Supreme Court Rules on Burial Rights Between Mother and Partner

The court dismissed the claimant's summons and granted the respondent's cross-claim regarding burial rights. The decision considers whether a de facto partner is entitled to custody of the body for funeral arrangements if they were in a relationship at the time of death.

OUTCOME: Dismissed

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] in his capacity as a Coroner [2019] NSWSC 701 Hearing dates: 27, 28, 29, 30 May 2019 Date of orders: 13 June 2019 Decision date: 13 June 2019 Jurisdiction: Common Law Before: Emmett AJA Decision:

1. Order that the amended summons be dismissed.

2. Order that the cross claimant is entitled, as against the plaintiff, to have the body of the late [NAME] ([NAME]) delivered to her for the purpose of making funeral and burial arrangements and that she is entitled, as against the plaintiff, to bury [NAME] at Kempsey or such other place as she wishes.

3. Direct that there be no order as to the costs of the summons or the cross summons. Catchwords: SUCCESSION – where [NAME] died intestate and no administrator has been sought – whether priority to take administration under the Probate and Administration Act 1898 (NSW) determines the question of release of remains.

HEALTH LAW – burial and cremation - whether the [NAME] is entitled, as against the [NAME], to the body of [NAME] for the purposes of making burial arrangements – whether the [NAME] is entitled, as against the [NAME], to bury [NAME] at Armidale as opposed to Kempsey.

FAMILY LAW – de [NAME] relationship – whether the Second Defendant was in a de [NAME] relationship with [NAME] at the date of his death within the meaning of s 21C of the Interpretation Act 1987 (NSW) – whether the Second Defendant was therefore senior next of kin under s 6A of the Coroners Act 2009 (NSW). Legislation Cited: Child Support (Assessment) Act 1989 (Cth) Coroners Act 2009 (NSW) Interpretation Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Cases Cited: Sharp v Lush (1879) 10 Ch Div 468 South Australia v Smith & Anor (2014) 119 SASR 247 Category: Principal judgment Parties: [NAME] (Plaintiff) [RESPONDENT] in his capacity as a Coroner (First Defendant) [RESPONDENT] (Second Defendant) [RESPONDENT] (Third Defendant) Representation: Counsel: [redacted] (Submitting appearance) (First Defendant) [RESPONDENT] (Second Defendant) (Submitting appearance) (Third Defendant)

Solicitors: [redacted] Crown Solicitor for NSW (First Defendant) (Submitting Appearance) [NAME] (Second Defendant) [RESPONDENT] (Third Defendant) (Submitting Appearance) File Number(s): 2019/139183

Judgment

Introduction 1. These proceedings are concerned with the burial of [NAME] ([NAME]), who died by his own hand on 26 April 2019 at the age of 36 years. The plaintiff, [NAME] [NAME], claims an order that she is entitled, as against the second defendant [NAME] [RESPONDENT] [NAME], to have the body of [NAME] delivered to her for the purpose of making burial arrangements and that she is entitled, as against [NAME] [NAME], to bury [NAME] at Armidale if she so wishes. By her cross-claim, [NAME] [NAME] claims an order that she is entitled, as against [NAME] [NAME], to have the body of [NAME] delivered to her for the purpose of making funeral and burial arrangements and that she is entitled, as against [NAME] [NAME], to bury [NAME] at Kempsey or such other place as she wishes. [NAME] [NAME] is the [NAME]. [NAME] [NAME] was for many years in a de [NAME] relationship with [NAME] and claims to have been in such a relationship at the date of his death, something disputed by [NAME] [NAME]. It is common ground that the questions raised in these proceedings are justiciable by the Court as part of its inherent jurisdiction [1] .

2. The first defendant in the proceedings is [RESPONDENT], in his capacity as a coroner (the Coroner). The third defendant is the [RESPONDENT], which operates the [COMPANY], where the body of [NAME] presently lies. Each of the first defendant and third defendant has filed a submitting appearance.

