19 April 2019


In Carly White v Candice Williams [2019] NSWSC 437 in dealing with burial rights in relation to a dispute between an  Indigenous man's de facto spouse and mother has considered law regarding exhumation, succession and the significance of "Aboriginal cultural, spiritual and religious beliefs"
The judgment states
 The Deceased, Patrick Norman Fisher, was an Aboriginal man born on 3 August 1986. He passed away on 7 February 2018 without a will. 
The proceeding was commenced by urgent application to the Equity Duty Judge on Monday 18 February 2018. Carly White (‘the Plaintiff’) sought urgent orders that she be appointed the administrator of the estate of the Deceased and for orders entitling her to take possession of the body of the Deceased and to bury him at the La Perouse/Botany Cemetery, Sydney. The Plaintiff commenced proceedings after discovering that the Deceased’s mother had asserted a status as senior next of kin and the coroner had released the Deceased’s body to be buried at Cherbourg in Queensland. 
The Plaintiff’s application was opposed by Candice Williams (‘the Defendant’) who was the mother of the Deceased. She stated that she wished for the Deceased to be buried on country in Cherbourg. 
On 23 February 2018 Justice Rein ordered that the body of the Deceased be released to the Plaintiff for burial at La Perouse/Botany Cemetery. His Honour made it clear that this was not to be considered a final decision. 
These proceedings concern the question of what final orders should be made for the burial of the Deceased, even though the Deceased has already been buried. That is, there was little if any discussion about the law surrounding exhumation, specifically exhumation under Aboriginal law and custom. 
Given that the Deceased has already been buried, the Plaintiff simply seeks a declaration that she is entitled as against the Defendant to bury the Deceased’s body in Sydney. 
Although there is no formal application by the Defendant for corresponding relief in her favour if the Plaintiff is unsuccessful, the appropriate order would be a declaration to the effect that the Defendant is entitled to make an application for exhumation to the Secretary of the Department of Health pursuant to Reg 69 of the Public Health Regulations 2012 (NSW). 
... The issue before the Court is whether the Plaintiff or the Defendant was or is entitled to arrange for the burial of the Deceased and further to decide where the Deceased was to be buried. 
The starting point in this type of case is that there is no property in human remains (Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680 at 690), but if the deceased left a will, the executor has the right to arrange the burial (Smith v Tamworth City Council at 691). If the deceased dies intestate, the administrator is in the same position. 
The Succession Act 2006 (NSW) then guides who will be considered next of kin and entitled to make an application for administration. Relevantly, the next of kin is any surviving spouse (Part 4.2, Division 3), then any children of the Deceased (s 127) and then a parent of the Deceased (s 128). 
For various reasons set out below both parties here assert they have that entitlement. The Deceased was an Aboriginal man which gives rise its own special and important considerations. In matters such as these the Court exercises its inherent jurisdiction. As to the various factors that arise, I can do no better than embrace some remarks of Doyle CJ, Chief Justice of South Australia, in the matter of In the Estate of Jones (deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458, where he said in a somewhat similar situation which confronts the Court in this case (at [29]-[32]):
In the end, it seems to me that I am confronted with two fairly clear and opposing claims. One is the claim of a de facto spouse, which has some support by reference to common law principles, and also gets the support of community attitudes that are fairly widespread in Australian society. The other is the claim of the father, which is supported by genuinely held beliefs about Aboriginal custom and law, beliefs which should be respected as far as possible. There are a number of cases suggesting that usually the person with the best claim to the letters of administration of the estate of a deceased, who dies without making a will, have the right to determine the place and manner of burial. 
I refer to two in particular they are Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680 and Meier v Bell, Butterworths Unreported Cases BC 9700457. In Jones v Dodd (1999) SASC 125; 202 LSJS 201 the Full Court accepted that this was the usual approach. That is, by the usual approach I mean the reliance on these common law principles. But the Full Court did not accept that this was a binding principle to be applied in all cases, especially if there was no likelihood that letters of administration would be obtained: at 11 in particular. Perry J, with whose reasons the other members of the court agreed, said in particular at 11: 
“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 matter in question.” 
To understand that statement in context, it is important to bear in mind that Perry J did recognise that what I might call the common law approach, was the usual approach. He merely said it was one not to be rigidly applied. Also considering that statement I have to bear in mind that while the wishes and views of the defendant could be classed as religious and spiritual and perhaps the wishes and views of the plaintiff cannot, nevertheless the plaintiffs own beliefs have cultural significance because they are beliefs that would be widely shared in contemporary Australian society.
