BRITT -v- OFFICE OF THE STATE CORONER [2022] WASCA 75 (24 June 2022)

Bullivant v Holt [2012] FamCA 134

Burrows v Cramley [2002] WASC 47

Calma v Sesar [1992] NTSC 17; (1992) 2 NTLR 37

Clarence v Crisp [2016] FamCAFC 157; (2016) 311 FLR 433

Davies v Richardson [2011] NSWSC 810

Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613

Fairburn v Healey [2009] WASC 114

FO v HAF [2006] QCA 555; [2007] 2 Qd R 138

Frail v Shorey [2021] NSWSC 122

G v O [2018] WASCA 211; (2018) 53 WAR 393

G v O [2022] WASCA 23

Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182

H v P [2011] WASCA 78

Hart v Hart [2010] WASC 329

Jackamarra v Office of the State Coroner [2021] WASC 301

Johnson v George [2018] QSC 140; [2019] 1 Qd R 333

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

Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94

King v Commissioner for Consumer Protection [2018] WASCA 194

Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701

M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 223; (1992) 35 FCR 359

Morris v Hanley [2001] NSWCA 374

Mourish v Wynne [2009] WASC 85

Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546

Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257

R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Saunders v The Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226

Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680

The State of South Australia v Smith [2014] SASC 64; (2014) 119 SASR 247

White v Williams [2019] NSWSC 437; (2019) 99 NSWLR 539

Williams v Williams [1882] UKLawRpCh 60; (1882) 20 Ch D 659

Ground 1.1: did the primary judge err in principle? 6

Ground 1.2: did the judge err in finding for the purpose of determining who was most likely to obtain a grant of administration that the parties had been in a de facto relationship for two years at the time of death? 10

Appellant's submissions 10

Ground 2: did the judge err in finding that the relationship did not come to an end in late 2021? 16

Coroner's decision 22

Primary proceedings 23

Primary judge's orders 23

Scope of the court's discretion 24

Provisions of the Administration Act 28

Determining the existence of a de facto relationship 30

Evidence relevant to the existence and duration of a de facto relationship 32

Affidavit of Ms Schoppe 32

Affidavit of Antoinette Sullivan 34

Affidavit of Natasha Walsh 36

Records relating to the deceased's stay at the Rendezvous Hotel 37

Primary judge's reasons for decision 38

The appeal to this court 40

Error in failing to make a finding as to when the relationship began 41

Re-exercise of the discretion 44

Appellant's submissions 45

Respondent's submissions 46

Nature of Ms Schoppe's relationship with the deceased 46

Did the de facto relationship end before the deceased's death? 47

Did the de facto relationship begin before 20 April 2020? 49

Who appears more likely to be granted administration? 51

Manner in which the discretion ought to be exercised 51

Ground 1.1: did the primary judge err in principle?

1 We have had the advantage of reading the reasons of Mitchell JA in draft. We, too, would dismiss the appeal, but for the reasons that follow. We gratefully adopt the matters set out in [43] ‑ [109] of his Honour's reasons. We would add by way of background that:

1. In the coronial decision, which was before the learned primary judge, the coroner concluded that the deceased's body should be released to Ms Schoppe on the basis that the evidence appeared to establish that Ms Schoppe and the deceased had lived in a de facto relationship for at least two years, before the death of the deceased. The judge, as noted below, said that he needed to make his 'own determination' on the issue of the alleged de facto relationship.

2. Both before the coroner and in the primary proceedings, Ms Schoppe's case was to the effect that she and the deceased had been in a de facto relationship for over two years, up to the date of the deceased's death on 20 April 2022.

2 By ground 1.1, the appellant contends, in effect, that the primary judge erred in principle by not making a finding as to whether there was a de facto relationship between Ms Schoppe and the deceased for the period of at least two years up to the date of the deceased's death, having regard to s 15(1) of the Administration Act 1903 (WA), which 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. (emphasis added)

3 The question of whether the judge made the alleged error of principle involves a consideration of the proper construction of his Honour's reasons. His Honour delivered urgent extempore reasons, and they are to be construed in the context that:

1. The hearing before the primary judge occurred on 7 June 2022.

2. At the hearing on 7 June 2022, the evidence and closing submissions were completed by about 3.45 pm, and the judge delivered extempore reasons a few minutes later.

3. The principal issue in dispute before the primary judge was whether Ms Schoppe and the deceased had been in a de facto relationship for the purposes of s 15(1) of the Administration Act for at least two years. The issue was so identified in Ms Britt's written submissions.[1] Counsel for Ms Britt submitted in opening:[2]

[T]he fundamental issue before your Honour today in this application is really whether or not ... Ms Schoppe ... was, in fact, in a de facto relationship for a period of two years immediately prior to the death of the deceased[.]

In the remainder of his opening, counsel repeatedly referred to Ms Schoppe's burden of establishing a de facto relationship for the 'requisite' period of time.[3]

4. Counsel for Ms Britt also submitted in closing, a few minutes before the delivery of extempore reasons, that:[4]

in order to comply with the ... legislation, there needs to have been a relationship from - working back from the date of death for two years ... [I]f we take the relevant date for the two‑year period to be April 2020, there is nothing to show that April 2020 was, in any way, a material point at which the relationship moved or had moved from the simple relationship of boyfriend‑girlfriend[.]

4 In this context, his Honour delivered urgent extempore reasons, which included the following:[5]

I will give my decision now. Tomorrow will be about seven weeks since [the deceased] died, and I don't think this matter should be any longer delayed. [The deceased] died on 20 April 2022. He died near Karratha where he was working as a fly-in fly-out worker. He died without having a will, and therefore a determination as to who is to receive his body and organise his funeral all go in accordance with the Administration Act.

In this case, [Ms Britt] is [the deceased's] mother, and [Ms Schoppe] claims that she was in a de facto relationship with him ... Both parties have made submissions to the coroner for the release of the body, and the coroner found that [Ms Schoppe] was entitled to the release of [the deceased's] body because [Ms Schoppe] was in a de facto relationship.

Of course, that was a conclusion reached by the coroner, and I need to make my own determination ... essentially what the issue comes down to is whether or not [the deceased] and Ms Schoppe were in a de facto relationship.

Ultimately, the principal determination I need to make today is whether or not [Ms] Schoppe was in a de facto relationship with the deceased ... And that is determined by section 13A of the Interpretation Act, which deals with de facto relationships and a de facto partner.

5 His Honour then turned to the length of the relationship:[6]

So turning to the first factor, that is the length of the relationship, the longest period that the relationship might be said to exist was from sometime in late January 2020 to the date of [the deceased's] death in April 2022 ... The evidence of Ms Schoppe is that they met in late November 2019, that she entered a relationship with him in December 2019, and that [the deceased] moved into her house in late January 2020.

... [W]hat has been submitted by [Ms Britt] is that you effectively cannot identify the start date of the relationship as being of the nature of a de facto relationship; however, in determining when the de facto relationship started, that will often be a process of looking back rather than requiring evidence of when they moved in.

And insofar as this relationship is concerned, I note that the evidence of ... Ms Schoppe is that [the deceased] moved into her house in late January 2020. (emphasis added)

6 His Honour also referred to the length of the relationship by reference to whether (as alleged by Ms Britt) it had terminated prior to April 2022:[7]

There is, of course, the other point made by [Ms Britt] that there was a - the end of the relationship in about November/December 2021. The matter is further complicated by the fact that [the deceased] was a fly in, fly out worker, and that the spent a period of time in prison for breaching parole.

Having regard to that, despite the fact that he was a fly in, fly out worker, it appears that apart from perhaps some period in November/December, which I will come to in due course, he was a fly in, fly out worker but was staying either with Ms Schoppe or at Ms Schoppe's mother's house.

7 His Honour then continued, by reference to s 13A(2) of the Interpretation Act 1984 (WA), to consider the following factors: (1) the residence of the parties and the nature and extent of common residence; (2) whether there was a sexual relationship; (3) the degree of financial dependence or independence and the ownership, use and acquisition of property; (4) the degree of mutual commitment by the parties to a shared life; and (5) the reputation and public aspects of their relationship. His Honour considered these matters with regard to the period from the commencement of cohabitation in late January 2020 up to 20 April 2022, and concluded:[8]

So that means that I've found that [Ms Schoppe] was in a de facto relationship, and, in those circumstances, that she is entitled to conduct the funeral of [the deceased] ... [and] there's nothing disclosed in this case to depart from the common and usual approach ... that, in this case, the person with the highest rank to take out administration will arrange the burial [of the deceased].

8 It must be accepted that, in identifying the issue and in stating his conclusions, the primary judge did not refer to the need for a de facto relationship to have existed for two years as at the time of death. The question is how the judge's finding - expressed that Ms Schoppe was in a de facto relationship with the deceased - is to be construed.

9 In construing a judge's reasons, as in evaluating the adequacy of such reasons, it is necessary to have regard to, and make allowance for, the fact that the reasons were given extempore.[9]

10 Although his Honour did not, in terms, refer to his other findings in relation to the matters under s 13A(2) of the Interpretation Act as part of 'a process of looking back' to assist in 'determining when the de facto relationship started',[10] as we would understand the content and structure of his Honour's reasons read as a whole, that is what his Honour did. The second paragraph of the passage from the judge's reasons quoted in [5] above is evidently the judge's response to the submission set out at point 4 of [3] above. Given the repeated emphasis in the appellant's submissions on the need for Ms Schoppe to establish a de facto relationship of at least two years by the time the deceased died, we would be slow to conclude, from extempore reasons delivered with those submissions fresh in the judge's mind, that the judge had overlooked the temporal need so emphasised by the appellant's counsel. Further, in referring to the coroner's decision, the judge said the coroner concluded that '[Ms Schoppe] was entitled to the release of [the deceased's] body because [Ms Schoppe] was in a de facto relationship'. It is not readily to be supposed that this summary reveals that the judge failed to notice the two‑year duration that was an element of the coroner's conclusion. Rather, it tends to suggest that in his extempore reasons the judge used a shorthand phrase for the conclusion that the parties had been in a de facto relationship for two years.