The Death of [NAME] 1. [NAME] and [NAME] were together on Anzac Day, the day before [NAME] died, drinking at the house in Kempsey of Mr [NAME], who is [NAME] [NAME] uncle. They later played two-up together at a hotel in Kempsey, after which they returned to Mr [NAME] house, where they continued to drink. They went to sleep on a couch. At some time during the night, [NAME] woke up and he and [NAME] [NAME] had an argument. [NAME] did not go back to bed with [NAME] [NAME]. When [NAME] [NAME] awoke the next morning, [NAME] was missing. After searching for [NAME] first at her parents' house and then at the house where they had previously been living, which was being renovated, she found that [NAME] was dead.

2. Mr [NAME] said that [NAME] and [NAME] were at his house on the day before [NAME] died and had been drinking with him the night before he died. He said that [NAME] and [NAME] had an argument because [NAME] was drinking and "acting up". He said that "they made up" and that [NAME] began watching television. Subsequently, [NAME] lay down and Mr [NAME] left him. When he returned a short time later, [NAME] had gone. [NAME] [NAME] stayed drinking with Mr [NAME] and his party and stayed that night at Mr [NAME] house. On the following morning, Mr [NAME] heard of [NAME]'s death.

3. The death of [NAME] and the circumstances in which he took his own life have not been explained. For example, there was no evidence that any disagreement with [NAME] the night before his death had anything to do with his decision to take his own life. There is simply no explanation as to why he took such a drastic step at the time when he did. If they had been, that may have thrown some light on his relationship with [NAME] [NAME]. However, no hypothesis was advised by either party as to the reason why he took his own life.

Statutory Context 1. Under the common law, where a [NAME] leaves a will appointing an executor, the executor has a duty to see to the burial of [NAME] and has a concomitant right to custody of the body of [NAME] [2] . However, the position is not entirely clear where there is no will or no executor appointed. By analogy, the person or persons best entitled to the grant of letters of administration in respect of the estate of [NAME] would be regarded as being in the same position as an executor. It is, of course, possible for an executor to renounce probate and there will be no obligation on any person to apply for the grant of letters of administration, whether or not a grant to that person might be likely.

2. Under s 44 of the Probate and Administration Act 1898 (the Probate Act), upon the grant of probate of a will or administration of the estate of a [NAME], all real and personal estate in New South Wales which such person was seized of at the date of death passes to and becomes vested in the legal personal representative, as from the date of death. However, under s 61, from and after the decease of any person, until the grant of probate or administration or of an order to collect, the property of [NAME] is deemed to be vested in the NSW Trustee and Guardian (the NSW Trustee) constituted under the NSW Trustee and Guardian Act 2009 (NSW). The NSW Trustee is not a party to these proceedings.

3. The function of the legal personal representative of a [NAME] is to get in the estate of [NAME], discharge all of the proper debts and obligations of [NAME], and then distribute the balance either in accordance with the wishes of [NAME] as stated in a valid will or in accordance with the rules of intestacy as provided for under the Succession Act 2006 (NSW).

4. Since there is no executor in respect of the estate of [NAME], it is relevant to have regard to the identity of any person who may be entitled to a grant of administration. In that regard, there could be a dispute between creditors, on the one hand, and those entitled on intestacy, on the other. However, there is no evidence in this case of any creditors of [NAME].

5. Under s 63 of the Probate Act, the Court may grant administration of the estate of an intestate person to the following persons, not being minors: * the spouse of [NAME]; * one or more of the next of kin; or * the spouse conjointly with one or more of the next of kin. If there be no such person, or no such person within New South Wales, the Court may grant administration to a person who is, in the opinion of the Court, fit to be so trusted or who, upon being required in accordance with the rules or as the Court may direct, to apply for administration, complies with the requirement or direction. Finally, the Court may grant administration to any person, whether a creditor or not of [NAME], that the Court thinks fit.

1. Under s 32G of the Probate Act, a reference in the provisions referred to above to the spouse of an intestate includes a reference to a person who, at the time of death of the intestate, was the de [NAME] spouse of the intestate, except where the contrary intention appears. A de [NAME] spouse, in relation to a person dying wholly or partly intestate, means someone who was a partner in a de [NAME] relationship with the person.

