JACKAMARRA -v- OFFICE OF THE STATE CORONER [2021] WASC 301 (1 September 2021)

3 On 26 July 2021, Coroner Urquhart issued a decision stating that he intended to issue a certificate on 30 July 2021, pursuant to s 29(1) of the Coroners Act 1996 (WA), releasing the deceased's body to the second defendant for burial.

4 By her originating summons, the plaintiff applies for the following:

(b) an injunction restraining the release of the body to the second defendant;

(c) an order to release the body of the deceased to the plaintiff;

(d) an order that the plaintiff have carriage of the funeral of the deceased; and

(e) an order that the deceased be buried at Guildford Cemetery.

5 The originating summons was listed for directions on 30 July 2021. At this hearing, orders were made for the filing and service of additional affidavits on behalf of the plaintiff and the first defendant, for the second defendant to file and serve any affidavits in reply, and for the filing and service of submissions.

6 The matter was listed before me on an urgent basis on the afternoon of Thursday, 5 August 2021.

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

8 The legal principles that govern this matter were not in dispute between the parties. Pursuant to s 29(1) of the Coroners Act:

The coroner investigating a death must issue as soon as reasonably possible a certificate ... permitting burial, cremation or other disposal of the body.

9 This section has been interpreted in other states as carrying with it by necessary implication the power to decide questions as to where and by whom these matters will be carried out, which is essential to the effective discharge of the Coroner's function.[2]

10 It is an established principle at common law that there is no property in a deceased person's body. Executors are entitled to custody and possession of the body for the purpose of determining funeral arrangements.[3]

11 The legal principles as to how this court is to determine who should have possession and control of the deceased's body were also not in dispute. They were summarised by Archer J in Atwood v Office of State Coroner in the following terms: [4]

(a) If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased's body, the person named as executor has the right to do so.

(b) A person with the privilege of choosing how to bury the body is expected to consult with other stakeholders but is not legally bound to do so.

(c) When no executor is named, the person with the highest rank to take out administration will have the same position as the executor in proposition (a).

(d) The right of the surviving spouse or de facto will be preferred to the right of children.

(e) Where two or more persons have equal ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

The propositions in (a) and (c) are to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. It would have to be a rare case to depart from this common or usual approach.

12 Throughout the Coroners Act, references are to made to the phrase 'senior next of kin'. This phrase is defined in s 37(5) in the following terms:

... senior next of kin in relation to the deceased person means the first person who is available from the following persons in the order of priority listed -

(a) a person who, immediately before death, was living with the person and was either -

(i) legally married to the person; or

(ii) of or over the age of 18 years and in a marriage-like relationship (whether the persons are different sexes or the same sex) with the person;

or

(b) a person who, immediately before death, was legally married to the person; or

(c) a son or daughter, who is of or over the age of 18 years, of the person; or

(d) a parent of the person.

13 Whilst this definition is of assistance, this application falls to be determined under the Administration Act. Under s 25(1) of the Act, the court can grant administration of the estate to any adult who is entitled to distribution.

14 The table in s 14 of the Act sets out who is entitled to distribution from the deceased's estate. Under this table, the wife of the deceased would have the highest rank. Section 15(1) of the Act extends this to a de facto partner where the de facto partner and the deceased lived as de facto partners for a period of at least two years immediately before the death of the deceased.

15 The Act does not define de facto partner. Its definition is contained in s 13A of the Interpretation Act 1984, which provides that:

(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.

16 There are two important points to note about this definition. The first is that the section places great emphasis on the parties residing together (ss (1), (2)(b) and (2)(c)). This suggests that careful attention needs to be paid to the living arrangements of the parties. The second aspect is that there is no reference to anything like natural love or affection. The closest that the section comes to this is in sub-s (2)(i).[5]

17 The decision as to whether a de facto relationship existed at the relevant time is a judicial one, having regard to the factors in s 13A(2) of the Interpretation Act.[6] Ultimately, it is necessary for the court to undertake an overall assessment of the facts and of all the relevant elements of the relationship.[7]

18 There is no formality as to when a marriage-like relationship starts or finishes. For that reason, it can be difficult to determine whether the de facto relationship is continuing or has come to an end. In determining whether a de facto relationship has come to an end, the court will consider whether a party to a de facto relationship has determined that they no longer wish to live in a marriage-like relationship and conducts their life on that basis. Unlike a legal marriage, which is presumed to continue until a party can prove 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 negative.[8]