11 For these reasons, when his Honour found toward the end of his extempore reasons that Ms Schoppe had been in a de facto relationship and was thereby entitled to conduct the funeral of the deceased, his Honour, in our opinion, necessarily implicitly found that the de facto relationship had subsisted for at least two years in the period up to 20 April 2022. It is regrettable that his Honour did not say so in terms, but we would not characterise his Honour's reasons as contended for by the appellant. We would dismiss ground 1.1.

Ground 1.2: did the judge err in finding for the purpose of determining who was most likely to obtain a grant of administration that the parties had been in a de facto relationship for two years at the time of death?

12 In relation to ground 1.2, read with the appellant's submissions, counsel for the appellant contended that the judge erred in law in that his Honour's findings, with reference to the factors under s 13A(2)(a) ‑ (e), (g) and (i) of the Interpretation Act 1984 (WA), were not open on the evidence in relation to:

1. the length of the de facto relationship;[11]

2. whether the deceased and Ms Schoppe resided together[12] and the nature and extent of their common residence;[13]

3. whether there was a sexual relationship between the deceased and Ms Schoppe;[14]

4. the degree of financial dependence and arrangements for financial support;[15]

5. the degree of mutual commitment to a shared life;[16] and

6. the reputation and public aspects of the relationship between the parties.[17]

13 The standard of appellate review of a finding that a de facto relationship existed has not been authoritatively determined in this court.[18] We proceed on the basis that it is not necessary to demonstrate error of the kind applicable to appeals against discretionary judgments. The appellant must nevertheless demonstrate error on the part of the primary judge. In relation to the drawing of inferences, the approach to be taken was explained by Beaumont and Lee JJ in the following passage from Minister for Immigration, Local Government and Ethnic Affairs v Hamsher,[19] which has been adopted many times by this and other intermediate appellate courts:[20]

[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.

14 Counsel for Ms Britt's submissions emphasised the lack of detail, or any evidence at all, as to aspects of the relationship, including the financial relations between the deceased and Ms Schoppe. He submitted that the lack of detail precluded any finding of a de facto relationship. We do not accept this submission.

15 First, it is to be accepted that the general principle is that all evidence is to be weighed according to the proof which was in the power of one side to have produced and the power of the other side to have contradicted,[21] and in the context that:[22]

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 ... to give evidence leads rationally to an inference that the evidence of that party ... would not help the party's case. (citations omitted)

16 Secondly, these principles are to be applied in the circumstances of this case having regard to the nature and urgency of the proceedings, and making some allowance for the emotional turmoil associated with recent bereavement.

17 Thirdly, many of the matters on which there was no direct evidence could properly be the subject of inference. For example, while there was no direct evidence as to when - indeed whether - a sexual relationship commenced between Ms Schoppe and the deceased, it can readily be inferred that this occurred before the deceased moved into Ms Schoppe's home. Similarly, the absence of direct evidence from Ms Schoppe that the deceased and Ms Schoppe shared the same room - a matter emphasised by counsel for the appellant[23] - does not preclude the drawing of the obvious inference that they shared a room and a bed.

18 Fourthly, the broad language of s 13A of the Interpretation Act, like s 4AA of the Family Law Act 1975 (Cth), accommodates the great variety of ways a de facto relationship may exist.[24] The relevance and relative significance of the factors listed in s 13A(2) will depend upon the circumstances of the case and the particular relationship.[25]

19 Fifthly, the extent of detail provided or not provided on particular matters is to be evaluated in the context of the weight of the evidence considered as a whole. Detailed evidence of the living arrangements and financial contributions by the deceased was not essential to the proper characterisation of the relationship. As Mitchell JA notes, while it may be accepted that matters about which there is no evidence, or the absence of detailed evidence, have the potential to affect the assessment of the nature of the relationship, the task of the court is to determine the existence or otherwise of a de facto relationship by reference to the evidence that was adduced and the inferences that may fairly be drawn from the evidence.

20 Sixthly, the circumstances of the present case, including the absence of cross‑examination, do not readily lend themselves to an inference that Ms Schoppe, a self‑represented litigant, deliberately withheld details which would not have helped her case.

21 In our opinion, the findings made by his Honour were open on the evidence. We agree with the reasons given by Mitchell JA at [130] ‑ [132]. In particular, in relation to points 2 ‑ 6 in [12] above, it was open on the evidence to find (putting aside for the moment the duration of the relationship) that:

1. The parties resided together, when the deceased was not working away at the mine site, at Ms Schoppe's residence as from late January 2020, save for the period in which he was in gaol for breach of parole.

2. The nature of the common residence was not as lodger and landlady, or as 'housemates', or in the nature of merely a casual boyfriend/girlfriend relationship.

3. The relationship involved a sexual relationship prior to the commencement of their cohabitation in late January 2020.

4. Apart from their respective personal belongings and their dogs, and a car which they treated as jointly owned, and apart from Ms Schoppe's house in which they resided, the parties had few assets. This was not a case where, for example, there was other real property, or the parties had bonds, shares, and the like. Also, as noted later, there was uncontradicted evidence that Ms Schoppe provided financial support to the deceased while he was in custody for breach of parole from December 2020 to April 2021 and in the period of his illness associated with seizures in the six months preceding his death.

5. There was social media evidence as to the deceased being in a committed relationship, which his friends on Instagram, it may be inferred, would have understood as a reference to Ms Schoppe. The parties' relationship as a 'couple' was also evidently recognised by the deceased's grandmother, 'Nan', by Ms Schoppe's mother, brother and other family members, and her friends, as well as by the deceased's employer.

6. The circumstances viewed as a whole pointed to the parties having a mutual commitment to a shared life.

22 As to the length of the de facto relationship, it was open for the learned primary judge to find that the requisite relationship existed by at least 20 April 2020. Evidence that a state of mind or state of affairs existed subsequently may justify an inference that the state of mind or state of affairs previously existed.[26] Retrospectant evidence will often be of particular importance in determining when and whether the parties entered into a de facto relationship because, unlike in the case of a formal marriage, there will typically be no single event in a de facto relationship which indelibly stamps not only the legal characterisation of the relationship but its commencement date.[27] All of the circumstances of the case must be considered as a whole.

23 In this case, the following matters appear to us to be most significant:

1. Ms Schoppe and the deceased first met in November 2019, when the deceased was on parole. Ms Schoppe informed him that she was not interested in pursuing a relationship with a motorcycle club member.

2. The deceased and Ms Schoppe commenced their relationship in December 2019, and, it may be inferred, the deceased had ceased his association with the motorcycle club to the satisfaction of Ms Schoppe.

3. Prior to late January 2020, it may be inferred, the relationship included sexual relations.

4. By late January 2020, the relationship had developed to the point where the deceased and Ms Schoppe commenced cohabitation. As noted earlier, it could not fairly be inferred that the cohabitation bespoke a relationship of landlady and lodger, housemates, or merely casual boyfriend and girlfriend.

6. Whilst there was no evidence that the pregnancy was 'planned', the child was evidently a welcome product of the relationship. The deceased was 'excited to be a dad' and shared the 'exciting' news with family - his sister.[28] The following month, when there was a miscarriage in late July, the deceased was 'devastated'. These matters, considered in the context of the relationship as a whole, point to a maturity and solidity in the relationship by June/July 2020, which, it may be inferred, did not emerge overnight at that point in time. Thus, we reject the appellant's submission that the evidence as to the pregnancy and miscarriage 'doesn't say anything about whether or not there was a marriage‑like relationship'.[29]

7. After Ms Schoppe's step‑father died on 12 December 2020, both the deceased and Ms Schoppe went to stay with Ms Schoppe's mother to provide support.

8. The relationship, despite the deceased's health problems with seizures after 16 November 2021 and his earlier incarceration for breach of parole, endured until the date of the deceased's death on 20 April 2022 (as further discussed in [25] ‑ [33] below). The relationship was not dissolved by the parties, but by the death of the deceased.

24 In these circumstances, in our opinion it was open to his Honour to find that by at least 20 April 2020, being five months into the relationship, some three months after the commencement of cohabitation and several weeks prior to the pregnancy, the parties were in a de facto relationship for the purposes of determining who would likely obtain letters of administration of the deceased's estate. Further, as discussed in [25] ‑ [33] below, it was open to the judge to find that the de facto relationship continued up to the date of the deceased's death. We would dismiss ground 1.2.

Ground 2: did the judge err in finding that the relationship did not come to an end in late 2021?

25 In relation to ground 2, the evidence included evidence to the effect that:

1. In a text message dated 5 November 2021 from Ms Schoppe to the deceased's 'Nan', Ms Sullivan, Ms Schoppe wrote that she and the deceased were not together anymore.

2. The deceased suffered a head injury around 16 November 2021, causing an epileptic seizure.[30]

3. On 22 November 2021, Ms Schoppe texted 'Nan' and told her that she and the deceased were 'still not back together ... but he wants me to love him'.

4. The deceased stayed at the Rendezvous Hotel for several days in late November/early December 2021.

5. On 22 December 2021, the deceased exchanged Facebook messages with Ms Walsh, in which the latter enquired whether the deceased had 'sorted [things] out' with Ms Schoppe. The deceased said that he was 'trying to' and he was 'quiet because [he was not] on [Facebook] much'.

6. Around 27 December 2021, Ms Schoppe texted Ms Sullivan and said, 'We had [the deceased] come to Christmas'. The implication is that the deceased spent Christmas with Ms Schoppe's family at her invitation.

7. Ms Walsh in her affidavit annexed a text message between her and the deceased, on around 26 February 2022, in which the deceased told Ms Walsh that he was looking for a new place, but had found nothing.

8. The deceased suffered three serial bilateral tonic clonic seizures on 28 February 2022, and underwent scans and imaging in early March 2022.

9. The medical record in April 2022 indicated that the deceased's address was Ms Schoppe's house.

10. Ms Schoppe was the person the deceased's employer contacted effectively immediately about the incident at work in which the deceased died, and was the person with whom the police subsequently dealt regarding his death.[31]

11. Ms Schoppe contacted other family members of the deceased with whom she knew the deceased was on good terms (his sisters) to inform them that he had passed away.

