In Dann v Office of the State Coroner [2020] WASC 486 the court considered an application for injunction to restrain a funeral, reflecting the right to arrange funeral, competing claims by members of the deceased's family and the significance of cultural, spiritual and religious factors.
The plaintiff commenced these proceedings by originating summons after her brother Jason Dann died suddenly. The second defendant is the Jason's estranged wife of Jason. The Supreme Court stated that the question arising in the proceedings is who should have the right to make the funeral arrangements: the plaintiff (his sister) or the second defendant (his wife from whom he was legally separated at the time of death).
In December the Coroner Stephen Sharratt issued a decision stating that he intended to issue a certificate under s 29(1) of the Coroners Act 1996 (WA), releasing Jason's body to the second defendant for burial. The plaintiff sought an order staying the Coroner's decision, restraining the release of the body to the second defendant, an order to release the body to the plaintiff and that the plaintiff have carriage of the funeral of Jason, and an order that the burial be at South Hedland Cemetery.
The judgment notes that
Jason was a proud Aboriginal man. Although he had lived in Broome from 2012 until he died, he had connections to the Nyul Nyul, Kariyarra, Ngarluma, Yindjibarndi and Banjima Countries, and had for a period of time, at least between 2006 and 2012, upheld a traditional way of life with the second defendant. During that time he lived on his ancestral homeland in the Dampier Peninsula, and sourced food, water, and shelter from the land. It must be accepted that he led a traditional way of life at other times. It is also clear that, in some respects of his life, Jason adopted a non‑traditional lifestyle, in that he was employed in a trade and that he used modern means of communication, such as the sending of text messages and email correspondence, through the internet. Jason and the second defendant married on 25 July 2009, at the Sacred Heart Church, Beagle Bay, in Broome. Jason and the second defendant have one child together, Jason Ashley Gregory Ignatius Dann Junior (Jason Jnr), who is now 16 years of age and resides with the second defendant in Perth.
In or about September 2018, the second defendant separated from Jason and moved with Jason Jnr to Perth. Jason stayed in Broome and continued to work. He provided for Jason Jnr financially. At some time following the second defendant's move to Perth, the second defendant made an application to the Child Support Agency for Jason to support Jason Jnr, which appears to have been granted.
The second defendant states in her affidavit that, whilst she has lived apart from Jason for two years, they remain married and maintained a good relationship. She claims that they never discussed divorce, and did not prepare or file an application for divorce. It is clear, however, that they did formally separate in 2018.
The plaintiff in her second affidavit states that Jason and the second defendant had discussed divorce. The plaintiff in her second affidavit states that in her culture, Jason and the second defendant, having separated, were no longer married. I do not accept this contention. There is no explanation by the plaintiff as to why that would be so. ... I am not satisfied that there was not a relationship of husband and wife between Jason and the second defendant at the time of his death.
Jason's other surviving immediate family members include his father, George (73 years), and two older sisters, Georgina (51 years) and Rosalind (49 years). The plaintiff claims that Jason also has an adult son, Jawane Fairclough (23 years). However, the second defendant says that Jason did not admit the paternity of Jawane during his lifetime. After Jason died, the second defendant made unsuccessful attempts to contact Jawane. The plaintiff claims that Jason did accept paternity for Jawane in his lifetime, and that she accepts him as her nephew. The plaintiff states in her second affidavit that she has been able to locate Jawane and has informed him about her proposed funeral arrangements, and that he is supportive of those arrangements. I do not find it necessary to determine whether Jawane was recognised by Jason as his son in his lifetime in these proceedings, as it is clear from the affidavits filed on behalf of both parties that Jason had a reasonably close relationship with Jawane. In any event, I am unable to ascertain what his views are of this application, as there is insufficient information before the court.
The issues in dispute
The issues in dispute are narrow. Both the plaintiff and the second defendant agree that the funeral should be conducted in Port Hedland, and that Jason's body should be buried. The parties also agree that Jason should be buried in accordance with his wishes and the Nyul Nyul, Banjima, and Kariyarra traditions, which are that: (a) there should be a service conducted by a priest at St Cecilia's Catholic Church; (b) as part of Jason's family tradition, there should be a nine-day novena, which includes a series of prayers recited over nine days in honour of Jason. On the ninth day, Jason will be buried, and final prayers will be said at the gravesite; and (c) family from Beagle Way in the Kimberley will bring sand from Jason's Country, which will be placed with Jason when he is buried. ...
The plaintiff claims that, as the spokesperson of Jason's family, and in accordance with his wishes, she should be the person who should be entitled to take possession of Jason's body and proceed with the funeral arrangements that she has made on behalf of his family. The plaintiff states in her second affidavit that it is not culturally appropriate for Nyul Nyul, Banjima, Kariyarra, Ngarluma and Yindjibarni peoples to be buried on a Friday, and that the second defendant has disregarded their request for the funeral to occur on a Saturday rather than a Friday. The plaintiff also states in her second affidavit that in Nyul Nyul and Kariyarra custom: (a) it is for the father of the deceased to choose the pallbearers, which should not include children or nephews of the deceased, and if Jason's mother was still alive she would also be involved in making that decision; (b) the parents of the deceased should be the ones to travel in the car with the deceased to the funeral; and (c) there should not be photographs of the deceased in Tribute Books that are to be distributed at the funeral. The plaintiff in her second affidavit states that she has tried not to exclude Jason Jnr from the funeral arrangements, and has communicated directly with him following his father's death.
