to know that Travis and I were still together, because I was concerned people would think that I am weak by having Travis back so soon after the assault on my father; and
Travis and I both knew that our de facto relationship continued, although we decided that it was best at that point not live together but we continued to talk and would live together again when the time was right.
[204] Exhibit 12 [72(a)].
[205] Exhibit 12 [72(b)].
[206] Exhibit 12 [72(c)] – [72(d)].
Counsel for the defendant submitted that the text message is consistent with the factual circumstances, as the defendant and Mr Hart were not together in the sense that they weren't residing together at that stage.[207] I do not accept that this is what was intended to be conveyed by this text message, as it is contrary to the defendant's evidence in relation to the text message as contained in her first affidavit.[208]
[207] ts 33.
[208] Exhibit 12 [72].
This text message is the only evidence of the defendant telling anyone that her relationship with the defendant had broken down or was over. When considered in the context of all of the evidence before the court, I do not accept that it is evidence that the relationship between the defendant and Mr Hart had permanently broken down. All relationships have 'bumps in the road', and on any account the incident and its aftermath were one such bump. The message was sent in the month immediately following the incident. When the text message is considered in the broader context of the defendant's evidence as to the reasons why Mr Hart left the shared residence, the continuing interactions between the defendant and Mr Hart, their continuing support for their children, the continuation of their shared financial resources and the discussions being held in December 2022 about the possibility of Mr Hart returning to live with the defendant and the children, I do not consider that a single text message is sufficient to lead to the conclusion that the relationship had irretrievably broken down.
Care for and support of children
The defendant's evidence is that Mr Hart loved his children and their foster children 'dearly and would do everything in his power to see them all happy'.[209] The defendant's evidence is that they undertook family activities together, including attending sporting events, parks, pools and visiting other family members. The defendant's evidence is that Mr Hart would take the children out for treats and shopping on pay day and they would all attend Mr Hart's football games.[210] I accept this evidence.
[209] Exhibit 12 [29].
[210] Exhibit 12 [29].
The evidence of the defendant is that she and Mr Hart continued to operate as a family and spend time together with their children doing activities like going to the pool or the park, either in Kalgoorlie or in Kambalda after the incident with her father. On occasions the defendant and the children would go and support Mr Hart at his football matches. The last time the defendant and Mr Hart took the children to the pool was 3 December 2022. The defendant's evidence is also that the children would sometimes stay with Mr Hart overnight in Kalgoorlie when he was staying with Victor Smith and Zoe Thomas in Kalgoorlie. Again, I accept this evidence.
Whilst the plaintiff accepts that the defendant and Mr Hart undertook family activities and cared for their children, the plaintiff says that the evidence is consistent with two separated parents co‑parenting their children, and not a de facto relationship.
In particular, the plaintiff says that the defendant's evidence is that Mr Hart visited the defendant and the children at the defendant's parents' house, but there is no evidence that the defendant and the children visited Mr Hart at his residence. Further, when Mr Hart did visit the defendant's parents' house, he only stayed in the front yard and did not go inside the house.
I do not accept the plaintiff's submissions in this regard. As the cases establish, there can be a wide variety of de facto relationships.
I accept that the defendant's evidence does not expressly state that she visited Mr Hart at any of his residences after 1 April 2022. However, I do not accept that the fact that Mr Hart visited the defendant's parents' house (and not vice versa) is necessarily evidence of a co‑parenting relationship. There may be any number of reasons why a couple who are residing in separate houses, may choose to meet up at only one of those houses. In this instance, the defendant and Mr Hart had five children, the youngest being around 2 years old during the material period of time, and the other children being of school age or older. Mr Hart's residence was also 60 km away. In these circumstances, it is readily understandable that Mr Hart may be the individual who travelled to meet the rest of the family.
I also do not accept that the defendant's evidence was that Mr Hart only ever met with her or the children out of the front of her parents' house. The plaintiff's submission in this regard was based on [34] of the defendant's first affidavit which provides as follows:
Travis still came to my parents' home to visit us and did so when my dad was not at home, or on occasion when my dad was present, I would meet Travis out the front to keep him away from my dad.