26 There was also evidence of Ms Schoppe, unchallenged by cross‑examination, to the effect that:

1. she continued to support the deceased emotionally and financially in the six‑month period he was unwell prior to his death on 20 April 2022; and

27 The evidence referred to in points 1, 3 and 6 of [25] above was contained in an affidavit of Ms Sullivan filed on behalf of Ms Britt on the day prior to the hearing. The evidence referred to in points 5 and 7 of [25] above appears to have first emerged at the hearing when the affidavit of Ms Walsh was tendered. When counsel for Ms Britt tendered Ms Walsh's affidavit, Ms Schoppe informed the court that she did not have a [32]py of that document.32 The evidence was outside of the time for the filing of affidavits provided for by the judge. The evidence referred to in point 4 of [25] above emerged from subpoenaed documents returnable at the hearing on 7 June 2022. Ms Schoppe, unlike the appellant, was unrepresented throughout the primary proceedings.

28 Although Ms Schoppe did not seek an adjournment, or apply to give oral evidence about the matters emerging from this late evidence, it may be inferred that this was not a calculated forensic decision on her part but, rather, reflected an absence of appreciation as to the procedural courses potentially available to her, at a time of, it may be presumed, personal distress.

29 Ms Britt submitted to the primary judge and to this court that particularly in light of the evidence referred to in points 1 and 3 ‑ 7 of [25] above, any de facto relationship had ceased by around November 2021.

30 Counsel for the appellant accepted in this appeal that the lateness of the service of this material on Ms Schoppe in the particular circumstances of this case may affect the weight to be fairly attached to it.[33] In our view, in the circumstances, little weight ought be attached to it, save insofar as it contained admissions by Ms Schoppe. In our opinion, the most cogent evidence in the late material were the texts from Ms Schoppe to Ms Sullivan to the effect that she and the deceased were 'not together' (on 5 November 2021) and 'still not back together' (on 22 November 2021). The important question to our mind is whether and to what extent these texts are to be construed as admissions that the de facto relationship had ceased by around November 2021, as contended for by the appellant. Even in that regard, the weight to be given to the texts as admissions is diminished by the fact that Ms Schoppe did not have an opportunity to explain them.

31 The primary judge's findings on this topic included, relevantly:[34]

In this case, I accept that there was a period from late November to early December 2021 when they were not residing together. For part of that period, [the deceased] was living in the Rendezvous, but that is a short period of time. ...

It seems to me that although there were interruptions to the relationship by reason of breach of parole and [the deceased being a fly‑in/fly‑out worker], that nevertheless it was a de facto relationship and that period in November 2021 to December 2021 should be characterised as a deterioration of quality of the de facto relationship. It didn't mean that it [came] to an end. And I refer to the decision of Hill J in Jackamarra and Others v the State Coroner [2021] WASC 301.

A de facto relationship ends when one party decides they no longer wish to live in the required degree of mutuality, where the (indistinct) live apart. It is not necessary this be communicated to the other party, provided the party acts on the decision. What seems apparent to me is that [the parties here] were trying to work out the relationship.

32 It may be accepted that there was some falling out in the relationship shortly before the deceased's head injury on 16 November 2021, and that the deceased stayed elsewhere in late 2021 for at least some period of time. However, there is no clear evidence of a permanent rupture of the relationship, and there was evidence of continuity. It was open to the judge to find that the parties' mutual commitment to a shared life had not ceased. The evidence of Ms Schoppe referred to in [26] above was unchallenged by cross‑examination and was not inherently improbable, having regard to the unchallenged primary facts and the evidence in points 9 ‑ 11 of [25] above. Although the matter is, to our mind, finely balanced, ultimately, we are not persuaded that his Honour's findings on this topic were not reasonably open.

34 For completeness, we note that, at the hearing of the appeal, counsel for the appellant submitted that Ms Schoppe's evidence as to the deceased being 'excited' about the pregnancy and conveying the news to the deceased's sister had been struck out by the primary judge as 'hearsay'. Counsel was asked to demonstrate the correctness of this submission by reference to the passage in the transcript in the primary proceedings in which the judge struck out this evidence. Counsel did not do so at the hearing of the appeal. In an email sent to the court at 1.00 pm on 23 June 2022, after notice that judgment would be delivered on 24 June 2022, the appellant's solicitors wrote to the court advising of the relevant page which, in their opinion, showed that the evidence had been struck out. Three points should be made about this:

1. At the hearing of the appeal, counsel did not seek leave to make supplementary submissions on this, or any other, topic after the conclusion of the hearing of the appeal, and no leave has otherwise been sought or obtained. In these circumstances, the additional material sought to be submitted by the appellant's solicitors ought not be received.[35]

2. In any event, the transcript page referred to does not disclose that the judge ordered the striking out of the evidence. The judge found that the deceased was excited when he heard of the pregnancy,[36] so the judge evidently did not strike out the

sentence the subject of the objection. Moreover, absent an express order, and in a context where (1) it appears that Ms Schoppe was not heard on that particular objection, and (2) the objection was ill‑founded as the evidence plainly went to state of mind, or alternatively was capable of being understood as evidence as to a conversation in the presence of Ms Schoppe, we would not treat the evidence as struck out by implication arising from the exchange between counsel and the primary judge.

3. If the evidence had been struck out, given that the evidence was plainly admissible, it would prima facie be in the interests of justice in any event for the court, proceeding by way of rehearing, to receive the evidence on appeal.[37] It is, however, not necessary to consider finally that matter in light of the preceding two points.

35 As to ground 3, in our view there is no sufficient reason in the present case to depart from the ordinary approach of releasing the deceased's body to the person who most likely appears to be granted administration of the deceased's estate - Ms Schoppe. That is particularly so where Ms Schoppe's evidence was that the deceased wished to be cremated and released at the beach in Western Australia, that he had not, in effect, identified with respect to Aboriginal heritage, and that the deceased had left his family in South Australia at a relatively early age and moved to Queensland, before ultimately coming to Western Australia.

37 The appellant, Ms Britt, is the mother of Ricky Chapman, who died without a will on 20 April 2022. The second respondent,

Ms Schoppe, claims to have been in a de facto relationship with Mr Chapman at the time of his death.

38 Ms Britt and Ms Schoppe are in dispute about the deceased's funeral arrangements. Ms Britt wants the deceased's body to be buried on Kaurna land in South Australia. Ms Schoppe wants the deceased's body to be cremated and his ashes released at the beach in Western Australia.

39 On 7 June 2022, the primary judge heard and determined the dispute, finding in favour of Ms Schoppe. His Honour ordered that the deceased's body be released to Ms Schoppe and that she have carriage of his funeral. Ms Britt now appeals against the primary judge's orders.

40 In my view, in the circumstances of the present case, the deceased's body should be released to the person who appears, on the current state of the evidence, to be most likely to be granted administration of the deceased's estate for her to make the relevant funeral arrangements. In the circumstances of this case, that person will be Ms Schoppe if she and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death.

41 I have taken a different view to Murphy and Beech JJA in relation to the proper construction of the primary judge's reasons for decision. I am not satisfied that the judge made any finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020. I would uphold the ground of appeal which contends that the primary judge erred by failing to make that critical finding.

42 However, considering the evidence for myself, it does appear to me that the most probable inference, on the evidence before the primary judge, is that Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death. Ultimately, I would exercise the court's discretion in the same manner as the primary judge and release the deceased's body to Ms Schoppe. Consequently, in my view, the appeal should be dismissed.

43 The deceased was born in October 1989 in South Australia,[38] and so was 32 years old at the time of his death. The deceased's father predeceased him. The family of the deceased's father reside in New South Wales.[39] The deceased had one younger brother and three younger sisters. He maintained a close relationship with his brother (who is currently imprisoned in South Australia).[40]

44 The deceased had been in the care of a man named 'Bob' from the age of 12 years. He moved to Queensland with 'Bob' when he was around 13 or 14 years old.[41] He then moved from Queensland to Western Australia approximately seven years ago.[42] Shortly after moving to Western Australia, the deceased was imprisoned from October 2015 to April 2019.[43] The deceased suffered non-fatal injuries from a bullet wound in December 2020 on the occasion when Ms Schoppe's stepfather was shot and killed.[44] He was again incarcerated between December 2020 and April 2021.[45]

45 The deceased was working as a fly in/fly out worker at a mine site at the time of his death. He had experienced seizures which had prevented him from working for about six months prior to his death. He died after suffering a seizure at work on 20 April 2022, some eight days after his return to work on the mine site.[46]

46 On 12 May 2022, a coroner decided that a certificate should be issued under s 29 of the Coroners Act 1996 (WA), releasing the deceased's body to Ms Schoppe. The coroner proposed that he would, on 18 May 2022, issue the certificate to Ms Schoppe.

47 On 17 May 2022, Ms Britt commenced proceedings in the General Division of this court, seeking substantive orders that the deceased's body be released to her and that she have carriage of the deceased's funeral.

48 On 18 May 2022, the primary judge granted an interim injunction restraining the coroner from issuing a certificate pursuant to s 29 of the Coroners Act or releasing the deceased's body to Ms Schoppe until further order of the court. His Honour also made orders programming the matter for final hearing on 27 May 2022,[47] which included directions that:

1. Each of Ms Schoppe and Ms Britt file all affidavits on which they sought to rely by 4.00 pm on 25 May 2022; and

2. Each of Ms Schoppe and Ms Britt notify the other in writing of their intention to cross-examine on any affidavits by 12.00 pm on 26 May 2022.

49 For reasons which are not entirely clear from the primary court file, the hearing did not occur until 7 June 2022. It may be noted that the appellant produced two further affidavits (of Ms Sullivan and Ms Walsh referred to at [86] - [88] and [89] - [94] below) and written submissions only on 6 - 7 June 2022.