More recently in 2014, Nicholson J made some pertinent comments in State of South Australia v Smith [2014] SASC 64; (2014) 119 SASR 247 as follows (at [22]-[23]);
The received view at common law is that there is no property in a dead body; no person is entitled to ownership of a deceased’s remains. It is usually accepted that, where a deceased has left a will, the executor of the estate has the right to arrange for the burial of the body, or where there is no named executor or no will, the person who is entitled to take out letters of administration of the estate with or without a will annexed has the right. 
The common law position was summarised by Young J in the matter of Smith v Tamworth City Council
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. In circumstances where a deceased has died intestate, as in this matter, there remains support for the notion that the person eligible to apply for a grant letters of administration has the right of burial. However as noted in the judgement of Perry J (with whom Millhouse and Nyland JJ agreed) in Jones v Dodd, such an approach is problematic in situations where it is highly unlikely that a grant will be sought: 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.
His Honour went on to note (at [34]):
The authorities decided in this State, considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded. 
His Honour then identified four main considerations that could assist in the resolution of the dispute, whom might be entitled to take out letters of administration (at [47]), any Aboriginal cultural matters and concerns (at [55]), the Deceased’s own wishes (at [61]), and the wishes of any living close relatives (at [65]). 
In this Court, Campbell J in 2016 in Darcy v Duckett [2016] NSWSC 1756 at [27], in a not dissimilar set of circumstances accepted Nicholson J’s analysis that the proper approach ultimately in such a case required a balancing of common law principles and practical considerations as well as attention to any cultural, spiritual and/or religious factors that are of importance. Rothman J made reference to the authorities again more recently in 2017 in Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684. His Honour however, applied principles enunciated by Young J in Smith v Tamworth City Council. However Smith was not a case which concerned Aboriginal persons. In my view, the approach of Doyle CJ, Nicholson J as articulated by Campbell J in this Court, is the appropriate approach to be adopted. 
The Defendant in this case has no assets and died intestate. No application for letters of administration will ever likely be made. The Plaintiff nonetheless says the question as to who is the appropriate person to make such application should be considered. For example there are many authorities that support the view that where an estate exists but there is no will, a spouse or de facto spouse has been considered relevantly eligible to make such application and as a result is regarded as the person who is expected to attend to the burial. In determining whether in accordance with the authorities the Plaintiff is the best person to take out letters of administration, the nature of her relationship with the Deceased is highly relevant. To be regarded under the law as a de facto, requires many factors to be taken into account. This is apparent from the Interpretation Act 1987 (NSW), s 21C(2),(3). The factors there identified are really a checklist rather than one which is exhaustive with no particular priority. 
However there is no inflexible rule that priority to apply for administration necessarily determines the question of the release of the remains (Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 at [46], [47]), and the relevance of a de facto relationship is minimised to some extent by Part 4.4 of the Succession Act. Relevant religious, cultural and spiritual matters may well play a role together with any views expressed by the Deceased. The latter factor, the authorities suggest should be accorded considerable weight (See State of South Australia v Smith and also Frith v Schubert (2014) SASR 247 at 261). In cases such as these specific regard should be had to certain practices regarded as important by many Aboriginal people, in particular, the desire to be buried ‘on country’ (that is on ancestral lands). However, as illuminated by the expert evidence of Dr Babidge (discussed in detail below), there are occasions were practical considerations have made this ‘ideal’ unattainable. There are further particular cultural and spiritual practices that were raised in this case, including the importance of visiting and tending to the grave. 
Likewise the wishes of the Deceased’s children should carry very great weight. In particular I note the decision of Templeman J in the Supreme Court of Western Australia, in Reece v Little [2009] WASC 30, where the wishes of the children were considered extremely important particularly in the context where their mother expressed the importance of visiting their father’s grave for the purpose of grieving and mourning (at [85], [86], [97]). (see also Frith v Schubert at [57]). In State of South Australia v Smith the particular ‘living close relatives’ considered by Nicholson J to be most relevant were in fact the Deceased’s two children, he stated (at [72]) Ultimately, in my view, the interests of the deceased’s children should be accorded a greater weight than the interests of the Coober Pedy extended family even those of the maternal aunties. The nature and closeness of the respective relationships (children as against extended family) support this. 