2. The dispute between [NAME] [NAME] and [NAME] [NAME] arises in the context of the provisions of the Coroners Act 2009 (NSW) (the Coroners Act). Under the Coroners Act, certain matters are reserved for the consent of the senior next of kin of a [NAME], who is given standing in relation to various matters involving post mortem examinations and the like. Under s 6A of the Coroners Act, the senior next of kin of a [NAME] for the purposes of that Act is, relevantly, [NAME]'s spouse or, if [NAME] did not have a spouse or children who are adults, either of [NAME]'s parents. Under s 4, "spouse" means the person whom a person is legally married to or a [NAME].

3. Section 21C of Interpretation Act 1987 (NSW) (Interpretation Act) provides, relevantly, that a person is the de [NAME] partner of another person if the person is in a de [NAME] relationship with the other person. A person is in a de [NAME] relationship with another person if they have a relationship as a couple living together and they are not married to one another or related by family. In determining whether two persons have a relationship as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: 1. the duration of the relationship; 2. the nature and extent of their common residence; 3. whether a sexual relationship exists; 4. the degree of financial dependence or interdependence between them; 5. the ownership, use and acquisition of property; 6. the degree of mutual commitment to a shared life; 7. the care and support of children; 8. the performance of household duties; and 9. the reputation and public aspects of the relationship.

1. Under s 21 of the Coroners Act, a coroner has jurisdiction to hold an inquest concerning the death of the person if it appears to the coroner that the person's death is a reportable death. The death of [NAME] was a reportable death within the meaning of the Coroners Act. Under s 56 of the Coroners Act, a coroner has a right to take possession of and retain the remains of a [NAME] whenever the coroner has jurisdiction to hold an inquest concerning the death of that person. That right of the coroner has priority over any other right to possession of the remains of a person but otherwise does not affect any other such right.

2. Under s 100 of the Coroners Act, a person must not bury or cremate human remains or place human remains in a mausoleum or other permanent resting place unless that person has been given an appropriate disposal authorisation for the disposal of the remains. Under s 101, a coroner may authorise the disposal of human remains.

3. On 2 May 2019, [NAME] [NAME] sent an email to the Coroner saying that she understood that [NAME] [NAME] had been named "senior next of kin" in respect of [NAME] and that she wished to challenge that determination. She said that she understood that [NAME] [NAME] was planning to remove [NAME]'s body to Kempsey for burial and asserted that that was against her culture and [NAME]'s express wishes. [NAME] [NAME] requested that she be recognised as "senior next of kin" on the basis that [NAME] and [NAME] [NAME] had been separated for some time, did not live together in the same house at the time of his death and their relationship had ended. She said that her family was going through "Sorry Business" and awaited the Coroner's response so that [NAME] could be placed with his family members "in Country".

The Dispute 1. On 3 May 2019, [NAME] received an email from the registrar of the [ADDRESS] saying that the Coroner had confirmed, "in accordance with the Coroner's [sic] Act", that [NAME] [NAME] was the "Senior Next of Kin" of [NAME]. The email said that the Coroner "does not determine or make decisions" about funeral arrangements and that it was necessary for any family of [NAME] to talk to the "Senior Next of Kin". The registrar said that, if [NAME] wished to dispute the matter, it would need to be dealt with "at a higher Court".

2. On 3 May 2019, [NAME] J made orders restraining the [COMPANY] from releasing of the body of [NAME] until further order of the Court. On 7 May 2019, [NAME] J ordered that the hearing of the proceedings be expedited and fixed the proceedings for hearing on 27 May 2019 for one day. However, the hearing did not do not finish on that day and continued on successive days. At one stage the parties were given some time to negotiate a possible compromise. However, those negotiations came to naught.

3. It is common ground that, for many years, [NAME] and [NAME] [NAME] were in a de [NAME] relationship. However, there is a dispute as to whether that relationship was continuing as at the time of the death of [NAME]. [NAME] died intestate and appears to have owned only negligible property, such that it appears highly unlikely that there will be an application for a grant of letters of administration in respect of his estate.

4. Much of the present dispute arises out of the circumstance that [NAME] was an Aboriginal man and each of [NAME] [NAME] and [NAME] [NAME] is an Aboriginal woman. [NAME] [NAME] and the father of [NAME], Mr [NAME], are [NAME] people, whose traditional country is the New England region of New South Wales, including the city of Armidale. [NAME] [NAME] wants [NAME] to be buried in [NAME] country. [NAME] [NAME], however, lives in Kempsey, where she and [NAME] and their children have lived for some years. She wants [NAME] to be buried at Kempsey where she and their children continue to reside.