This paragraph says that when the defendant's father was present, the defendant would stay out the front of the house, but if the defendant's father was not present, he may come inside the house. This is also consistent with the defendant's second affidavit where she describes keeping her father advised of when Mr Hart would be visiting her parents' house, and there being no objection from her father.[211]
[211] Exhibit 13 [9] - [10].
Given the number and ages of the children, it is also readily understandable that many of the family activities may be centred around children's activities. However, the defendant's evidence is not limited to family interactions involving the children. The defendant's evidence is also that she and the children would sometimes watch Mr Hart's football matches,[212] and also that she and Mr Hart spent some time together without the children, that time usually being spent sitting in her parents' house talking about their situation and the issues they faced.[213]
[212] Exhibit 12 [40].
[213] Exhibit 12 [45].
I also accept the defendant's evidence that one of the reasons Mr Hart moved out of the shared family residence, was that the defendant and Mr Hart decided that it would be in the best interests of their children for him to take some time to work out his issues, and that they not live together during this period of time.[214]
[214] Exhibit 12 [35].
In all the circumstances, I am satisfied that since 2014, including in the period after 1 April 2022, the defendant and Mr Hart cared for and supported their children in a manner consistent with being a marriage‑like relationship.
The reputation, and public aspects, of the relationship between them
There is no evidence before the court of any public records or documents detailing the nature of the relationship. There are no taxation returns or Centrelink records of the defendant. I therefore make no findings about the identified status of the relationship in official documents.
To the extent that the defendant and Mr Hart made statements to third parties as to the nature of their relationship, I have detailed and considered that evidence earlier in these reasons when considering the degree of mutual commitment by each to a shared life.
In addition to what is discussed earlier in these reasons, the defendant relies on the affidavits of Stanley James Ward and Leanne Faye Ward. Mr and Mrs Ward's evidence is that Mr Hart lived with them from 26 August 2022 until his death. Both depose that the defendant and Mr Hart were still in a relationship.[215] However, neither give any real explanation or detail as to why they hold this view. Accordingly, I give limited weight to this evidence given its very general nature.
[215] Exhibit 15 and Exhibit 16.
Given the relationship between the defendant and Mr Hart was characterised by a history of difficulties, and periods of not residing together whilst Mr Hart was in prison or working on his drug, alcohol or anger management issues, I consider it is reasonable to conclude that third parties may not necessarily know or accurately understand the status or nature of the relationship at any one point in time and therefore I give limited weight to this evidence.
Conclusion – issue 1
Having considered all the evidence before the court, in light of the various findings I have made and set out earlier in this section, I find on the balance of probabilities that the defendant and Mr Hart had been in a de facto relationship since 2014 and that de facto relationship continued up until the date of Mr Hart's death.
I am satisfied that when all the evidence is considered, the defendant has demonstrated that on the balance of probabilities that she and Mr Hart commenced their relationship in 2014 and that they were residing at the same residence between 2014 and 1 April 2022, save for the periods of time when Mr Hart was in prison and for the periods of time when he would temporarily leave the family home to address his drug, alcohol and anger management issues. During this period, the defendant and Mr Hart had a sexual relationship, had a degree of shared financial resources for their day‑to‑day needs and recreation, had a mutual commitment to a shared life and cared for and supported their children.
I am also satisfied that the defendant has demonstrated on the balance of probabilities that this de facto relationship continued after an incident involving her father on 31 March 2022, when they made a joint decision that Mr Hart would temporarily leave their residence in April 2022 so that he could work on his drug, alcohol and anger management issues following an incident with the defendant's father. I am satisfied that the defendant has proven on the balance of probabilities that the de facto relationship continued after this period of time and until Mr Hart's death, notwithstanding they did not reside in the same premises. I am satisfied that prior to Mr Hart's death, the defendant and Mr Hart were discussing the possibility of him returning to live in the same residence, and that the incident is an example of a 'bump in the road' in their relationship and consistent with the past history of their relationship.