19 However, it is also important to note the deterioration in the quality of a de facto relationship does not mean that it has come to an end. A de facto relationship ends when one party decides they no longer wish to live in the required degree of mutuality with the other, but to live apart. It is not necessary that this be communicated to the other party provided that the party acts on their decision. It is not necessary for the other party to agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship will be considered to have ceased.[9]

20 The plaintiff filed five affidavits in support of her application, being:

(a) an affidavit of the plaintiff, filed 29 July 2021;

(b) an affidavit of Noeline Joyce Jackamarra (the plaintiff's sister), filed 29 July 2021;

(c) an affidavit of Mervyn James Eades (an Aboriginal activist who gives evidence of traditional Noongar law and custom in respect of the burial of deceased persons), filed 30 July 2021;

(d) an affidavit of Bruce William Dodd (the father of the deceased), filed 30 July 2021; and

(e) an affidavit of Clorrisa Grace Comeagain (the mother of the deceased's eldest child), filed 30 July 2021.

21 The first defendant filed an affidavit of Kelly Marie Niclair on 30 July 2021, the Principal Registrar of the Coroner's Court, who gives evidence of the process that was followed by the Coroner and annexes various documents from the Coroner's file.

22 The second defendant filed an affidavit opposing the plaintiff's claim and giving evidence of her relationship with the deceased.

23 I have also had the benefit of written submissions that have been filed on behalf of the plaintiff and the second defendant.

24 As I am required to make a decision quickly, it is not possible for me to refer in detail to all of the evidence that has been filed in the court. However, I have carefully read all of the material. I accept that both the plaintiff, the second defendant and the remainder of the deceased's family have suffered a significant loss. I am conscious that each of the parties is concerned to ensure the proper burial of their loved one, and that it is important that the deceased be buried without unreasonable delay and with the respect and decency that he deserves.

25 I accept that my decision will inevitably cause distress to one of the parties and likely others. Regrettably, this court must decide who should have the right to arrange the deceased's funeral, and in doing so I must apply the established principles of law which I have summarised above.

26 The primary issue of contention between the parties is whether the second defendant continued to be the de facto wife of the deceased at the time of his death. The second defendant maintains that she was; the plaintiff denies this. Therefore, the first question I must determine is whether, on the balance of probabilities, the second defendant and the deceased lived as de facto partners for a period of at least two years immediately prior to his death. If so, the second defendant is the person best qualified to obtain a grant of administration. It would then be necessary to consider whether there are other factors which justify a departure from that conclusion.

27 On the other hand, if the second defendant and the deceased were not de facto partners at the date of his death, the plaintiff will be best qualified for a grant of administration. Again, in this case, it would be necessary to see whether there are any factors which justify a departure from that conclusion.

28 The parties also do not agree where the deceased should be buried. The plaintiff wants him to be buried at Guildford Cemetery on Noongar country. The second defendant wants the deceased to be buried in Carnarvon where she says she and the deceased lived and where she continues to reside.

29 The deceased was born on Noongar country, specifically, the Whadjuk region, and is the son of the plaintiff and Bruce William Dodd. He was born in September 1990 and was only 30 years old at the time of his death. He had six siblings, one of whom had a different biological mother.

30 The deceased is survived by four children aged 14, 10, seven and five. The second defendant is the mother of the deceased's three younger children. These children are the subject of care and protection orders from the Department of Communities.

31 The plaintiff's evidence is that the deceased's siblings support her application. Mr Dodd, the deceased's father, filed an affidavit also in support of the application. The mother of the deceased's eldest child, Clorissa Grace Comeagain, supports the plaintiff's application. In her affidavit, Ms Comeagain deposes to the wishes of the deceased's eldest child. Her preference is that the deceased is buried in Perth, where she will be able to visit from her home in Geraldton.[10]

32 The plaintiff denies that the second defendant was the de facto wife of the deceased. Her evidence is that the deceased and the second defendant met in about 2010 and had a turbulent, on-and-off relationship.[11]

33 The deceased was imprisoned on a number of occasions, including for convictions of the assault of the second defendant. Following an incident on 24 February 2021, the deceased was charged with common assault in circumstances of aggravation.