5. The proceedings were conducted by the parties on the basis that four considerations arose concerning the right or entitlement to conduct the burial of a [NAME] of Aboriginal descent [3] . The considerations are as follows: * the person or persons to whom a grant of letters of administration would likely be made, if applied for; * the wishes of [NAME], to the extent that they are known; * the wishes and sensitivities of the living close relatives and community of [NAME]; and * Aboriginal cultural matters and concerns.

[NAME] [NAME] as Spouse 1. [NAME] [NAME] and [NAME] had been in a relationship for some 20 years, during which, they reared six children, five of whom were the biological children of [NAME]. [NAME] [NAME] claims that she was the [NAME] at the time of his death. That claim is disputed by [NAME] [NAME]. To resolve that dispute, it is necessary to consider the evidence given by some 13 witnesses on behalf of [NAME] [NAME] and nine witnesses on behalf of [NAME] [NAME]. 2. [NAME] [NAME] and [NAME] met when she was 14 years old and he was 16 years old. At that time, [NAME] was living at Belmont with his aunt and uncle. At the time, [NAME] [NAME] was pregnant with her first child, who is not the biological child of [NAME]. [NAME] and [NAME] [NAME] began living together in 2000 when, according to [NAME] [NAME], they ran away to Armidale for several weeks. [NAME] [NAME] then took [NAME] back to Gateshead near Newcastle where she was living to meet her parents. [NAME] moved in with them. Apart from two periods when [NAME] was in prison for about eight months for violence against [NAME] [NAME], [NAME] and [NAME] [NAME] have lived together since 2000.

3. The eldest child of [NAME] and [NAME] [NAME], was born in 2001. When [NAME] was six or seven months old, [NAME] and [NAME] [NAME] returned to Newcastle where their second child, [NAME] [NAME], was born in [DATE]. They lived with her parents in Newcastle for about six months. When [NAME] was about six months old, [NAME] and [NAME] [NAME] moved back to Armidale where they lived with [NAME]'s brother, [NAME] for several weeks. They lived in other Department of Housing houses in Armidale for about three and a half years. Their third child, [NAME] [NAME], was born in [DATE]. 4. [NAME] first went to prison in 2007 or 2008, [NAME] [NAME] moved with their children Bowraville. When [NAME] was released, he came to live with them in Bowraville where they stayed for a total of about nine years. They lived with [NAME] [NAME] parents at Bowraville for about 12 months and then had their own house through Bowraville Local Aboriginal Land Council. [NAME] [NAME] was born in [DATE] and [NAME] was born in [DATE]. [NAME] lives with [NAME] [NAME] aunt in Greenhill. The other children, apart from [NAME], have always lived with [NAME] [NAME] and [NAME]. While they were living in Bowraville, [NAME] and [NAME] were both members of the Bowraville Local Aboriginal Land Council.

5. In 2015, [NAME] and [NAME] moved back to Kempsey, about six months after her parents had moved to Kempsey. They lived with [NAME] [NAME] parents for about three months. In 2017, [NAME] [NAME] brother made available to them a house at Greenhill, Kempsey, owned by Kempsey Local Aboriginal Land Council. They lived there for a little over 12 months. The house needed a lot of renovation and, while the house was being renovated, [NAME] and [NAME] moved to her parents' house. There they remained until [NAME] died.

6. From time to time, [NAME] complained to [NAME] [NAME] that [NAME] [NAME] family had a negative impact on their relationship. He told his mother that [NAME] [NAME] parents were always interfering with their relationship and that her family did not like him. 7. [NAME] [NAME[NAME], who is [NAME] [NAME] sister, gave evidence that, in the course of a fishing trip that she went on with [NAME] in 2016 or 2017, [NAME] told her that he was no longer with [NAME] [NAME] and that he was single. She said that every time she saw [NAME] he was by himself or with his youngest child, [NAME].