Issue 2 – other relevant factors
As I have concluded that the defendant and Mr Hart were living in a de facto relationship for a period of at least two years immediately before Mr Hart's death, the defendant is the person most likely to receive a grant of administration of Mr Hart's estate and is ordinarily the person who will be granted carriage of Mr Hart's funeral by the court.
However, this is only the ordinary rule, and it remains necessary to consider all the other relevant factors to see if there is any reason why the ordinary rule should not be followed in this case.
Wishes of the deceased's family
The wishes of the defendant are that Mr Hart be buried in Kalgoorlie with their daughter Shiloh, so that they can be together and so that the defendant and her children are able to visit Mr Hart's grave.[216]
[216] Exhibit 12 [6].
Mr Hart's daughter, Jaylani, also wishes for her father to be buried in Kalgoorlie with her sister Shiloh. Jaylani's evidence is that if her father is buried in Kalgoorlie, and she is feeling sad, she will be able to visit him. However, if he were to be buried in Collie, she will be unable to visit him because she is in school in Kalgoorlie which is more than 10 hours away.[217]
[217] Exhibit 14 [5] ‑ [6] and JC‑1.
The wishes of the plaintiff and other members of Mr Hart's extended family are that he be buried in Collie in accordance with Noongar custom and so that he is buried with his mother.
Wishes of the deceased
The evidence of the defendant,[218] Jaylani[219] and Stanley Ward[220] is that Mr Hart told them on more than one occasion that he would like to be buried in Kalgoorlie with Shiloh. The defendant says that this is consistent with where Mr Hart made his home and had lived for more than 20 years and always returned.[221] It is not clear when Mr Hart made these statements to Mr Ward.
[218] Exhibit 12 [6], [55].
[219] Exhibit 14 [4] and JC-1.
[220] Exhibit 15 [5].
[221] Exhibit 12 [55].
The plaintiff's evidence is that Mr Hart wished to be buried in Collie,[222] and this is also the evidence of Vanessa May Hart[223] and Jessica Hart.[224] However, none of these witnesses depose to when Mr Hart told them this and whether it was before or after the death of his daughter Shiloh. The plaintiff refers to Mr Hart's wishes being known amongst the Noongar community through his published song lyrics.[225] The defendant's evidence is that this song was written by Mr Hart and his mother when he was much younger and did not have children or his own family.[226]
[222] Exhibit 1 [3].
[223] Exhibit 7 [6].
[224] Exhibit 10 [6].
[225] Exhibit 1 [4].
[226] Exhibit 12 [67(b)].
In all the circumstances, I give greater weight to the evidence of the defendant and Jaylani in this regard, as Mr Hart's wishes have been expressed to each after the birth of his children, and therefore take this change in his family into account. I cannot be certain when the statements referred to by the other witnesses were made.
Noongar cultural customs
It is not in dispute that Aboriginal cultural practices and customary law are relevant to the assessment of whether there is any reason why the ordinary rule should not be followed in this case.
The plaintiff relies on the affidavit evidence of Noongar elders Jessica Hart[227] and Karla Marie Hart,[228] as well as the findings of Wilcox J in Bennell v Western Australia[229] in this respect.
[227] Exhibit 10.
[228] Exhibit 11.
[229] Bennell v Western Australia (2006) 153 FCR 120 [645] - [647].
The combined effect of this evidence is that in Noongar culture, a person should go back to their homeland to be buried on their own country when they die, so that their spirits can rest in peace alongside their ancestors.[230]
[230] Exhibit 10 and Exhibit 11 [26] - [29], [31].
Mr Hart was born in Collie, and he has a large number of family members buried in Collie, including his mother and his uncles Mark and Anthony.[231] Both his mother and his uncle Anthony were buried in Collie, despite living and passing away in Kalgoorlie, as were some other relatives.[232]
[231] Exhibit 11 [28].