34 The plaintiff's evidence is that during 2021, the deceased lived between her home and her sister Noeline's home in South Hedland. She says that the deceased did this because the second defendant followed him to Noelene's home and would not leave.[12]

35 The plaintiff tendered the bank statements of the deceased, which showed that he regularly made withdrawals and purchases in South Hedland and Karratha between January and March 2021. Between 31 March 2021 and 7 May 2021, he made various withdrawals and purchases in Carnarvon, and from 19 May until the time of his death, he made withdrawals and purchases in South Hedland and Karratha.[13]

36 When the deceased went to Carnarvon, the plaintiff says that she spoke to him regularly and that he told her everything was all right, that he was coming back to Hedland soon, and that the second defendant would be staying in Carnarvon with her daughter. When the deceased returned to South Hedland in mid-May 2021, the plaintiff says that he camped in her driveway. The plaintiff's evidence is that the second defendant followed the deceased to the plaintiff's house and that the deceased repeatedly told the second defendant to go back to Carnarvon and would often leave her house to sleep elsewhere, leaving the second defendant behind.[14]

37 On 25 June 2021, the deceased arrived at the plaintiff's home in South Hedland. When he arrived, he had scratches over his back, but did not want to discuss how he got them. Shortly after his arrival, the second defendant came to the plaintiff's house. The plaintiff's evidence is that she heard the deceased say to the second defendant words to the effect of, 'You should have stayed in Carnarvon. You shouldn't have followed me back here', and, 'I want to be on my own'.[15]

38 On the night of 26 June 2021, the plaintiff woke to the sounds of yelling. She went into her front yard and saw the deceased hanging with a belt around his neck. Her evidence is that she pulled him down, cut the rope and tried to put the deceased into a comfortable position. She says that the second defendant pushed her out of the way, dragged the deceased along the ground towards the car, put him in her car and drove off.[16]

39 The evidence of the plaintiff's sister Noeline confirms that the deceased came to South Hedland well prior to his death, although her evidence is that this occurred in about mid-2020 and that the second defendant came with the deceased. She deposes that the second defendant and the plaintiff regularly fought while they were living with her and that the deceased would frequently leave her home and sleep elsewhere.[17] In late March 2021, Noelene evicted the second defendant from her home. Her evidence is that the deceased 'continued to visit me after that, but without Roslyne'.[18]

40 If the plaintiff's application is granted, the plaintiff proposes that the deceased be buried at Guildford Cemetery on Noongar land. The deceased was born on Noongar land and lived in Perth until he was 10 when the family moved to Port Hedland. The plaintiff's evidence is that it is culturally important for the deceased to be brought home to be buried on Noongar land with his family members. If this does not occur, she believes that the deceased's spirit will not be able to rest and that he will be tormented forever.[19]

41 The plaintiff is aware that the second defendant wants the deceased to be buried in Carnarvon. The plaintiff's evidence is that the deceased never lived in Carnarvon and has no connection there. The evidence of Mr Eades is that traditional Noongar lore and custom is that a Noongar person comes home to be buried and that it would be contrary to this for him to be buried in Carnarvon which is not on Noongar country.[20]

42 The second defendant filed a short affidavit in opposition to the plaintiff's application. Her evidence is that prior to his death, she and the deceased had been in a domestic relationship since late 2008 or early 2009. Her evidence is that at the time the deceased passed away 'we had been living together at 3b Tonkin Crescent in Carnarvon'. Her evidence is that they lived with the second defendant's daughter Billie.[21]

43 She also gives evidence that the deceased had almost no contact with his mother and father in the time she knew him and had almost nothing to do with them for more than a decade. She also deposed the deceased was not close to Noeline. She says that the deceased was her partner, best friend and soulmate and that she wants to bury him in Carnarvon so that she and the children can visit his grave regularly.[22]

44 Neither party adduced any direct evidence as to whether the defendant had expressed any wishes as to where he wanted to be buried.

45 I also have before me an affidavit from Ms Kellie Niclair which annexes a number of documents. Relevantly, these include the mortuary admission form. This gives the address of the deceased as the plaintiff's address. The form also records a conversation with the plaintiff where she is reported to have said that the deceased and his partner were always splitting up and getting back together. It also records that the deceased was taken to hospital by the second defendant on the night of his death.[23]

46 It also annexes a case note of a conversation with the plaintiff. This note records that the plaintiff was asked whether the deceased and the second defendant were living together and that the plaintiff said that they were, but were not supposed to be as there was a restraining order protecting the second defendant from the deceased.[24]

47 The affidavit also annexes a letter from the senior social work supervisor of the Department of Health which stated that the second defendant had been listed by the deceased as his next of kin in their records and that her mother was listed as an alternate emergency contact.[25]