The second defendant claims that she should be the person who should be entitled to take possession of Jason's body and proceed with the funeral arrangements, because it is important for her and Jason's son, Jason Jnr, to be a part of organising his father's funeral. The second defendant says that she is a woman of the Nanda people, and has a deep appreciation and respect for the customs and traditions of Jason's people and her people.
The plaintiff claims that the second defendant is not Aboriginal. In her second affidavit, she states that she has searched the register on the website of the Office of the Registrar of Indigenous Corporations and ascertained that the second defendant is not a member of either the Nanda Aboriginal Corporation or the Barrel Well Community Nanda Corporation. Whilst that may be the case, I do not accept the plaintiff's contention that it necessarily follows because the second defendant is not on the register of either of those native title organisations that she is not Aboriginal. This is because there are many people who are part of a particular group of Aboriginal people who have not registered as a member of a particular Aboriginal corporation. Jason's father and sisters are recognised members of native title claim groups, including IBN, Gumala Aboriginal Corporation, and Australian Executor Trustees. ...
Legal Principles
This court has jurisdiction pursuant to s 4 of the Administration Act 1903 (WA), and inherent jurisdiction, to determine who should have carriage of a funeral, and where, and how, a body should be disposed of.[4] 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. The Office of the State Coroner points out in their written submissions that the equivalent duty to issue in the Coroners Act 1985 (Vic) has been interpreted as carrying with it, by necessary implication, the power to decide questions as to where, and by whom, the disposal will be carried out, which is essential to the effective discharge of the Coroner's functions.
As counsel for the plaintiff points out, it is an established principle at common law that there is no property in a dead body, but executors are entitled to custody and possession of the body for the purpose of disposal of the body. The principles of law that apply in this State as to how this court is to determine who should have possession and control of the body of a deceased were recently set out by Archer J in Attwood v Office of the State Coroner as follows:
(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) Where 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 equally 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. Where those claiming the privilege of burial have equally ranking rights for administration, the question turns largely to matters of practicalities, paying due regard to the need to have the body disposed of without unreasonable delay but with all proper respect and decency. Relevant factors Who is the party who has the highest ranking privilege to take out administration of Jason's estate? Whilst the second defendant and Jason were separated at the time of his death, until divorced, at law, the second defendant was still his wife at the time of his death. Pursuant to the table in s 14 of the Administration Act 1903 (WA), the second of defendant has the highest right to apply for administration of the estate of Jason, pursuant to s 25(1) of the Administration Act.
The plaintiff contends that the legal principles that apply in determining whether a person was in a 'surviving de facto relationship' should be applied. In particular, the plaintiff argues that it is crucial to consider the nature of the Jason's relationship with the second defendant at the time of death, as a failure to do so would result in a situation whereby the carriage of the deceased's funeral would fall to somebody with whom the deceased's relationship had irretrievably broken down and was not 'marriage-like', 'in the nature of marriage', or of the 'required quality'. This could result in the deceased's wishes not being given all proper respect and decency and, in the present case, in him being buried in a manner that would offend his customs and traditions. This argument has no basis in law. The Coroners Act expressly contemplates that a senior next of kin can be a spouse of a deceased that does not live with the deceased. Also, the Administration Act does not contemplate, or require in any way whatsoever, that for a wife or husband of a deceased to be entitled to a distribution of property, or to apply for administration of a deceased estate, they must have lived with the deceased prior to the deceased's death or that their marriage had not broken down.
Counsel for the second defendant argues that, pursuant to s 37(5) of the Coroners Act, the senior next of kin is the person who is entitled to take control of the deceased’s body for the purposes of burial. In determining who is the senior next of kin, siblings of a deceased are ranked below the legal spouse of the deceased. The Coroners Act even goes as far to distinguish between spouses who are residing together at the time of death, and those who are not residing together at the time of death. In both instances, a legal spouse outranks a sibling. Section 37(5) of the Coroners Act provides:
(5) In this section, unless otherwise prescribed, 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; or (e) a brother or sister, who is of or over the age of 18 years, of the person; or (f) an executor named in the will of the person or a person who, immediately before the death, was a personal representative of the person; or (g) any person nominated by the person to be contacted in an emergency.
On the basis that the second defendant outranks the plaintiff to apply for administration of the deceased estate, this is a factor that favours a grant in favour of the second defendant, as her right to apply to have carriage of the burial of Jason is higher than that of the plaintiff.