50 On 7 June 2022, the primary judge heard and determined Ms Britt's application for final relief. His Honour ordered that:

3. Ms Schoppe have carriage of the deceased's funeral arrangements.

51 The relevant legal framework may be summarised as follows.

52 Section 4 of the Administration Act 1903 (WA) preserves the jurisdiction of the Supreme Court to determine who should have carriage of a funeral and where and how the body of a deceased person should be dealt with.

53 The common law has long recognised the existence of rights and duties in connection with the burial of a corpse. An executor of the will of a deceased person has a duty to arrange for that person's funeral and a concomitant right to custody of the body for that purpose.[48] The position is more complex when a person dies without leaving a will or naming an executor.

54 Single judge decisions in Western Australia have held that the court will ordinarily order that the body be released to the executor of the deceased's will or, if there is no will, the person with the highest ranking entitlement to apply for letters of administration. The person to whom the body is released will then be left to determine funeral arrangements.[49] That proposition is derived from the decision of Young J in Smith v Tamworth City Council, in which his Honour described the rationale for the general approach in the following terms:[50]

It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, ... the person with the largest interest will normally be the person who is the one expected to bury the body. (citation omitted)

55 The passage just quoted was adopted by Perry J (Millhouse and Nyland JJ agreeing) in Jones v Dodd.[51] In doing so, Perry J observed:[52]

I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration.

56 Jones was a case in which an Aboriginal man died intestate without any significant assets and where there was unlikely ever to be an application for administration. The proper approach in such a case was described by Perry J in the following terms:[53]

Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality.

In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.

57 Practical considerations may also be significant in a case where persons with equally-ranking rights to apply for administration are in dispute about funeral arrangements.[54]

58 A number of single judge decisions in other States have recognised the relevance, in disputes about burial, of considerations other than who is likely to be entitled to obtain letters of administration. Relevant matters have been recognised to include, to the extent they are known to the court, cultural considerations, the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased.[55] Regard has also been given to the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties attendant upon competing proposals.[56] Various single judge decisions have recognised that, in some cases, it is not practicable to attempt to resolve disputes as to who has the better claim to be administrator where the proper resolution of the dispute would require substantial evidence and the testing of that evidence.[57] The weight to be attributed to each of the relevant factors mentioned above is to be determined in the particular factual context of the dispute in the case.[58]

59 It appears from the above discussion that the court will ordinarily order that the body be released to:

2. if there is no will, 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).

However, that is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied.[59] The approach to be taken, and the weight to be given to the various considerations, depends upon the particular circumstances of the case.

60 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.

61 Often, as in the present case, the court will not be in a position to fairly and properly make a final determination as to who has such an interest or entitlement. Disputes about the release of a deceased's body must necessarily be resolved as soon as possible after the death of the deceased. There will always be an imperative for expedition in disputes of this nature, and 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.[60] That need for an expedited determination of the question of the deceased's funeral arrangements arises at a time when the parties to the dispute are in the midst of their grieving over the loss of a loved one.

62 Particularly where the issue in dispute concerns the existence and duration of a de facto relationship, the fair final resolution of the dispute may require the parties to have the opportunity of presenting a large volume of evidence about the features of the relationship over a period of at least two years. The final determination of that dispute would require the court to give close attention to the detail of that evidence. It is well recognised that, outside the range of obvious cases, the evaluative judgment required in determining the existence and duration of a de facto relationship can be difficult and the characterisation of the relationship attended by a degree of uncertainty. In many such cases, it may be that different decision-makers could reasonably arrive at different conclusions on the same set of facts.[61] In many cases, the fair and proper resolution of disputes as to the characterisation of a relationship between a deceased and another person may take time that is not available to the court.

However, I should add that even if the 'common or usual approach' is not a principle of law, it would have to be an extremely rare case to depart from the usual approach. I say this because a person who is granted letters of administration is the person who has the control over the burial arrangements ... If the 'common or usual approach' is not applied on nearly every occasion, then we might soon have the spectacle of intending applicants for a grant of letters of administration seeking injunctions to restrain any dealing with the body until there had been such a grant. That would be a most unsatisfactory course in practical terms. It is much better that the decision be made expeditiously and finally, as has occurred in recent cases. (citation omitted)

64 I agree with Pullin J's observations as to the need for expedition, and that the resolution of the question of the release of a deceased's body cannot await the grant of letters of administration. The considerations to which Pullin J referred in Burrows support the approach of the court making a swift decision as to 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. It would seldom, if ever, be appropriate to await the outcome of a contested application for the grant of letters of administration. However, I would not say that the cases in which the court will depart from the usual approach would be 'extremely rare'. There may be a range of cases where the decision may be properly made by reference to, or having regard to, practical considerations. Examples include cases of a kind referred to at [56] and [57] above, or where those who appear most likely to receive a grant of administration are unwilling or unable to make proper funeral arrangements.

65 Therefore, in determining how the discretion should be exercised in the case of a deceased who dies without a valid will, the court need not, and generally does not, finally resolve disputes as to the existence of an interest in, or entitlement to a grant of administration of, an intestate estate. Rather, the court is concerned with the question of who (if anyone) appears, on the state of the evidence then before the court, to be most likely to receive a grant of administration of the intestate estate. The court will usually determine that question in an expedited summary way without needing to resolve every factual dispute that may be relevant to the grant of administration and without undertaking any extensive cross‑examination.[63]

66 It is then necessary to turn to the provisions of the Administration Act in relation to the grant of administration of an intestate estate.

Provisions of the Administration Act

67 Section 25(1)(a) of the Administration Act empowers the court to grant administration of the estate of a person dying intestate (separately or conjointly) 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.[64]

68 Section 14(1) of the Administration Act relevantly provides that, where a person dies intestate without issue (meaning without a lineal descendant), but leaving a wife, a parent and siblings, then:[65]

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

2. the wife is entitled to the first $705,000[66] of the net value of the other intestate property, together with interest on that sum and half of the net value of the other intestate property over $705,000; and

3. the parent and siblings are entitled to share in the other half of the net value of the other intestate property over $705,000.

69 Section 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.

70 Section 14(1) of the Administration Act also relevantly provides that, where a person dies intestate without a spouse or issue, but leaving a parent and siblings, then:[67]

1. the parent is entitled to the first $56,500[68] of the net value of the intestate property and one half of the net value of the intestate property over $56,500; and

2. the siblings are entitled to share in the other half of the net value of the intestate property over $56,500.

71 Therefore, if Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death, then she would have the greatest interest as a beneficiary in the deceased's estate and would normally be granted administration of the estate. If that were not the case, then Ms Schoppe would have no entitlement to the intestate property and Ms Britt, as the sole surviving parent of the deceased, would have the greatest interest in the deceased's estate and would normally be granted administration of the estate.

Determining the existence of a de facto relationship

72 The terms 'de facto relationship' and 'de facto partner' are defined in s 13A of the Interpretation Act 1984 (WA) in the following manner:

(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.

(4) A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.

(5) The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

73 This court has considered the operation of this definition, in the context of family law proceedings, in its two decisions in G v O.[69] 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.

74 In H v P,[70] 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.[71] 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.

Evidence relevant to the existence and duration of a de facto relationship

76 Ms Schoppe deposed as to the following in her affidavit sworn 24 May 2022. Ms Schoppe met the deceased through a mutual friend in late November 2019.[72] At that time, the deceased did not own a bike or car.[73] He told Ms Schoppe that he was on parole and was on 'non‑association from the Banditos Motorcycle Club'.[74] Ms Schoppe told the deceased that she was not interested in pursuing a relationship with a club member.[75] The deceased informed Ms Schoppe that, once his parole was over, he would be leaving the club for his own reasons.[76]

77 The deceased and Ms Schoppe entered into a relationship in December 2019.[77] The deceased moved into Ms Schoppe's Mirrabooka house in late January 2020.[78]

78 In June 2020, Ms Schoppe and the deceased 'found out we were pregnant'. The deceased was 'so excited' and contacted his sister 'to express how excited he was to be a dad'. When the pregnancy miscarried in July 2020, the deceased was 'devastated'.[79]

79 Ms Schoppe and the deceased trained together at the gym, and frequented gyms around Perth as they 'loved living a healthy active lifestyle'.[80] They travelled to Exmouth in late 2020 with Ms Schoppe's friends.[81]

80 Ms Schoppe's stepfather died on 12 December 2020. In order to help out Ms Schoppe's mother, Ms Schoppe and the deceased stayed 'between mine and my mother's house in Gnangara'.[82]

81 Between December 2020 and April 2021, the deceased was in prison for breach of parole. Ms Schoppe and the deceased maintained their relationship while he was in prison. She visited him in prison and provided financial support to him.[83]

82 Prior to his death, the deceased had been working as a fly in/fly out worker.[84] The deceased was worried that he would lose his job when he started suffering from seizures.[85] Due to his seizures, the deceased was unable to work consistently over the six months prior to his death. During this time, Ms Schoppe supported the deceased both emotionally and financially.[86] The deceased planned to sell 'our car to help with the financial burden'.[87] At the time of his death, the deceased had only just been cleared to go back to work, having been at work for eight days prior to his death.[88]

83 Ms Schoppe deposed that the deceased never moved out of her Mirrabooka house throughout their relationship.[89] Ms Schoppe further deposed that she and the deceased maintained their relationship, which she regarded as a de facto relationship, up until his death.[90]

84 Ms Schoppe and the deceased would have arguments that would last a day or so.[91] During an argument, the deceased would take 'in a relationship' out of 'his bio on Instagram' but would 'put it back in' once he had calmed down.[92]

1. The first page of a bank statement for the period 16 October 2020 to 26 March 2021 addressed to the deceased at the Mirrabooka house.

2. A screenshot of the deceased's Instagram account profile, which Ms Schoppe deposed was as at the time of his death,[93] with the denotation 'taken' next to a picture of a love heart and a padlock and key.