48 The affidavit annexes a letter from the Department of Communities which confirmed that during their involvement with the deceased and the second defendant, there had been times when they both indicated they had separated, but that the relationship always resumed.[26] Ms Niclair's affidavit also annexes a Facebook post by the second defendant where she refers to the deceased as her husband.[27]

49 There are also various incident reports obtained from the West Australian Police.[28] These incident reports record that on 24 February 2021, the deceased was charged with the common assault of the second defendant in South Hedland. The second defendant gave her address as Noeline's address. The deceased admitted punching the second defendant. The police records state that the deceased and the second defendant were not separated and that no attempts had been made by the second defendant to leave the relationship in the past 12 months. The records show that the deceased was released on bail and that a protective bail condition was imposed which required the deceased not to approach within 50 metres of the second defendant or where she lived including at Noeline's address. The police records attached to the affidavit also record that 72-hour restraining orders were issued by the police against the deceased where the protected person was the second defendant on 17 May 2021, 30 January 2020 and 23 May 2019.

50 The affidavit also annexes a statement from Ms Jessie Isaacs, a friend of the Jackamarra family, who was at the plaintiff's house on the night of 26 June 2021; an email from Lerrissa Miller, a cousin of the deceased; as well as a statement of the plaintiff.[29] In the statement of the plaintiff, the plaintiff stated that the deceased had returned to live with her about five weeks before he died and that the second defendant arrived in South Hedland about two weeks before the deceased's death.

Disposition Who is the party with the highest-ranking privilege to take out administration of the deceased's estate?

51 It is not in dispute that the deceased died without a valid will and there is no executor of his estate. If the second defendant was the de facto wife of the deceased at the time of his death, she will have the highest-ranking privilege to take out administration of the deceased's estate. If she was not, as none of the deceased's children are over the age of 18, the plaintiff will have the highest-ranking privilege.

52 On the evidence before me, I accept that the deceased and the second defendant had commenced a relationship by no later than 2010 and that they resided together for a period of time, having three biological children together aged from 10 to five years of age. On this basis, I find that from 2010, the deceased and the second defendant were in a de facto relationship. The primary issue for the court is whether this relationship had ceased prior to the deceased's death.

53 As noted in my exchanges with counsel, none of the parties were cross-examined at the hearing before me.[30] For that reason, it is not possible for me to make findings on the parties' evidence based on credibility. Their evidence is contradictory. The plaintiff and some of the parties who filed affidavits on her behalf say that the deceased and the second defendant were no longer in a relationship at the time of the deceased's death, if they even accept that they had been in a relationship. In contrast, the second defendant maintains that they were.

54 In these circumstances, where allegations are made that are credibly denied in the opposing affidavits, I am required, as a matter of law, to ignore the disputed allegations.[31] The application is required to be determined by consideration of the facts that are not in dispute.

55 In reaching my conclusion, I have placed the greatest weight on the objective evidence that has been filed by the parties, particularly the evidence filed by Ms Niclair, the Principal Registrar of the Coroner's Court. I make these findings on the evidence which is not in dispute or which has not been credibly denied and from the documents which are annexed to the affidavits. From this evidence, I make the following findings of fact on the balance of probabilities.

56 First, the deceased was not living in Carnarvon at the time of his death but had spent most of 2021 in South Hedland.

57 Second, while he was in South Hedland, he primarily lived at the houses of either his mother or his aunt. Until March 2021, the second defendant lived with the deceased at his aunt's house.

58 Third, in February 2021 the deceased was charged with the common assault in circumstances of aggravation of the second defendant. A protective bail condition was imposed which required the deceased not to approach within 50 metres of the second defendant. Both the deceased and the second defendant ignored and did not comply with this protective bail condition.

59 Fourth, in late March 2021 the deceased went to Carnarvon from South Hedland.

60 Fifth, in mid May 2021 the deceased returned to South Hedland. Approximately two weeks prior to his death, the second defendant followed him back to South Hedland.

61 Sixth, the second defendant and the deceased argued on 26 June 2021. The evidence of the plaintiff at [9] of her affidavit has not been credibly denied and I accept that those words were said by the deceased to the second defendant. However, in my view, these words of themselves do not indicate that the deceased had decided to terminate his relationship with the second defendant. In my view, these words are consistent with the deceased and the second defendant having had an argument.

