Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 8 June 2019.
Melanie, a young mother of one, dies unexpectedly. She did not have a will.
Melanie’s mother, Susan, makes arrangements regarding the funeral and burial.
Michael, claims that he was in a de facto relationship with Melanie at the time of her death and that he should have the right to make the arrangements, stating that he wishes for Melanie’s remains to be cremated.
Michael makes an urgent application to the Supreme Court, seeking a declaration that he is Melanie’s next of kin and that he has the right to control the “form of disposal of her body”.
The Court notes that the decision of a parent of a deceased child would only take precedence if there was no spouse or de facto partner and no child that had attained the age of 18 years.
Given the urgency of the application, there was only time for the parties to provide limited evidence in support of their respective positions.
Numerous statutory declarations were provided to the Court but there was no opportunity for the evidence of any witnesses to be tested by way of cross examination.
The Court notes that Michael and Melanie had a child together and that although they were in a de facto relationship at some stage, there were periods of separation followed by periods where their relationship had resumed.
The Court found that evidence of a sexual relationship was not by itself determinative.
The Court examined Centrelink records and considered numerous Facebook posts.
In what was a difficult case for all concerned, the Court found that on the balance of probabilities, there was no de facto relationship in existence at the date of death and accordingly, Michael’s application was dismissed.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
