Reid v Love and North Western Adelaide Health No. Scciv-03-324

REID v LOVE AND NORTH WESTERN ADELAIDE HEALTH SERVICE
[2003] SASC 214
Civil (Ex tempore)

DUGGAN J. The inter partes summons in this matter filed by the plaintiff, Maxwell John Reid, seeks a declaration that he is entitled to arrange for the funeral of a deceased woman who died on 6 February 2003. He also seeks an order for the release of the deceased’s body to him for that purpose. Mr Reid is the son of the deceased.
The first defendant, Mr Edward Love, has contested the application made by Mr Reid. He claims to have been the de facto husband of the deceased for over 30 years until her death. After her death he successfully applied to this Court for an order pursuant to the Family Relationships Act (1975) s 11, declaring him to have been the putative spouse of the deceased. The second defendant is the Queen Elizabeth Hospital. The deceased died at the hospital and her body has been kept there pending the result of this application.
It is obvious that a decision must be made in this matter as soon as possible and, for this reason, I will deliver extempore reasons.
It would appear that the deceased did not make a will. It seems she had no property at the time of her death, except for personal belongings. It is highly unlikely that letters of administration will be taken out.
There is authority to the effect that the court has jurisdiction to make orders of the type sought by the plaintiff, even if there is no executor, or a grant of letters of administration. I do no more than refer to the cases of Calma v Cesar & Others (1992) 106 FLR 446; Smith v Tamworth City Council (1997) 41 NSWLR 680; Jones v Dodd (1999) 202 LSJS 102 and Dodd v Jones [1999] SASC 458.
I have admitted into evidence a series of affidavits tendered by the plaintiff and the first defendant. In addition, I have admitted various documents as exhibits, most of them coming from authorities with which the deceased and Mr Love had dealings.
As will be seen, there is considerable conflict as to the nature and duration of Mr Love’s association with the deceased. I will attempt to summarise the contentions put forward in the affidavits.
Mr Love stated in his affidavit that he was born in 1938. He said he commenced to live with the deceased in 1969. He said they travelled around South Australia, Western Australia and Victoria for about six or seven years. He said that about 21 years ago he and the deceased went to live at 20 Peterhead Street, Largs Bay. The house was rented from the Aboriginal Housing Association. According to him, they lived in the house together for 14 years. After that they moved to a house at 21 Mary Street, Peterhead and lived there for about four years. He said they moved there in 1995 or 1996.
Mr Love said that he moved into an apartment at Yandra Street, Taperoo in 1997 and shifted his belongings there, although he said he spent most of his time at 21 Mary Street. He then said that in 1999 or 2000 the deceased moved into his apartment at Yandra Street. According to Mr Love, he lived with the deceased in a de facto relationship for over 30 years. He said that on many occasions the deceased told him that she wanted to be buried with him at Wellington down by the river. In 1998 they filled out forms to set up an account with the Aboriginal Burial Fund.
Exhibited to Mr Love’s affidavit is a statement from Dr Peter Lake, a senior medical officer with the Port Adelaide Community Health Service. He said that Mr Love and the deceased had been patients of the health service for some years. There is evidence before me of admission forms from the Queen Elizabeth Hospital which relate to various occasions on which the deceased was treated there. A number of these records refer to Mr Love as being the deceased’s “next of kin” or “de facto”. The dates on some such records are 26 October 1993, 13 November 1996, 25 May 2000 and 8 February 2003. The record of 25 May 2000 also refers to Mr Love as “the husband”.
The records are of some assistance, but care must be exercised in drawing inferences from them in that there is a possibility of descriptions of patients made some time before being used for present purposes, particularly if the patient is uncooperative or uncommunicative when admitted.
Rosemary O’Loughlin stated, in her affidavit, that she has known Edward Love and the deceased for more than 30 years. She said that the deceased was her aunty. She said she commenced boarding with them at the flat at Yandra Street, Taperoo in August or September 2002, and stated that they were living together until the death of the deceased. Ivan Dare stated in his affidavit that he had known the deceased since the late 1950s or early 1960s, and he has known Edward Love for at least 30 years. He said that for the whole of the period he had known him, Mr Love was in a de facto relationship with the deceased. Margaret Myles is Edward Love’s sister. She said she had known the deceased since 1969. She said that her brother Edward Love lived with the deceased during 1998 and 1999 and then moved to Yandra Street. They lived there together from 1999 to 2002.
Rita Joslin said that she is the deceased sister. She was born in 1929. She said that the deceased was a partner of Edward Love for 34 years. She said they lived together in a de facto relationship until the death of the deceased. Ms Joslin said that she was born into the Kokotha culture and that she knows of no cultural belief which requires a member of the family to be buried in Kokotha land. She said the deceased left the Kokotha culture a long time ago.