The Court must ultimately make an evaluative judgement, taking into account all the relevant factors, including any cultural and spiritual matters, and the specific factual circumstances of the case (Darcy v Ducket [27]).
Sackar J noted in relation to  Religious, cultural and spiritual concerns
The Court may also have regard to spiritual or cultural values in resolving disputes over the privilege to dispose of a Deceased’s remains. 
The Plaintiff’s case is that the Deceased was born and raised in Redfern not in his father’s blood country, Cherbourg. Burial at La Perouse/Botany, a place where many Aboriginal people are buried, is reflective of his bond and connection with Redfern/Waterloo, which according to Dr Babidge is recognised among Indigenous people as a distinct Aboriginal community. And although a region of relatively recent origin it is nonetheless characterised by kinship ties, geographical focus on the centre of the built environment (‘the Block’) and authority figures in Aboriginal corporate bodies associated with the area. In addition Aboriginal people from across NSW and the Continent identify with a Redfern/Waterloo community, and the political activism and resistance to assimilationist government policies. Dr Babidge of course also accepts that Cherbourg is such an area as well. Although unable to identify any specific traditions that apply in Redfern or Cherbourg, Dr Babidge says that although the concept of blood connection to country is still important in contemporary Aboriginal life, it is common for many people to pass away some distance from their ancestral country. In particular Dr Babidge referred to the importance of being able to visit and tend to the grave, indeed this was emphasised in the evidence of many other witnesses. 
The Deceased clearly viewed himself as part of the Redfern/Waterloo community. Amongst his many tattoos was the word ‘Waterloo’ tattooed on his body together with the names of his sons. He played football in the area, went to school there and clearly the Redfern community regarded him as one of them. The latter is very much supported by the reaction of so many people in the area after his death. I am satisfied that the Deceased associated predominately with an urban Aboriginal culture. Over the years he had travelled to Cherbourg it seems on only three occasions [T162/35-163/14]. His contact physically at least with Cherbourg was somewhat sporadic. However it is also fair to observe that he was brought up respecting Aboriginal traditions as they pertain to country. 
Dr Babidge acknowledges the significance of burial on country. But she also comments that this is an ideal and there is a relative preference to be buried near family because of the importance of family maintaining contact with the Deceased person through visiting their grave. I should note that only one of his relatives lives near Cherbourg, his auntie Lillian. Apart from her, almost without exception, everyone else would have to travel some distance to visit his remains in Cherbourg. I consider it would be a considerable hardship for his sons and even his mother, notwithstanding her current stance. In my view, notwithstanding his visits to Cherbourg, and his deep affection and respect for his father and grandfather as a matter of practical reality, he had a much more intense and passionate attachment to the Redfern/Waterloo area, not just because of his urban lifestyle but because that is where his sons and the Plaintiff reside, as well as his mother and other family members. A decision to bury the Deceased in Cherbourg would, in my mind, give that location undue emphasis. 
There is a tension between the more traditional customs in Cherbourg and a more urban understanding of Aboriginal law/lore in the Redfern/Waterloo community. Clearly the Deceased had a strong connection with both communities and he was indeed seen by many different people as belonging to both locations. 
The evidence, which I accept, is to the effect that the Plaintiff and her sons visit the grave regularly. As no doubt do others. His mother feels presently unable to do so, partly no doubt because of this case, but also candidly indicated that she would probably visit his grave if orders were made that his body remains at La Perouse/Botany. Sadly she has forced herself to grieve without importantly visiting his grave. The Plaintiff gained an understanding from the Deceased that he had been traumatised not being able to regularly visit his own father’s grave. I accept that the ability of close family members to be able to visit and tend to the grave should be considered extremely important and awarded considerable weight.
The Court concluded
In the end, a Court has to make an evaluative judgement as to who is best suited or best able to deal with the remains of the Deceased given the various factors identified in the authorities. In my view in this case the Plaintiff and/or her children are the persons best able to deal with the Deceased’s remains consistent with his background, some of his wishes and the importance of the urban Aboriginal culture he was so deeply absorbed by.  
Had I decided otherwise, a question of whether exhumation should or should not be ordered would have arisen. As it was not a topic of argument before me I make no final determination on the matter. However I do note the position of Justice Young in Tamworth that (at 689), ‘once a body had been buried, it was not to be disturbed’. However I also note the relevant principles of Division 4 of the Public Health Regulations 2012, which now guide the process of exhumation.