3. A letter from a medical practitioner addressed to the deceased at the Mirrabooka house dated 8 April 2022.

86 Antoinette Sullivan is a resident of Adelaide. Her affidavit does not expressly depose to her relationship with the deceased. In text messages between her and Ms Schoppe, Ms Sullivan refers to herself and is referred to by Ms Schoppe as 'nan'. It would appear that she is the maternal grandmother of the deceased.[94]

87 Shorn of inadmissible commentary, Ms Sullivan's affidavit materially deposed that:

1. Ms Sullivan started communicating with Ms Schoppe after the deceased was shot in December 2020, primarily by text message and telephone calls.[95]

2. On 5 November 2021, Ms Schoppe sent Ms Sullivan a text message which read:[96]

3. On 22 November 2021, Ms Schoppe sent Ms Sullivan a text message which began:[97]

He doesn't want to work on himself but yet he wants me to love him.

4. In a telephone conversation on or around 22 November 2021, Ms Schoppe told Ms Sullivan that she and the deceased were not getting back together because the deceased was immature and would not go to counselling.[98]

5. In late December 2021 or early January 2022, Ms Schoppe sent Ms Sullivan a text message which read:[99]

6. Ms Schoppe regularly communicated with Ms Sullivan between around 5 November 2021 and the death of the deceased. During that time, Ms Schoppe never told Ms Sullivan that she and the deceased had got back together.[100]

88 Ms Sullivan further deposed that, when she began communicating with Ms Schoppe, she did not have the deceased's telephone number, and all her communications with the deceased up until approximately 5 November 2021 were through Ms Schoppe. On about 5 November 2021, Ms Schoppe gave Ms Sullivan the deceased's telephone number, and Ms Sullivan communicated directly with the deceased after that time.[101]

89 Natasha Walsh was a friend of the deceased who communicated with him primarily through 'Snapchat' and 'Facebook Messenger'. Her affidavit, shorn of inadmissible commentary and hearsay, deposed as to the following facts.

90 In or around November 2021, the deceased told Ms Walsh he was no longer in a relationship with Ms Schoppe.[102] In around November and December 2021, Ms Walsh met with the deceased while he was living in the Rendezvous Hotel Perth in Scarborough.[103]

91 On 22 December 2021, Ms Walsh and the deceased exchanged the following messages on Facebook Messenger:[104]

Ms Walsh: Have you sorted your shit out with old mate

You've just bern (sic) really quiet so I thought you must have bern (sic) sorting things out

Deceased: Oh yeah trying to I'm quiet because I'm not on here much

92 Sometime between 22 December 2021 and in or around January 2022, the deceased removed Ms Walsh from his Facebook page and they stopped communicating. In or around February 2022, the deceased 're‑added' Ms Walsh on Facebook. At that time, the deceased's Facebook profile indicated that he was single. After the deceased 're‑added' Ms Walsh on Facebook, they began communicating again.[105]

93 In or around February 2022, the deceased told Ms Walsh that he was looking for somewhere to live. Ms Walsh said that the deceased could live with her. The deceased told her that she 'lived too far from all the good beaches', or words to that effect.[106] In messages exchanged between Ms Walsh and the deceased on 26 February 2022, the deceased said that he had been looking for a 'new place' but could not find anything.[107]

94 Between the end of February 2022 and the beginning of April 2022, the deceased told Ms Walsh that he was living with a couple who were friends of his at their house in Joondalup.[108]

Records relating to the deceased's stay at the Rendezvous Hotel

95 Exhibit H is a bank statement from Ms Schoppe's ANZ account, which showed transactions made between 30 November 2021 and 5 December 2021, including a withdrawal of $56 made at the Rendezvous Grand Hotel Scarborough on 5 December 2021.

96 Counsel for Ms Britt also tendered a bundle of documents subpoenaed from the Rendezvous Hotel, which showed that the deceased booked into the hotel from 29 November 2021 - 6 December 2021. He checked out early on the evening of 5 December 2021.[109]

97 Ms Britt also relied on two of her own affidavits (sworn 17 May 2022 and 24 May 2022) and an affidavit of Jeffrey Newchurch (affirmed 6 June 2022). None of those affidavits appear to me to contain any admissible evidence which goes to the existence or absence of a de facto relationship between Ms Schoppe and the deceased in the relevant period.

98 Ms Britt deposed that she is an Aboriginal woman of the Kaurna nation, and that the deceased was an Aboriginal man of the Kaurna nation. She deposed that it is important that the deceased be buried rather than cremated as that is the Kaurna cultural practice, which is important to the community and her family.[110] Mr Newchurch is an elder of the Kaurna people and deposed that it is important in Kaurna culture for burial rather than cremation to occur. He deposed that Kaurna funerals are important cultural events, at which large family gatherings are normal. He further deposed that the deceased's funeral on Kaurna land will be well-attended by Kaurna.[111]

99 Ms Britt also deposed that the deceased's younger brother, with whom he had a close relationship, is currently imprisoned in South Australia and so would not have the opportunity to attend a funeral in Western Australia. Ms Britt has given evidence of the brother's distress at the death of the deceased and her concern that if the brother cannot attend the deceased's funeral he will 'struggle significantly more than he is at the moment'.[112] Ms Britt also deposed that she has health conditions which would prevent her from flying to Western Australia.[113]

100 Ms Schoppe's affidavit deposed that the deceased refused to acknowledge his Aboriginal heritage, and denied being Aboriginal when asked by her family and friends. After he was shot, he told Ms Schoppe that, if he did not wake up from surgery, he would want to be cremated and have his ashes spread along the beach. He had also told Ms Schoppe that he would never want to live back in South Australia because of the bad memories from his childhood.[114]

101 Ms Schoppe also relied on an affidavit made by Kelly Marie Niclair, the principal registrar of the Coroners Court of Western Australia, on 18 May 2022. The affidavit sets out the history of the Coroner's Court's dealings with this matter. An attachment to that affidavit indicates that the deceased was incarcerated between 17 October 2015 and 15 April 2019, then again between 15 December 2020 and 16 April 2021.[115] The other attachments to that affidavit were struck out by the primary judge.[116]

102 The primary judge gave ex tempore reasons for making the orders releasing the deceased's body to Ms Schoppe. His Honour identified the critical issue as being whether the deceased and Ms Schoppe were in a de facto relationship.[117] After reviewing the evidence and having regard to the factors in s 13A(2) of the Interpretation Act, the primary judge concluded that they were in a de facto relationship.[118] In that regard, the primary judge found it 'particularly persuasive', as an indication that they intended to create a family, that the deceased was excited when he found out that they were pregnant and was devastated when they miscarried.[119]

103 His Honour found that there was a period from late November 2021 ‑ early December 2021 when the deceased and Ms Schoppe were not residing together.[120] His Honour characterised the period as a deterioration in the quality of the relationship, in which both parties were 'trying to work out the relationship', rather than an end to the relationship.[121]

104 The primary judge did not make any express finding as to when the de facto relationship between the deceased and Ms Schoppe began. The primary judge found that 'the longest period that the relationship might be said to exist was from sometime in late January 2020 to the date of Mr Chapman's death' on 20 April 2022.[122] His Honour observed:[123]

[W]hat has been submitted by the plaintiff is that you effectively cannot identify the start date of the relationship as being of the nature of a de facto relationship; however, in determining when the de facto relationship started, that will often be a process of looking back rather than requiring evidence of when they moved in.

105 The primary judge concluded his consideration of the nature of the relationship between Ms Schoppe and the deceased by stating:[124]

So that means that I've found that [Ms Schoppe] was in a de facto relationship, and, in those circumstances, that she is entitled to conduct the funeral of Mr Chapman.

106 The primary judge then held, in effect, that there was nothing disclosed in this case which would justify a departure from the common or usual approach that the person with the highest rank to take out administration of the estate will be given carriage of the funeral arrangements.[125]

107 On 8 June 2022, Ms Britt instituted this appeal against the primary judge's orders. On that day, an interim order was made staying the enforcement of orders 2 and 3 set out at [50] above and restraining the coroner from issuing a certificate under s 29 of the Coroners Act, until 4.00 pm on 15 June 2022 unless otherwise ordered. An urgent appeal order was also made, programming the appeal for final hearing on 15 June 2022.

108 Unfortunately, due to the late filing of the appellant's case and a proposed amendment to the grounds of appeal after the appellant's case was filed, it was necessary to defer the hearing of the appeal to 20 June 2022. The interim stay and injunction referred to above were extended to 4.00 pm on that date, and subsequently to the determination of the appeal.

109 Ms Britt appeals to this court on the following three grounds:

1. [The primary judge] erred in fact and law when finding that [Ms Schoppe] had been continuously in a de facto relationship with Ricky Chapman (deceased) from, at least, 20 April 2020 until Mr Chapman's death on 20 April 2022, within the meaning of 'de facto' provided in [s 13A of the Interpretation Act].

1.1. His Honour erred in law by failing to determine that a de facto relationship between Mr Chapman and [Ms Schoppe] existed from, at least, 20 April 2020 with the consequence that the 2 year requirement in section 14 [of the] Administration Act was not met by the de facto relationship erroneously identified by him.

1.2. His Honour erred in law by making findings regarding the 'indicators' set out in [s 13A(2) of the Interpretation Act] contrary to the evidence before the Court on which His Honour relied when erroneously concluding there to have been a de facto relationship between Mr Chapman and [Ms Schoppe].

2. [The primary judge] erred in fact when failing to find that any relationship between Mr Chapman and [Ms Schoppe] had broken down in or about late November 2021, prior to Mr Chapman's death on 20 April 2022.

3. The learned Judge erred in law when failing to exercise his discretion to:

3.1. order the release of Mr Chapman's body to [Ms Britt]; and

3.2. order that [Ms Britt] have carriage of the funeral arrangements for Mr Chapman according to the customs of the Kaurna Nation in South Australia.

Error in failing to make a finding as to when the relationship began

110 Ms Britt's written submissions in support of ground 1.1 contend that the primary judge erred by failing to make any finding as to when any de facto relationship between Ms Schoppe and the deceased began. In particular, Ms Britt contends that the primary judge failed to make any finding as to whether any de facto relationship had commenced prior to 20 April 2020.[126] Ms Britt submits that it is an error to conflate the start of any kind of relationship between the deceased and Ms Schoppe with the point at which the parties to the relationship began living together in a marriage-like relationship.[127]

111 In my view, ground 1.1 is established to the extent that it asserts the primary judge to have erred in failing to make a finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020.

