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…
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- 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
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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.