[232] Exhibit 11 [11] - [17].
The evidence is that it is an important part of the cultural practices of Mr Hart's family that the family recognises and marks anniversaries by visiting the family burial grounds on significant dates, and therefore it is important for Mr Hart to be buried in Collie to be included in this practice.[233]
[233] Exhibit 11 [29] - [30].
The defendant's evidence is that not all of Mr Hart's family are buried in Collie, including his grandmother who is buried in Gnowangerup.[234] The defendant says that she has and will always respect all Aboriginal culture and if Mr Hart is buried in Kalgoorlie, it will not mean that his Noongar culture is less respected. The defendant says that it would be culturally appropriate for Mr Hart to be buried in Kalgoorlie.[235] To the extent that the defendant is purporting to give evidence as to Aboriginal burial customs, I prefer the evidence relied on by the plaintiff in this regard, as this evidence is given by elders in the Noongar community.
Costs/logistical matters
[234] Exhibit 12 [67(c)].
[235] Exhibit 12 [56].
Both parties have indicated that they will be in a position to fund and organise Mr Hart's funeral. The plaintiff's evidence is that the South West Aboriginal Land and Sea Council will pay for the funeral,[236] whilst the defendant's evidence is that she has the funds to do so, and had already organised a funeral before the present application and the associated application for an injunction saw her suspend the funeral pending the outcome of this application.[237]
[236] Exhibit 19 [3].
[237] Exhibit 12 [64].
The defendant's evidence is that if granted carriage of the funeral she is more than happy to work with Mr Hart's extended family to make the funeral respectful and fitting and by including his family as pall bearers.[238]
[238] Exhibit 12 [65].
During the hearing, counsel for the plaintiff was instructed to advise that if the plaintiff was granted carriage of the funeral, the plaintiff and Mr Hart's extended family would take steps to ensure that Jaylani was supported financially and otherwise to visit her father's grave.[239]
Coroner's Decision
[239] ts 24.
The defendant says that significant weight should be placed on the decision of Coroner Holgate to release Mr Hart's body to the defendant.[240] The defendant relies on the decision of Smith J in Dann v Office of the State Coroner[241] in support of this submission.
[240] Defendant's submissions [14] - [17].
[241] Dann v Office of the State Coroner [2020] WASC 486 [61].
I accept that the decision of Coroner Holgate is relevant to the factual background, and explains why Mr Hart's body was released to the defendant. However, the decision was made on the basis of the material before the coroner and this application is not by way of an appeal from Coroner Holgate's decision. I therefore consider that I am required to exercise my discretion afresh, having regard to all of the information before me.
I do not understand Smith J to be saying anything to the contrary in Dann v Office of the State Coroner.[242] In that case her Honour was considering an urgent application for an injunction to restrain a funeral and considered, amongst other matters, that in the factual circumstances of that case that the decision of the coroner to release the body to the senior next of kin (who was the deceased's wife) was a relevant factor to consider. This was not the only factor relied on by Her Honour.
Conclusion – issue 2
[242] Dann v Office of the State Coroner [2020] WASC 486 [61].
When considering these factors as a whole I accept that some factors favour granting carriage of Mr Hart's funeral to the plaintiff, including the wishes of his extended family and the evidence of Noongar burial practices. However, there are other factors which favour granting carriage of Mr Hart's funeral to the defendant, including the expressed wishes of Mr Hart and the wishes of the defendant and Jaylani that Mr Hart be buried in Kalgoorlie with Shiloh and sufficiently close to his children so that they may visit him if they wish.
On balance, I do not consider that any of the above matters are sufficient to justify a departure from the usual approach to the exercise of the court's discretion.
Conclusion
It is clear from the evidence filed in this matter that Mr Hart was a proud Noongar man and was a much loved father, partner, sibling and family man. It is unfortunate that Mr Hart's family have been unable to reach an agreement as to who should have conduct of his funeral and the appropriate arrangements. In these circumstances, it falls to the court to determine who that should be by applying the established legal principles.