112 The primary judge's reasons are not directed to that correct legal question in relation to the potential entitlement of Ms Schoppe to the intestate estate. The reasons were rather directed to whether a de facto relationship existed and whether that relationship had ended in November - December 2021. The primary judge did not make any express finding as to the critical issue of when the de facto relationship, which his Honour found to exist, began. That was a fundamental issue as, unless the de facto relationship began prior to 20 April 2020, Ms Schoppe would not have any entitlement to the deceased's estate under s 15 of the Administration Act, and therefore would generally not be granted carriage of the deceased's funeral.

113 The need for Ms Schoppe to establish that she and the deceased had lived as de facto partners for at least two years immediately before the deceased's death was highlighted in the appellant's submissions to the primary judge.[128] In those circumstances, particularly where the primary judge gave ex tempore reasons, the natural starting point might be to read the judge's finding as to the existence of a de facto relationship as an implicit finding that the relationship was of at least two years' duration.

114 However, having regard to the primary judge's identification of the critical issue and to the structure and logic of his Honour's reasoning, I am not satisfied that his Honour made such an implicit finding. At the outset of his reasons, the judge twice identified the essential or principal issue as being whether the deceased and Ms Schoppe were in a de facto relationship.[129] His Honour then directed attention to each of the matters in s 13A(2)(a) - s 13A(2)(i) of the Interpretation Act, so far as they were relevant.[130] Next, the judge considered evidence bearing on whether the relationship had come to an end,[131] before concluding that the relationship was a de facto relationship and that it had not come to an end.[132] That structure of the reasons reveals and reflects the judge's identification of two issues: whether the relationship was a de facto relationship and whether it had come to an end.

115 Moreover, in concluding that the relationship was a de facto relationship, the primary judge found it 'particularly persuasive', as an indication that they intended to create a family, that the deceased was excited when he found out that they were pregnant and was devastated when they miscarried.[133] Ms Schoppe discovered that she was pregnant in June 2020. The judge did not make any express finding that the deceased's response to the pregnancy and subsequent miscarriage shed light on the nature of the relationship as at April 2020. As discussed below, I would make such a finding. However, I do not regard such a finding to be so obvious as to go without saying, so as to be necessarily implicit in the judge's reasons.

116 Further, the importance of showing that a marriage-like relationship existed prior to 20 April 2020 was emphasised at the conclusion of oral submissions advanced by counsel for Ms Britt, just before his Honour began his ex tempore reasons.[134] I would expect the primary judge to have directly dealt with this submission if he had considered and rejected it.

117 It is also significant that the primary judge's reasons did not make any reference to s 15(1) of the Administration Act or to a necessity for any de facto relationship to have subsisted from a particular period prior to the deceased's death.

118 The only reference to s 15 in oral or written submissions was in a footnote to the second of the following quoted paragraphs:[135]

[Ms Schoppe] asserts that she was the de facto partner of the deceased for the purposes of the [Administration Act] at the time of his death.

[Ms Britt] accepts that, should this Honourable Court determine that [Ms Schoppe] was the de facto partner of the deceased at the time of his death, [Ms Schoppe] would rank above [Ms Britt] for the purposes of the [Administration Act].

119 Most of the oral and written submissions of counsel for Ms Britt were directed to whether the evidence established the existence of a de facto relationship at all, or whether any de facto relationship had ended by the time of the deceased's death. The passage quoted from the written submissions at [118] above suggests that these were the only critical issues. I am not convinced that the statutory requirement for any de facto relationship to subsist for at least two years prior to death was given such prominence in the written and oral submissions advanced on Ms Britt's behalf that it can be inferred that the primary judge could not possibly have overlooked the issue.

120 I make full allowance for the fact that the primary judge properly decided to deliver ex tempore reasons at the conclusion of argument in an urgent matter. However, even making that allowance I am unable to construe the judge's reasons as making any express or implicit finding in relation to the critical issue of whether any de facto relationship began prior to 20 April 2020. Given:

1. The absence of any reference in the judge's reasons to the statutory requirement for a de facto relationship to subsist for any period prior to death;

2. The judge's statement that the critical issue was whether or not the deceased and Ms Schoppe were in a de facto relationship;

3. The structure of the judge's reasons and the findings his Honour made as to whether a de facto relationship existed at all and as to whether it ended; and

4. The judge's failure to deal with Ms Britt's submissions as to whether the evidence established that any relationship had begun by 20 April 2020,

I cannot construe the reasons, having regard to the context of the preceding oral submissions and written submissions, as implicitly finding that the de facto relationship had subsisted for at least two years prior to the deceased's death.

121 This is sufficient to establish a material express error in the primary judge's reasons, so as to require this court to consider for itself the proper exercise of the discretion. It is unnecessary and (given the urgency of the matter) undesirable for the matter to be remitted, as this court is in as good a position as the primary judge to make findings of primary fact and draw inferences from primary facts established by the evidence. The evidence adduced before the primary court was entirely documentary. No oral evidence was adduced, and no party sought to cross-examine any other party on their affidavits. In light of the established error, I will make my own assessment of the affidavit and other documentary evidence.

122 It is, therefore, unnecessary for me to determine grounds 1.2, 2 and 3 of the appeal. It is also unnecessary to determine ground 1.1 so far as it contends that the evidence was not capable of satisfying the primary court that any de facto relationship commenced prior to 20 April 2020. Ms Britt's arguments as to the facts established directly or inferentially by the evidence will be addressed when I make my own factual findings and consider how the discretion ought to be exercised.

123 I therefore turn to make my own determination of whether, on the evidence adduced in the primary proceedings, Ms Schoppe or Ms Britt was the person who is most likely to receive a grant of administration of the deceased's intestate estate.

124 As the party asserting the existence of the relationship, in a contested application for letters of administration Ms Schoppe would bear the onus of adducing admissible evidence to establish, on the balance of probabilities, that she and the deceased were in a de facto relationship for a period of at least two years immediately before the deceased's death. That is, in the circumstances of this case, Ms Schoppe would bear the onus of establishing that she and the deceased were continuously in a de facto relationship from a period beginning no later than 20 April 2020 up until the deceased's death on 20 April 2022.

125 As noted above, the question at this stage is not whether Ms Schoppe has established an entitlement to administration of the intestate estate by establishing the continuation of a de facto relationship from 20 April 2020 to 20 April 2022. Rather, at this stage the question is whether, on the current state of the evidence, Ms Schoppe is the person who appears most likely to receive a grant of administration of the deceased's intestate estate.

1. the evidence adduced by Ms Schoppe was insufficiently detailed and specific to support a conclusion that she and the deceased were in a de facto relationship at all;

2. the evidence did not support a conclusion that any de facto relationship began prior to 20 April 2020 (ie at least two years prior to the death of the deceased); and

3. the evidence established that any de facto relationship had broken down in or about late November 2021.

127 Counsel for Ms Britt also contends that the cultural values and spiritual and religious beliefs of the deceased's maternal family (who are Aboriginal people of the Kaurna nation in South Australia) should be given weight. Counsel contends that the maternal family should be given the right to make the deceased's burial arrangements irrespective of the nature and duration of the relationship between Ms Schoppe and the deceased.[136]

128 Ms Schoppe submits that the primary judge made a fair and reasonable decision on the evidence before him. She accepts that '[i]n the innocence of inexperience, I could have worded things better'. However, Ms Schoppe in effect submits that the evidence supports the conclusion that she and the deceased were in a de facto relationship from January 2020 until his death in April 2022.

129 Ms Schoppe also submits that the cultural values and spiritual beliefs of the deceased's family should not be considered because they were not values and beliefs shared by the deceased.

Nature of Ms Schoppe's relationship with the deceased

130 Putting aside questions of when the relationship began and whether it ended before the deceased died, it appears to me on the current state of the evidence that Ms Schoppe was in a marriage‑like relationship with the deceased.

131 The evidence showed that their relationship existed from December 2019 until at least November 2021. During that time, they resided together in the same house, apart from the periods that the deceased was in prison or working away on his fly in/fly out shifts. It is significant that, when Ms Schoppe stayed with her mother to provide comfort and support after the death of her stepfather, Mr Nick Martin, the deceased went with her. Although not expressly stated, it is clearly implicit in Ms Schoppe's evidence that there was a sexual relationship between her and the deceased. The couple's reaction to Ms Schoppe's pregnancy and miscarriage demonstrated a commitment to living a shared life together. Irrespective of whether or not the pregnancy was planned, the reaction to it demonstrated a willingness to start a family together that was indicative of a deep commitment to an enduring relationship with each other. Ms Schoppe's commitment to a shared life with the deceased was also demonstrated by her emotional and (albeit unspecified) financial support for the deceased during his period of incarceration from December 2020 ‑ April 2021 and the period when he was unable to work in the approximately six months prior to his death. The only holiday which they are referred to taking was a holiday together with Ms Schoppe's friends.

132 Counsel for Ms Britt submits that the lack of detail, or any evidence at all, as to the financial relations and other arrangements between the deceased and Ms Schoppe precludes a finding of a de facto relationship. I do not accept that submission. Findings about the living arrangements of and financial contributions by the deceased are not essential to the proper characterisation of the relationship. I accept 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. However, the task of the court is to characterise the nature of the relationship by reference to the evidence that was adduced, rather than speculate about matters not in evidence. On the current state of the evidence, it appears to me that the relationship between Ms Schoppe and the deceased is properly characterised as a de facto relationship.

Did the de facto relationship end before the deceased's death?

133 Ms Schoppe's affidavit deposed to the fact that the deceased never moved out of her Mirrabooka house and the fact that they maintained their relationship up until his death.[137] She deposed only that they had arguments that would last for a day or so.[138] The evidence is expressed in very general and often conclusionary terms. However, if that evidence were to be accepted then it would indicate that the previously described relationship, which may be characterised as a de facto relationship, continued up until the time of the deceased's death.

