27 May 2014


In State of South Australia v Smith [2014] SASC 64 the Supreme Court of South Australia has ruled in favour of a deceased's minor child as against the deceased's putative domestic partner in a case of burial dispute.

The SASC considered several factors in determining the issues, concluded that it would be in the bests interests of the deceased's living children that the deceased be buried near them in Port Augusta.

The Court states that
The deceased was born, in Port Augusta on 4 October 1975, of Aboriginal descent. He was brought up in Coober Pedy and the surrounding lands. It is common ground that, as an adult, he pursued an itinerant lifestyle. He regularly travelled between Coober Pedy, Port Augusta, and Ceduna. He remained in each location for up to two or three months at a time staying with and visiting family. The deceased died on 3 December 2013 in Ceduna. He was with the first defendant at the time.
The first defendant, Melissa Smith, is the putative domestic partner of the deceased. They first met in Coober Pedy in 1999 shortly after which they commenced a relationship. They have one child together, Norman Boland, who is seven years old. The first defendant and Norman have lived in Ceduna for all of Norman’s life. The first defendant maintains that her relationship with the deceased as domestic partners endured until his death. However, members of the second defendant’s Port Augusta family do not accept this.
The second defendant, Peter Wilton, at 17, is the oldest of three children of the deceased and another former partner, Katrina Wilton. One of those siblings, Alvin Wilton, is deceased and is buried in Port Augusta. The second defendant lives and has been brought up in Port Augusta. As already mentioned, two separate applications for funeral assistance have been made. The Department has agreed to arrange and pay for the costs of a funeral subject to the dispute over the place of burial being resolved. Whilst the applications for funeral assistance were made by or on behalf of the first and second defendants respectively there is a sense in which each represents the interest of a wider group of family members of the deceased, one in Coober Pedy and one in Port Augusta.
It also seems to have been the case that each defendant has been under significant pressure from members of their respective communities to ensure that the deceased is buried appropriately, particularly given the importance placed on the final resting place of the deceased in Aboriginal culture. This much has been made clear by what transpired in the weeks following the making of the two applications.
The Department, having received two conflicting applications, contacted both sides of the family to advise of the conflict and explain that a funeral could not take place until they had reached agreement as to a burial location. Attempts, over an extended period of time, were made to reach an agreement but without success.
On 17 January 2014, the Department received a letter purportedly signed by a large number of (at least 21) members of the deceased’s extended family in Coober Pedy. The letter expressed a desire for the burial to take place in Coober Pedy. However, the first defendant sent a signed letter to the Department on 6 February 2014 advising that she then consented to the burial of the deceased in Port Augusta. As a result, the second defendant’s application for funeral assistance was approved and authority was given for a funeral to take place in Port Augusta. In order to facilitate this, on 10 February 2014, the deceased’s body was released by the Coroner to Fulham Funerals SA Pty Ltd, the undertaker contractually engaged by the Minister to perform funerals under the funeral assistance program. However, later that same day, the first defendant orally withdrew her permission to have the burial in Port Augusta and reiterated her desire to have the burial in Coober Pedy. The Department arranged for the undertaker to postpone the funeral arrangements.
Further attempts to mediate a resolution between the family members followed. These were unsuccessful and the Department filed a summons in this Court on 21 March 2014. However, attempts at resolution continued and another possible resolution of the dispute (in favour of Coober Pedy) was almost reached during late March, early April but this also, ultimately, failed to come to fruition.[8] As a consequence, the plaintiff filed an interlocutory application, on 16 April 2014, seeking a direction that the matter be called on as a matter of urgency. A directions hearing took place on Wednesday 23 April 2014, with the first defendant appearing unrepresented and by telephone from the office of the Aboriginal Legal Rights Movement in Ceduna. The second defendant was represented. Notwithstanding the need for an early resolution of the matter, it was clear that the first defendant, who has difficulty with reading and writing, required an opportunity to obtain legal representation. The matter was adjourned for this to occur. Once representational issues were sorted out directions were made for the filing of affidavits.
Both defendants have now had the benefit of legal assistance in the preparation and presentation of their respective cases. It is my understanding that the assistance has been on a pro bono basis for which the Court is grateful.
The position of the plaintiff at all times has been to provide assistance with the factual background and the relevant legal principles without advocating either cause. The plaintiff will abide the orders of the Court.
It is regrettable, but has been unavoidable due to the prolonged disagreement between family members, that the deceased’s remains have been with the Coroner and with the designated funeral home for some months now. It is in the interests of all parties and necessary, in order to maintain the dignity of the deceased, that a swift resolution be reached by this Court.