In all of the circumstances, I am of the opinion that the defendant, as Mr Hart's de facto for a period of at least two years before his death, and therefore the person who is most likely to receive a grant of administration of Mr Hart's estate, should have conduct of Mr Hart's funeral. I therefore dismiss the plaintiff's application.
I will hear from the parties as to appropriate orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Honourable Justice Seaward
28 APRIL 2023
- AGLC
- Hart v Cooper [2023] WASC 132
- Case
- [2023] WASC 132
- Decision Date
CaseChat Overview and Summary
The court examined various factors to determine the existence of a de facto relationship, including the duration of the relationship, the nature of the living arrangements, and the presence of a sexual relationship. The court found that the defendant and the plaintiff had been in a relationship that involved a sexual relationship and had shared a residence together. However, the court also considered the period after 1 April 2022 and whether the relationship continued to meet the criteria for a de facto relationship. The court concluded that the fact that the parties were not sharing a residence after 1 April 2022 did not necessarily mean that they were not in a de facto relationship. The court found that the evidence established that the parties continued to have a common intention to live together in a marriage-like relationship.
The court found that the parties had a de facto relationship up until the plaintiff's death on 1 April 2022. The court noted that while there was no evidence of a sexual relationship after this date, this was not a determining factor in the existence of a de facto relationship. The court found that the relationship met the legal criteria for a de facto relationship. The court made orders in favour of the defendant, recognising the existence of a de facto relationship for the purposes of the relevant legislation.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I accept that the fact that the defendant and Mr Hart were not sharing a residence after 1 April 2022 does not necessarily mean that they were not in a de facto relationship. The cases also establish that even absences for long periods of time may not be inconsistent with the existence of a de facto relationship.[169][169] SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 [50]. Rather, the question is whether in all the circumstances, the evidence establishes that the defendant and Mr Hart continued to have a common intention to live together in a marriage-like relationship despite not residing together for the last nine months of Mr Hart's life.[170] There is no express reference in the defendant's evidence to the existence of a sexual relationship with the defendant. However, the defendant's uncontested evidence is that their first daughter, Jaylani, was born in 2008 and their second daughter, Shiloh, was born in 2010. In early 2020 (after they had reconciled) the defendant found out that she was pregnant with their third child, their son Rylan who was born in September 2020.[171][171] Exhibit 12 [24] - [25]. Coupled with my findings about the living arrangements of the defendant and Mr Hart up to the incident with her father, I am satisfied that their relationship involved a sexual relationship up until at least 1 April 2022. The plaintiff submits that the defendant has not led any evidence as to the existence of a sexual relationship after the incident with her father, which the plaintiff says is significant as the existence of sexual relationship is one of the essential characteristics of a de facto relationship.[172][172] Plaintiff's submissions [69]. I accept that no such evidence has been led by the defendant, however I do not, in the context of the relevant facts, consider this to be an indication that a de facto relationship did not exist after 1 April 2022. The various factors identified in the Interpretation Act are indicators of whether or not a de facto relationship exists, but are not essential. The reference to a sexual relationship contained in s 13A(2)(d) is:whether there is, or has been, a sexual relationship between them I have previously found that a sexual relationship did exist prior to 1 April 2022. The plaintiff submits that the evidence establishes that following the incident Mr Hart made frequent trips to Collie, where he told a number of family members unequivocally that the relationship was over. In this regard, the plaintiff relies on the affidavits of the plaintiff, Miranda Sheree Hart, Bruce Wayne Hart, Annette Mary Hansen, Vanessa May Hart, Melyssa Lee Eades, David Leon Nicholas Thomas and Karla Marie Hart. I have considered each of these affidavits below. In relation to the eight affidavits relied on by the plaintiff in this respect, three of the affidavits (being those of the plaintiff, Vanessa and Karla) do not contain any statement that Mr Hart told the deponent that his relationship was over.