Wishes expressed by the deceased prior to death
The court may often give significant weight to the wishes of the deceased, particularly where those wishes are consistent with the established legal framework for resolving burials, and with the intentions of the person entitled to determine the form of burial. Both the plaintiff and her sister, Rosalind Jennice Dunstan, say that Jason told them that he wanted the plaintiff to 'handle his affairs' after his death. In her affidavit, Ms Dunstan states that she had various discussions with the deceased about what they wanted to happen to each of them after they passed away. The most recent discussion was when Jason last visited her home in Perth in September 2020. On that occasion, he told her that he wanted the plaintiff to handle his affairs when he was gone, that he wanted to be buried at the cemetery in South Hedland, and that he had pre‑booked a plot there, next to where their mother and brother are buried.
The wishes of a deceased is a factor to be considered, but is not on its own determinative. The wishes of Jason do favour a grant to the plaintiff. In any event, even if an order is made in favour of the second defendant, it is clear his wish to be buried in his pre-booked plot should be honoured.
Cultural, spiritual and religious values of the surviving family
Unfortunately, there is animosity between the plaintiff and the second defendant. The cultural, spiritual and religious values of Jason and his surviving family should be given weight. For the reasons I have given, his surviving family include the second defendant, as she is his wife. Whilst the plaintiff makes much of the differences in the arrangements proposed by the second defendant, there is very little difference between them. The second defendant in her affidavit makes it clear that she intends to conduct a proper and decent burial of Jason in accordance with all of the traditions, and cultural and religious values, of Jason's peoples. Given that no firm date has yet been set for the funeral by either party, I see no reason why, if the second defendant is to have charge of the funeral, the day and date of the funeral could not be changed to a Saturday. I also see no reason why an order could not be made that no photographs be shown of the deceased at the funeral. The main issue appears to be whether Jason Jnr should be a pallbearer, and whether he should be allowed to travel in the funeral car with his grandfather and his father's body.
The Court states that the Coroner chose to release the body to the second defendant on the basis that she was the senior next of kin of Jason, as opposed to the plaintiff who was one of his next of kin.
The senior next of kin is defined in s 37(5) of the Coroners Act to mean, in relation to a deceased person, the first person who is available in the order of priority listed in the following subsections. The second defendant answers the description of a person in s 37(5)(b) as she is a person who, immediately before death, was legally married to Jason. The plaintiff answers the description of a person in s 37(5)(e) as she is a sister of Jason who is over the age of 18 years. Consequently, the second defendant was the first person in the order of priority of s 37(5), and it was on this basis that the Coroner made his decision to issue a certificate to the second defendant, under s 29(1) of the Coroners Act, to permit the disposal of Jason's body. Significant weight should be given to the decision of the Coroner to grant the certificate to the second defendant.
The Court goes on to note that
The wishes of the children of a deceased (whether or not they are a party to the proceedings) are relevant. In Reece v Little, Templeman J remarked in that matter that the wishes of the deceased's children carried very great weight. In this matter, it is clear that Jason has one biological child, Jason Jnr. It is less clear whether Jawane is also his biological child. I cannot determine whether he is or not. Although Jason Jnr is only 16 years old, his wishes should be respected. Even if Jawane is a biological child of Jason, it is not entirely clear exactly what the wishes of Jawane are. The only inference that can be drawn from the second affidavit of the plaintiff is that he is supportive of the funeral arrangements that the plaintiff has made. No further inference can be drawn from the plaintiff's account of her conversation with Jawane. In particular, in light of the fact that there is very little dispute about the funeral arrangements themselves, it cannot be inferred that he is of the view that only the plaintiff should have carriage of the funeral arrangements and not the second defendant.
While the usual principles applied by this court are that the right of carriage of a burial by a surviving spouse is to be preferred to the right of children, the right of a child is generally to be preferred to that of a sibling of a deceased. As there is evidence before the court that Jason Jnr supports the orders sought by his mother that she should have carriage of the funeral arrangements, this is a factor that supports an order in favour of the second defendant. It appears that the plaintiff has the greater availability of immediate funds to pay for the funeral and the disposal of the body of Jason. However, the second defendant is willing to fund the cost of the funeral if funding cannot be obtained through an Aboriginal corporation. In any event, as counsel for the second defendant points out, the costs of the funeral is a cost to the estate, and can be recovered from the deceased's estate.
The conclusion was
I appreciate that in this case, as in many of the cases that come before this court that involve families, 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 causes much distress to the losing party. It is unfortunate that the parties to these proceedings have not been able to reach agreement as to who should have the carriage of the funeral arrangements when both parties put forward substantially the same arrangements. However, no agreement has been reached despite the fact that a registrar of this court has attempted to mediate an agreement between the parties this morning before this hearing.
Regrettably, this court must decide who should have the right to arrange Jason's funeral and, in doing so, I must apply the established principles of law. Having considered all of the evidence filed on behalf of the parties, and the submissions made by their counsel, this case is not such a rare case that would warrant the court departing from the common or usual approach. When regard is had to all the relevant factors and considerations, I am of the opinion that the second defendant should have the carriage of Jason's funeral. This is because, when all relevant matters are considered on balance, the relevant 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 disposal of the deceased's body.
There is a similar dispute in Frail v Shorey & Anor [2021] NSWSC 122, with disagreement about cremation, smoking ceremonies and burial location.