8. In March 2019, Mr [NAME], an elder of the [NAME] people, attended the funeral of [NAME] [NAME], [NAME]'s grandmother. Mr [NAME] said that [NAME] told him that he was living by himself and that he had split up with [NAME] [NAME]. [NAME] told him that his children were still living with [NAME] [NAME] and that he was staying in Kempsey so that he could be near his children. 9. [NAME], the eldest child of [NAME] and [NAME] [NAME], gave evidence that she has lived with her parents and siblings and other relatives for as long as she can remember and that the only time when her parents were apart was when her father went to work every day. She said that she saw her father every day and that when he was working on a civil construction site near Kempsey during the last year or two he would wake up early, about 4 or 5 am in the morning, and wake her up at about 6.30am. She said that she was accustomed to seeing him before her mother or her grandfather, [NAME], took [NAME] to work and that she would see her father when he returned home. 10. [NAME] is a cousin of [NAME] and is in a relationship with [NAME] [NAME] brother, [NAME]. [NAME] [NAME] said that, in November 2012, she and [NAME] moved to Bowraville where they lived with [NAME] and [NAME] [NAME] for about a year. They moved back to Armidale after that time but continued to see [NAME] and [NAME] [NAME] and their family on a regular basis. At the beginning of 2015, she and [NAME] stayed for a few months with [NAME] and [NAME] [NAME] in Bowraville, where [NAME] had a business building coffins. In October 2018 [NAME] [NAME] cousin died and [NAME] and [NAME] travelled to Kempsey to help [NAME] with a coffin for the cousin. They stayed with [NAME] and [NAME] [NAME] and have lived with them since that time. She said that, from the beginning of 2019, when the house in which [NAME] and [NAME] [NAME] were living was being renovated, they all moved into the house occupied by [NAME] [NAME] parents.

11. Mr [NAME] ([NAME[NAME]), [NAME] [NAME] father, who is a cousin of [NAME]'s great grandfather, gave evidence that [NAME] and [NAME] [NAME] have, since they got together, lived either with Mr [NAME] or very close by him. He said that even when they were not living together he saw [NAME] and [NAME] [NAME] almost every day. He said they lived in Newcastle in around 2001, when they all moved together to West Wallsend. They subsequently moved to Armidale for a couple of years before moving to Bowraville for several years. He said that four or five years ago they all moved to Kempsey.

12. Mr [NAME] said that after [NAME] lost his driver's license several years ago, he drove [NAME] around every day. He said that, at the beginning of 2019, because the house in which [NAME] and [NAME] [NAME] were living was being renovated, they and their children moved into his house and were living with him when [NAME] died. Mr [NAME] said that he has worked with [NAME] in a coffin building business in the past few years. He said that [NAME] did most of the building and that he, Mr [NAME], did most of the talking for the business, because [NAME] was very shy about that.

13. Mr [NAME] has known [NAME] [NAME] and [NAME] all their lives. He and [NAME[NAME] are second cousins and for several years he had a relationship with [NAME]'s aunt. Mr [NAME] said that, until about five months ago when renovations began on their house, [NAME] and [NAME] [NAME] lived down the road from him. Mr [NAME] said that he saw [NAME] and [NAME] [NAME] regularly when they came over to his house on Saturdays for drinks and when [NAME] and Mr [NAME] son did landscaping work on Sundays. He said that he had occasionally witnessed [NAME] and [NAME] [NAME] arguing but that they made up quickly. 14. [NAME] [NAME] is [NAME] [NAME] aunt and she and [NAME[NAME] live next door to each other. [NAME] [NAME] said that she saw [NAME] [NAME] and [NAME] nearly every day, that she has always seen them together and that she has never heard of them being separated. She said that in the last couple of months they have been living next door to her at [NAME] [NAME] parents' house.