134 Ms Britt adduced evidence of statements made by Ms Schoppe to Ms Sullivan, which may be regarded as inconsistent with Ms Schoppe's affidavit evidence. Those statements, contained within text messages, indicate that, on 5 November 2021, Ms Schoppe and the deceased were 'not together anymore' and that, on 22 November 2022, they were 'still not back together'. The text in late December 2021 or early January 2022, stating, 'We had Ricky come to Christmas', suggests that they were not residing together at that time. These statements could impugn the credibility of Ms Schoppe's evidence to the contrary. They would also constitute evidence of Ms Schoppe's state of mind at the time those statements were made.

135 The fact that the deceased stayed at the Rendezvous Hotel between 29 November 2021 and 5 December 2021 is consistent with him living away from Ms Schoppe's Mirrabooka house for that period. His statements to Ms Walsh in or around November 2021, that he was no longer in a relationship with Ms Schoppe, and, in February 2022, that he was looking for somewhere to live, are also evidence of his state of mind at the time those statements were made.

136 The matters referred to at [134] and [135] above appear to be inconsistent with Ms Schoppe's evidence referred to at [133] above. However, in assessing that evidence, it is relevant to note the limited opportunity that Ms Schoppe had to respond to the matters referred to at [134] and [135] above. The affidavits of Ms Sullivan and Ms Walsh were prepared after Ms Schoppe filed her affidavit in compliance with the court's directions. The affidavit of Ms Sullivan was filed only the day prior to the hearing on 7 June 2022, and the affidavit of Ms Walsh was only tendered at the hearing. At the hearing, Ms Schoppe sai[139]hat she did not have a copy of Ms Walsh's affidavit.139 Despite provision for cross-examination being made in the programming directions, counsel for Ms Britt never sought to cross‑examine Ms Schoppe and put these matters to her. The apparent inconsistency between Ms Schoppe's evidence and the evidence relied on by Ms Britt was also not dealt with in the plaintiff's written submissions. As an unrepresented litigant, Ms Schoppe may not have appreciated (and does not appear to have been advised by the court as to) the importance of responding to the evidence of Ms Sullivan and Ms Walsh or that she had any opportunity to do so by way of evidence adduced in rebuttal.

137 In the circumstances I have just described, I would give very little weight to the statements attributed to Ms Schoppe and the deceased in the affidavits of Ms Sullivan and Ms Walsh. I am prepared to infer from text messages sent by Ms Schoppe that there was some schism between her and the deceased in November 2021. However, I would conclude on the basis of Ms Schoppe's affidavit that the de facto relationship continued from December 2021 up until the deceased's death. To use the analogy suggested at [75] above, the events of late 2021 are properly characterised as a bump in the road rather than the end of one road and the beginning of another. I, like the primary judge, would conclude that the proper inference to be drawn from the evidence as a whole is that there was a single de facto relationship which subsisted until the deceased's death.

Did the de facto relationship begin before 20 April 2020?

138 I turn to consider whether the current evidence indicates that a de facto relationship between Ms Schoppe and the deceased began prior to 20 April 2020, so that the relationship could have continued for a period of at least two years prior to the deceased's death.

139 The evidence in relation to the period prior to 20 April 2020 is very limited. Ms Schoppe deposed that she met the deceased in November 2019, and they began an (implicitly sexual) relationship in December 2019. The deceased moved into Ms Schoppe's Mirrabooka house in late January 2020. That is the extent of the evidence of the nature of their relationship prior to 20 April 2020.

140 As counsel for Ms Britt correctly contends, the issue is not when any kind of relationship began but when a de facto relationship began. However, in deciding what inferences to draw, it is necessary to consider the evidence as a whole, and to not look at the evidence of events occurring prior to 20 April 2020 in a piecemeal fashion. I would also take account of the fact that the sparsity of the evidence appears to be a product of the limited time Ms Schoppe, who was not legally represented, had to produce the evidence.

141 I accept the submissions of counsel for Ms Britt that the mere fact that the deceased moved in with Ms Schoppe in late January 2020 does not necessarily mean that their relationship had the features of a marriage‑like relationship from that time. That is particularly so in a context where the couple had met only about two months prior and had begun a romantic relationship only one month prior. Further, while there is no direct evidence as to what work the deceased was doing in late January 2020, there is evidence that he was a fly in/fly out worker prior to his death. If the deceased was working as a fly in/fly out worker in late January 2020, this would have limited the amount of time that the deceased could have spent at Ms Schoppe's house. There is no evidence as to the periods that the deceased spent at home and away under his fly in/fly out roster. The current state of the evidence does not, in my view, support the conclusion that the relationship between Ms Schoppe and the deceased necessarily had the features of a marriage-like relationship in late January 2020.

142 I do draw the inference from the evidence of the couple's reaction to Ms Schoppe's pregnancy and miscarriage in June 2020 that the relationship had developed into a marriage-like relationship by that time. It is not so much the fact of the pregnancy as what the couple's reaction to it says about their state of mind at that time. Irrespective of whether or not the pregnancy was planned, it was desired when it eventuated. The fact that Ms Schoppe and the deceased wanted to start a family together indicates that, by that time, they were mutually committed to an enduring relationship. That attitude indicates a commitment to each other that, it may be inferred, did not arise abruptly on discovery of the pregnancy. The fact that a couple is prepared to start a family together ordinarily suggests a depth of commitment to an enduring relationship with each other that may not be expected at the very beginning of a de facto relationship. The strength of that commitment was subsequently tested by a miscarriage, the deceased's imprisonment and the deceased's illness and consequent inability to work.

143 As I have explained, it appears from the evidence considered as a whole that the relationship between Ms Schoppe and the deceased had developed into a marriage-like relationship at some time prior to June 2020 and subsisted until the deceased's death on 20 April 2022. The critical question then becomes whether, on the current state of the evidence, it appears more probable that this development occurred prior to 20 April 2020 rather than after that time.

144 In my view, the more probable inference is that the relationship between Ms Schoppe and the deceased had developed into a marriage‑like relationship prior to 20 April 2020. Depending on when in June 2020 the pregnancy was discovered, 20 April 2020 was only six to ten weeks before the discovery of the pregnancy. By 20 April 2020, the couple had been living in the same house (save for any periods that the deceased was working away) for some three months since late January 2020. They had been in a romantic relationship for four months. There is no evidence of any particular change in the couple's living arrangements or attitude to each other between 20 April 2020 and the end of June 2020. The evidence certainly does not exclude the inference that the development of the relationship occurred after 20 April 2020. However, in my view, it is more probable that the commitment of the nature and strength that the couple demonstrated in June 2020 was present in a relationship that had already developed a marriage‑like character by 20 April 2020.

Who appears more likely to be granted administration?

145 In my view, the most probable inference, on the evidence before the primary judge, is that Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death.

146 Therefore, it appears, on the current state of the evidence, that:

1. Ms Schoppe has an interest in the deceased's intestate estate under s 14 and s 15 of the Administration Act, so as to enable her to be granted administration under s 25(1)(a) of that Act;

2. Ms Schoppe has the greatest interest in the administration of the deceased's intestate estate under the Administration Act; and

3. Ms Schoppe is the most likely person to be granted administration of the deceased's estate.

Manner in which the discretion ought to be exercised

147 There is no sufficient reason in the present case to depart from the ordinary approach of releasing the deceased's body to the person who appears most likely to be granted administration of the deceased's estate (Ms Schoppe) for her to make the relevant funeral arrangements.

148 I accept that the evidence, referred to at [98] above, of the cultural importance of burial to members of the deceased's maternal family is a factor counting in favour of the deceased being released for burial in South Australia. The fact that members of the deceased's family in South Australia may be unable to attend a funeral in Western Australia, as noted at [99] above, is another practical consideration counting in favour of releasing the deceased's body to Ms Britt for burial in South Australia.

149 On the other hand, there is also evidence, referred to at [100] above, that the deceased did not acknowledge his Aboriginal heritage, has no continuing connection with South Australia and wished for his remains to be disposed of in the manner proposed by Ms Schoppe.

150 On balance, I do not consider the evidence of these competing practical matters to justify a departure from the usual approach to the exercise of the court's discretion. In all of the circumstances, I consider that the appropriate exercise of the court's discretion is to order that the deceased's body be released to Ms Schoppe, who should have carriage of the funeral arrangements.

151 For the above reasons, in my view the appeal should be dismissed.

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

CITATION : BRITT -v- OFFICE OF THE STATE CORONER [2022] WASCA 75 (S)

Practice and procedure - Appeals - Application for injunction pending application for special leave to appeal - Turns on own facts

CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [No 3] [2017] WASCA 132.

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

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513.

(These reasons were delivered extemporaneously and have been edited from the court's record of the decision.)

152 We are considering the appellant's application for a stay of orders 2 and 3 of the orders made by the primary judge on 7 June 2022 until 12.00 pm on Monday of next week. This application is made in the context of a foreshadowed potential application for special leave to appeal to the High Court of Australia against our decision dismissing the appeal against the primary orders.

153 The relevant principles governing the grant of a stay or interlocutory injunction pending determination of an application for special leave to appeal are set out in this court's decision in CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd.[140]

154 We first consider the issue of whether an application for special leave to appeal against our decision has substantial prospects of succeeding.

1. How the primary judge's reasons were to be understood, and in particular whether there was an implicit finding as to the duration of the de facto relationship between Ms Schoppe and the deceased which his Honour found to exist. (Ground 1.1)

2. Whether, in light of the evidence as a whole, it was open to the primary judge to find that Ms Schoppe had been in a de facto relationship with the deceased from at least 20 April 2020 until the death of the deceased on 20 April 2022. (Ground 1.2)

3. Whether the primary judge erred in fact in failing to find that any relationship between the deceased and Ms Schoppe had broken down in or about November 2021. (Ground 2)

4. If the judge did not err in those respects, whether the judge erred in law in failing to give sufficient weight to the cultural values and spiritual and religious beliefs of the deceased's family. (Ground 3)

5. If the judge did err in one or more of the respects just noted, how this court should re-exercise the discretion to make an order as to the release of the deceased's body on its own evaluation of the evidence before the primary court.