62 Seventh, the second defendant was with the deceased on the night of 26 June 2021 and took him to hospital that night.

63 Eighth, the second defendant and the deceased had a tumultuous relationship that was marred by domestic violence. While they split up on a number of occasions, the relationship generally resumed.

64 Given these findings, I accept and find that as at the date of the deceased's death, the de facto relationship between the deceased and the second defendant had not ceased. On this basis, I find that the second defendant was the deceased's de facto partner immediately prior to his death. Although I have not specifically relied on this, I note that this finding is consistent with the statement by the plaintiff to the representative of the Coroner's Office that the deceased and the second defendant were living together prior to his death, although they were not supposed to be.

65 In this case, as is in many of the cases that come before this court that involve families, and in particular, families of Aboriginal persons, to choose who should have the right within a family to have the carriage of the funeral of a much loved deceased person causes significant distress to the losing party. It is most unfortunate that the parties to these proceedings have not been able to reach agreement. This is particularly the case given the evidence that has been filed on behalf of the plaintiff which stresses the importance of the deceased, as a Noongar man, being buried on Noongar land. However, having considered all of the evidence filed on behalf of the parties and the submissions that have been made by counsel, this case is not such a rare case that would warrant the court departing from the common or usual approach.

66 When regard is had to all of the factors and considerations, including the views of the deceased's eldest child, who is not yet an adult, I am of the opinion that the second defendant, as the person with the highest ranking privilege under the Administration Act, should have the carriage of the deceased's funeral. This is because when all relevant matters are considered on balance, these other factors are not such as to depart from the common or usual approach that the person who has the highest right to take out administration will have the right to arrange for the burial of the deceased's body.

67 For these reasons, the plaintiff's application should be dismissed.

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

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

[2] Gilliott v Woodlands [2006] VSCA 46 [20].

[3] Williams v Williams [1882] UKLawRpCh 60; (1882) 20 Ch D 659; Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406; Burrows v Cramley [15] - [16] (Pullin J).

[4] Attwood v Office of The State Coroner [2020] WASC 198 [10]. See also Burrows v Cramley [15] ‑ [18] (Pullin J); Mourish v Wynne [22] ‑ [24] (Le Miere J); Spratt v Hayden [2010] WASC 340 [5] (Le Miere J); Bertani v Bertani [2017] WASC 78 [14] ‑ [18] (Banks-Smith J).

[5] Scherini v Conwell [2018] WASC 172 [4].

[6] H v P [2011] WASCA 78 [53] (Murphy JA).

[9] S v B [2004] QCA 449; [2005] 1 Qd R 537 [48].

[10] Affidavit of Clorrisa Grace Comeagain filed 30 July 2021 [11].

[11] Affidavit of Theonie May Jackamarra filed 29 July 2021 [19].

[12] Affidavit of Theonie May Jackamarra filed 29 July 2021 [24] - [25].

[13] Affidavit of Theonie May Jackamarra filed 29 July 2021, TMJ-3.

[14] Affidavit of Theonie May Jackamarra filed 29 July 2021 [27] - [28].

[15] Affidavit of Theonie May Jackamarra filed 29 July 2021 [7] - [9].

[16] Affidavit of Theonie May Jackamarra filed 29 July 2021 [10].

[17] Affidavit of Noeline Joyce Jackamarra filed 29 July 2021 [5] - [6].

[18] Affidavit of Noeline Joyce Jackamarra filed 29 July 2021 [10].

[19] Affidavit of Theonie May Jackamarra filed 29 July 2021 [31] - [32].

[20] Affidavit of Mervyn James Eades filed 30 July 2021 [13] - [14].

[21] Affidavit of Roslyne Anne Ranger filed 3 August 2021 [3] - [4].

[22] Affidavit of Roslyne Anne Ranger filed 3 August 2021 [6], [8], [10], [13].

[23] Affidavit of Kellie Marie Niclair filed 30 July 2021, KMN1.

[24] Affidavit of Kellie Marie Niclair filed 30 July 2021, KMN2.

[25] Affidavit of Kellie Marie Niclair filed 30 July 2021, KMN4.

[26] Affidavit of Kellie Marie Niclair filed 30 July 2021, KMN5.

[27] Affidavit of Kellie Marie Niclair filed 30 July 2021, KMN8.

[28] Affidavit of Kellie Marie Niclair filed 30 July 2021, KMN10.

[29] Affidavit of Kellie Marie Niclair filed 30 July 2021, KMN16, KMN17, KMN18.

[31] Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 [7].