Cecelia Salter is also a sister of the deceased. She said she was born in 1927, and that the deceased’s relationship with Mr Reid was very tense. She can remember an occasion when the deceased took out a restraining order against him which was in force between 1988 and 1992. However, she said that the deceased and Mr Love were in a de facto relationship for over 34 years, and they were in that relationship at the time of the deceased’s death. She also knew of no cultural belief which required a member of the family to be buried in the Kokotha land. She said the deceased spoke of being buried with Mr Love. She said the deceased told her she had arranged for Mr Love to be nominated as the person to receive the funeral expenses to be paid by the Aboriginal Community Benefit Fund.
I should also mention here that there is evidence that contributions were paid to this fund in the name of the deceased up to 11 February 2003. The payments commenced on 21 March 1998. The records of the fund refer to Mr Love as the deceased’s defacto.
Sheila Goldsmith stated in her affidavit that she is the deceased’s niece and has known her for 25 years. She said that the deceased and Mr Love were partners and were living together since 1978. She said she has been visiting them daily for the whole time they have lived at Taperoo.
Mr Love’s nephew, Wayne Rankine, stated that he has known Mr Love all his life and that he has a very close family relationship with him. He also referred to the close relationship between the deceased and Mr Love. He said that in February 2003 he moved next door to the flat rented by Mr Love at Yandra Street. He said that, although he knew the deceased rented a house at Peterhead, she was constantly at the flat at Yandra Street and would sleep there on most nights.
Finally, Mr Clem Love, Edward Love’s younger brother, stated he first met the deceased in 1969 at his mother’s house. He said that he did not know why the deceased and Mr Love had two houses, but every time he visited Mr Love at Taperoo the deceased was with him.
Then there are the affidavits filed on behalf of the plaintiff. Mr Reid stated in his affidavit that he is the eldest child of the deceased. He said the deceased died in the Queen Elizabeth Hospital on 6 February 2003 at the age of 66 years. Mr Reid stated that his parents were married in 1951 and they separated in 1965. He said his father died in 1983. According, to Mr Reid the deceased was an alcoholic. When she left Port Augusta and came to Adelaide she developed a relationship with Mr Love. He said it was an extremely volatile relationship and that both were alcoholics.
He referred to assaults by Mr Love on his mother. He said that he moved to Adelaide about 18 years ago and, until the last two or three years he had almost daily contact with his mother. He said he took her shopping and to the doctor. He said she had her own house, but would stay at Mr Love’s place when she was drinking. As far as he is aware, his mother did not leave a will. He also said that, apart from a few personal belongings, she had no property. According to Mr Reid, his mother’s parents were traditional initiated Kokotha people. When he was a child his mother took him to traditional Kokotha ceremonies near Port Augusta. He said her traditional beliefs were strong. He stated that it is the traditional belief of the Kokotha people that for a person’s spirit to be at rest they must be buried in their own country. He said it would be a great source of anxiety to him and his family if this were not the case with his mother. He said if his mother were buried at Wellington the extended family would not be able to visit her grave.
Roxanne Colson is the youngest daughter of the deceased. She said that after her parents separated in 1965, her mother lived in Adelaide while she remained and grew up in Port Augusta. She said it was not until three years ago when her husband obtained work in Adelaide that she had close contact with her mother. At that stage her mother was living in her own house and had been doing so for at least 15 years. She said that two years ago she came to Adelaide to live with her mother. She said she was aware that her mother had developed a close relationship with Mr Love. She said they were drinking companions for many years. Their relationship was also volatile.
She said her mother made it plain to her that she had no affection for Mr Love. She referred to an occasion when her mother was in hospital following a heart attack and she said during that time her mother told her she wanted to go home and be buried at Port Augusta.
Roxanne Colson’s husband, Dennis Colson, stated in his affidavit that he was aware that there had been some form of relationship between the deceased and Mr Love, although it seemed to him that they were drinking friends. She said that after he received employment in Adelaide he moved here and commenced living at Mary Street, Peterhead with the deceased. He said he lived at this address for three years prior to the deceased’s death and at no time did Mr Love live with the deceased during that period. However, he said that he was aware that, from time to time, she went to his place in order to drink. He said that, in the last three years, she had spent approximately two weeks at his place. He said it was not true to say that Mr Love cohabited with the deceased for a period of five years prior to her death.
I turn then to the considerations which some of the decided cases have held to be relevant in determining cases of this nature. In Smith v Tamworth City Council (1997) 41 NSWLR 680 Young J referred to aspects of the right to burial. After summarising a number of authorities he said at 693:
“It is useful to state the propositions that follow from the above analysis and from the analysis subsequently appearing in these reasons before dealing with the facts and submissions in the present case:
1If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased’s body, the person named as executor has the right to do so.
2Apart from appointing of an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with disposal of parts of the body, a person has no right to dictate what will happen to his or her body.
3A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
4When no executor is named, a person with the highest right to take out administration will have the same privilege as the executor in proposition 1.
5The right of the surviving spouse or de facto spouse will be preferred to the right of children.
6Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.”
In Jones v Dodd (1999) 202 LSJS 102 the Full Court held that other factors may be relevant in addition to the common law principles referred to by Young J. Perry J, who delivered the main judgment of the court, said:
“In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the matter in question.”
In Jones v Dodd and the subsequent case of Dodd v Jones [1999] SASC 458 issues of Aboriginal culture arose. Those matters were considered to be of relevance although not necessarily decisive in every case. Doyle CJ said:
“Also in considering that statement I have to bear in mind that while the wishes and the views of the defendant could be classed as religious and spiritual, and perhaps the wishes and views of the plaintiff cannot, nevertheless the plaintiff’s own beliefs have cultural significance because they are beliefs that would be widely shared in contemporary Australian society.
So it seems to me that the de facto wife of the deceased, and his children do have a strong claim to have their wishes respected. Their wishes to bury the deceased where he and they lived is an understandable one. One would expect that usually the wishes of a spouse, either at law or de facto, would be respected in relation to the place of burial”
There is no doubt that Mr Love and the deceased lived in a de facto relationship for many years. A vital issue in the case, however, is whether the relationship existed at the time of the deceased’s death. If it did, then the authorities suggest that this is a consideration of particular importance. On the other hand, if there was no such relationship at the time of the deceased’s death, even though there had been a longstanding relationship previously, then there is little basis for the claim that a former partner is entitled to decide relevant aspects in relation to the burial.
It must be said that Mr Love’s concern for the deceased cannot be doubted. He had a long relationship with the deceased. There is little doubt that it was a volatile relationship and the parties fell out from time to time. Unfortunately, the excessive consumption of alcohol seems to have been a feature of the relationship. Nevertheless, it cannot be denied that it was an enduring relationship.
In Burns v Richards 7 BPR 15104, Cohen J dealt with a similar case. This was a case of a longstanding de facto relationship, but the vital question was whether the relationship was in existence at the time of the death of the deceased. Cohen J said:
“The question of whether a de facto relationship existed up to the time of the death would not, of course, take into account the time a deceased person might spend in hospital when the absence or breaking up of the relationship would be involuntary. The courts have held, however, it is a question of fact as to whether there was an end to a de facto relationship. It is not the same as in a marriage, where a divorce and the resultant decree absolute terminates the relationship which existed. Hibberson v George (1989) 12 Fam LR 725.”
In that case, Cohen J went on to decide that on the facts before him the de facto relationship had terminated before the death of the deceased, so that the next of kin had the right to bury the deceased.
It is unnecessary to go into all the evidence which has been canvassed today. However, I regard it as a matter of particular significance that, towards the end of 1995, Mr Love made an application to the Aboriginal Housing Authority to leave his then place of residence at 21 Mary Street, Peterhead, where he was living with the deceased in order to live elsewhere.
In the Aboriginal Housing Authority records the comment is made by one of the housing officers: “Applicant is currently living with a de facto at 21 Mary Street, Peterhead. Said the relationship is not working out and he wishes to have his own place. Requesting housing at Port Adelaide, Alberton, Queenstown or surrounds”. Mr Love said in his affidavit that in 1997 he was allotted an apartment at Yandra Street Taperoo and he said that when Roxanne, the deceased’s daughter moved into Mary Street, the deceased went to live with him at Yandra Street.
Mr Love’s reason for them having two houses up to the time of the deceased’s death is difficult to follow. There is a suggestion by his counsel that this was to facilitate the two of them getting separate pensions. They did, in fact, receive separate pensions. However, Mr Love did not advance this reason in his affidavit. This must be taken with the evidence of Roxanne Coulson who said that she lived with her mother for two years prior to her death. She said her mother lived at Mary Street and she said that, although her mother visited Mr Love at Yandra Street from time to time, her place of residence was at Mary Street. Mr Coulson supported this evidence including the fact that Roxanne was living at Mary Street.
Roxanne Coulson’s claim that she was living at Mary Street at the time is also corroborated by documentation in the case.
I have not lost sight of the evidence to the contrary which suggests that the two were living together at about this time. However, it is my view that a form of relationship continued in the two years before her death, but that it could not be described as a de facto relationship. I have not overlooked the payments which were made to the Aboriginal Community Benefit Fund, but it should be borne in mind that these payments commenced in 1998, and it seems that they were paid by means of direct debit.
It is unnecessary for me in the circumstances to consider the aspect of traditional beliefs.
After considering all the evidence, I have decided that Mr Reid and his immediate family have the duty and right to bury the deceased as their next of kin.
Accordingly, the orders of the court will be as follows:
1That Mr Reid is entitled, as against Mr Love, to have the body of the deceased delivered to him for the purpose of making burial arrangements.
2Direct that the Queen Elizabeth Hospital deliver up the body of the deceased to Mr Reid for the purposes of burial.
3No order as to the costs of the application.

[2003] SASC 214

4 April 2003