156 Murphy and Beech JJA found that the trial judge did not make any of the errors asserted by the appellant and dismissed the appeal on that basis. Mitchell JA found that the judge erred in failing to make any finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020. However, considering the evidence and the exercise of the discretion afresh, he concluded that the discretion should be re-exercised in the same manner as the primary judge and that the deceased's body should be released to Ms Schoppe.

157 It is difficult to see how any of the issues raised in the appeal to this court have any substantial prospect of attracting a grant of special leave to appeal to the High Court, even on the assumption that we were wrong in the conclusions we reached:

1. The first issue simply raises a question of the proper construction of the ex tempore reasons given by the primary judge. Even though members of this court took different views on that question, it is not a question which raises any issue of significance beyond this particular case.

2. & 3. There was no material difference between the general principles advanced by the appellant and those applied by the court. The resolution of the second and third issues turned on an evaluation of the sufficiency of the evidence before the primary court to support the judge's findings. Again, that is not an issue of any general importance which might justify the grant of special leave to appeal.

4. The appellant's submissions to this court in relation to the fourth issue were perfunctory and merely asserted a failure to give sufficient weight to the consideration. This court's reasons at [56] and [58] - [59] recognised that cultural values and spiritual and religious beliefs of the deceased's family were considerations relevant to the exercise of the court's discretion. In doing so, this court applied the decision in Jones v Dodd,[141] upon which counsel for the appellant relied. Each member of the court considered the evidence concerning the cultural values and spiritual and religious beliefs of the deceased's family, concluding that there was no sufficient reason in the present case to depart from the usual approach to the exercise of the court's discretion: [35], [147] ‑ [150]. The weight to be given to those considerations in the particular circumstances of this case does not raise a question of general importance. Further, it is well established that failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to an error in the exercise of a discretion unless the failure really amounts to a failure to exercise the discretion actually entrusted to the court.[142] The ground of appeal to this court suggested no more than a weighting error.

158 None of the potential grounds of appeal to this court point to any error from which it may be concluded that the appellant's prospects of success of a grant of special leave are substantial.

159 Indeed, the only potential ground of appeal involving a special leave point advanced by counsel for the appellant concerned whether the inference referred to at [23.6] and [142] of our reasons is not available on the facts of this case. That is not a question which raises any point of general importance, even if we might have been wrong in either drawing the inference or concluding that it was open.

160 Turning to the balance of convenience, it has now been over two months since the deceased died. Any further delay of the deceased's funeral arrangements will evidently cause distress to Ms Schoppe and may well do so to others close to the deceased who would be concerned by the significant delay which has already been produced by the proceedings to date. The affront to the dignity of the deceased and the emotional well-being of those close to the deceased involved in further delaying his funeral over two months after his death counts strongly against the grant of a stay in the present circumstances. The public interest in bringing finality to the resolution of this dispute over the body of the deceased also counts strongly against the extension of a stay for any further period.

161 We are also not satisfied that it is in the interests of justice to grant a stay to allow further time for the investigation of possible grounds which might be advanced in support of an application for special leave. Counsel attending judgment delivery is the same counsel who fully argued the appeal and the primary proceedings. The argument of the appeal took place only on Monday of this week. We gave counsel an opportunity to consider our reasons for decision before arguing the stay application. The judgment was also emailed to the appellant's solicitors in South Australia at the same time it was published in the court. In our view, counsel was in a position to identify any grounds on which he might seek to challenge our decision. It is not in the interests of justice to further delay the deceased's funeral for the purpose of permitting counsel more time to search for a possible ground of appeal that might attract special leave to appeal. Nor is it in the interests of justice to grant a stay for the purposes of allowing counsel to undertake further research in relation to the issue which he identified, namely the process of drawing inferences from primary facts. As we have said, the question of whether the inferences were open or were properly to be drawn in the present case was a central issue on the appeal and in the primary proceedings. It is not a new issue which arose from the judgment.

162 Having regard to the prospects of success of an application for special leave to appeal and the balance of convenience, we are not satisfied that it is in the interests of justice to grant any further stay of the primary court's orders. The application for a stay is therefore dismissed.

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

[1] Plaintiff's outline of submissions filed 6 June 2022, par 8.

[9] R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 [34] ‑ [35], [75], [86] ‑ [87]; Morris v Hanley [2001] NSWCA 374 [22].

[11] Appellant's written submissions, pars 53.1 - 53.6.5.

[12] Appellant's written submissions, pars 53.7 - 53.14.

[13] Appellant's written submissions, pars 53.15 - 53.21.

[14] Appellant's written submissions, pars 53.22 - 53.30.

[15] Appellant's written submissions, pars 53.31 - 53.37.

[16] Appellant's written submissions, pars 53.38 - 53.48.

[17] Appellant's written submissions, pars 53.49 - 53.53.

[18] H v P [2011] WASCA 78 [48]; G v O [2018] WASCA 211; (2018) 53 WAR 393 [50]; G v O [2022] WASCA 23 [104].

[19] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 223; (1992) 35 FCR 359, 369.

[20] See, for example, Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257 [127] and cases there cited.

[21] Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63, 65; [1774] EngR 2; (1774) 98 ER 969, 970; Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, [10].

[22] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [26].

[24] Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613 [39].

[26] King v Commissioner for Consumer Protection [2018] WASCA 194 [141] ‑ [142]; Heydon J D, Cross on Evidence (13th ed, 2021) [1170].

[27] See and compare FO v HAF [2006] QCA 555; [2007] 2 Qd R 138 [21].

[28] As to this evidence, see [34] below.

[29] Appeal ts 42. See also appeal ts 47.

[30] Ms Schoppe's affidavit, annexure SCS5.

[31] Ms Schoppe's affidavit, pars 8 - 11.

[35] See M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [55].

[37] Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182 [11]; Saunders v The Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226 [90].

[43] Exhibit A, par 26; exhibit E, attachment KMN7.

[48] Williams v Williams [1882] UKLawRpCh 60; (1882) 20 Ch D 659, 664 - 665; Burnes v Richard (1993) 7 BPR 15,104, 15,106.

[49] See, for example, Attwood v Office of the State Coroner [2020] WASC 198 [10]; Jackamarra v Office of the State Coroner [2021] WASC 301 [7] - [12]; Mourish v Wynne [2009] WASC 85 [22] - [24]; Burrows v Cramley [2002] WASC 47 [17].

[50] Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680, 691.

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

[54] See Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94 [21]; Frail v Shorey [2021] NSWSC 122 [22] - [24].

[55] The State of South Australia v Smith [2014] SASC 64; (2014) 119 SASR 247 [46] ‑ [72]; Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701 [21]; White v Williams [2019] NSWSC 437; (2019) 99 NSWLR 539 [19] ‑ [27]; Johnson v George [2018] QSC 140; [2019] 1 Qd R 333 [10] - [13].

[56] Johnson v George [13]; Calma v Sesar [1992] NTSC 17; (1992) 2 NTLR 37, 42.

[57] See, for example, The State of South Australia v Smith [49] ‑ [54]; Johnson v George [14] - [15].

[58] The State of South Australia v Smith [34]; White [20].

[60] The State of South Australia v Smith [21].

[61] G v O [2018] WASCA 211; (2018) 53 WAR 393 [50], citing Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546 [47] and H v P [2011] WASCA 78 [46].

[63] See The State of South Australia v Smith [40] and cases there cited.

[64] See Hart v Hart [2010] WASC 329 [17]; Fairburn v Healey [2009] WASC 114 [7]; LexisNexis, Wills Probate & Administration WA (at 21 June 2022) [1150.15].

[65] Items 1 and 3 of the table to s 14(1) of the Administration Act.

[66] This amount was increased from $75,000 to $705,000, with effect from 30 March 2022, by s 4 of the Administration Amendment Act 2022 (WA).

[67] Item 6 to the table to s 14(1) of the Administration Act.

[68] This amount was increased from $6,000 to $56,500, with effect from 30 March 2022, by s 4 of the Administration Amendment Act 2022 (WA).

[69] G v O 2018 [49] - [60]; G v O [2022] WASCA 23 [115] - [122].

[70] H v P [56] - [58]. H v P was applied by the Full Court of the Family Court of Australia in Clarence v Crisp [2016] FamCAFC 157; (2016) 311 FLR 433 [51] - [54]. See also the recent decision of the High Court in Fairbairn [30], [31], [33], [39] and [46], where a de facto relationship was held to have ended when one partner, by his conduct, acted contrary to the interests of the other.

[71] Compare the discussion in Davies v Richardson [2011] NSWSC 810 [28] - [30] and Bullivant v Holt [2012] FamCA 134 [125] - [130]; White [94] - [100].

[83] Exhibit F, par 36 - 38. Par 38 was read down by the primary judge, to exclude inadmissible components, as if it read 'I visited him in jail and provided financial support': see primary ts 16.

[96] Exhibit B, par 6 and attachment AS3.

[97] Exhibit B, par 7 and attachment AS4.

[99] Exhibit B, par 9 and attachment AS5.

[104] Exhibit D, par 9 and attachment NW1.

[107] Exhibit D, par 14 and attachment NW2.

[109] The documents, which were never given an exhibit number, are attached to the affidavit of Holly Tabitha McGillick, filed in the appeal on 13 June 2022.

[113] Exhibit A, par 29; exhibit G, par 4.11.

[114] Exhibit F, par 71 - 82. Although objection was taken to these paragraphs of Ms Schoppe's affidavit, the objection does not appear to have been ruled upon: see primary ts 21 - 22. In my view, the evidence, which was at least never unequivocally struck out, was admissible as going to the deceased's state of mind at the time the statements attributed to him were made.

[126] Appellant's submissions, par 30 - 31, par 38, par 42.

[127] Appellant's submissions, par 40.

[128] Plaintiff's submissions dated 4 June 2022, par 8.1, 14; primary ts 3, 50.

[135] Plaintiff's submissions dated 4 June 2022, par 12 and 13.

[140] CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [No 3] [2017] WASCA 132 [6] - [13].

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

[142] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519.