15. Mr [NAME] is the Chief Executive Officer of Bowraville Local Aboriginal Land Council. He has known [NAME] [NAME] and [NAME] for approximately 15 years. Mr [NAME] made coffins with [NAME] and [NAME[NAME]. Mr [NAME] said that [NAME] was in Bowraville recently and worked for a couple of days. He said that [NAME] [NAME] came with [NAME] and stayed with him while he worked on the mission where [NAME] [NAME] mother has family. 16. [NAME] [NAME] is [NAME] sister. She has known [NAME] [NAME] for over 30 years. [NAME] is [NAME] cousin. [NAME] said that she speaks to [NAME] [NAME] and her children on the telephone regularly and used to go to Kempsey every fortnight. She described the relationship between [NAME] and [NAME] [NAME] as being "like any other relationship" and said that they "had their ups and downs but they stuck it out". She said that every time she saw them, they were together. 17. [NAME] [NAME] contends that the nature and quality of the relationship between [NAME] and [NAME] [NAME] was such that it should be afforded little weight in the resolution of the present dispute. Through her counsel, she characterised the relationship as "problematic", "volatile" and "fractured". In that regard, she relied on evidence to the following effect: * There was domestic violence in the relationship and frequent arguing between [NAME], on the one hand, and [NAME] [NAME] and her family, on the other, and [NAME] was imprisoned for at least eight months on two occasions for violence against [NAME]; * Just before Christmas 2018, [NAME] told his mother that he was "really sick, had gone onto Newstart payments and was not allowed to return to work without a medical clearance"; * At the end of 2018, [NAME] told his mother that he thought [NAME] [NAME] was in a relationship with somebody else and that he was terrified that he was going to lose his children; * Shortly after Christmas 2018, [NAME] told his mother that he believed that [NAME] [NAME] had been cheating on him and that [NAME] [NAME] family were always interfering, did not like him staying with them and that [NAME[NAME] and other members of the [NAME] family physically assaulted him; * [NAME] told [NAME[NAME] that his relationship with [NAME] [NAME] was not good; * At the end of 2018, [NAME] told [NAME] that he and [NAME] were "not getting on"; and * In the months before he died, [NAME] told his sister, [NAME], that he thought [NAME] [NAME] was cheating on him and that they had been arguing a lot. 1. [NAME] [NAME] contends that, at the date of his death, [NAME] and [NAME] [NAME] were not in a de [NAME] relationship within the meaning of the Interpretation Act. She contends that they were not living together at the date of the death of [NAME] having regard to evidence to the following effect: * Just after Christmas 2018, [NAME] told his mother that [NAME] [NAME] was "living up with her mum and dad" and that he was "couch surfing" because they did not want him there; * Several months before he died, [NAME] told his brother, [NAME], that he was "on Newstart on one address" and that [NAME] [NAME] was "receiving Centrelink payments on the parents' address"; * In the month before his death, [NAME] told his sister, [NAME], that [NAME] [NAME] had been living with her parents with the children and that he was "couch surfing" at friends' places; and * At his grandmother's funeral at the end of March 2019, [NAME] told his brother, [NAME], that he was staying at a friend's place and told Mr [NAME] that he was living by himself, that he had split up with [NAME] [NAME] and that the children were living with her.

1. The evidence as to the financial relationship between [NAME] and [NAME] [NAME] is not entirely conclusive. From as early as 9 October 2017, [NAME] [NAME] had a bank account of her own and there was no evidence that [NAME] and [NAME] [NAME] had a joint bank account. There was no evidence that [NAME] and [NAME] [NAME] jointly owned any property. 2. [NAME] [NAME] placed considerable emphasis on evidence concerning responsibility for the care and support of the children of [NAME] and [NAME] [NAME]. Under s 25(b) of the Child Support (Assessment) Act 1989 (Cth), a parent of a child may apply for administrative assessment of child support for a child if, amongst other things, the parent is not living with the other parent as his or her partner on a genuine domestic basis, whether or not legally married the other parent. If a registrar is satisfied that an application is being properly made for administrative assessment of child support for a child, the registrar is required to accept the application and must assess both parents in respect of the costs of the child. Part 5 of the Act provides formulas for assessing the annual rate of child support payable by a parent for a child.

3. The costs to parents of raising children are to be met by both parents according to each parent's capacity. To determine each parent's capacity to meet costs, the parents are assessed in respect of the costs of the child. The provisions require each parent's percentage of care for the child to be worked out. Where the registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period, the registrar must determine the responsible person's percentage of care for the child during the care period. The percentage of care must be nought per cent unless a care arrangement applies to a child.

4. Child support statements issued by Centrelink to [NAME] [NAME] from 8 December 2017 indicate that [NAME] [NAME] was claiming child support from [NAME]. The statements indicate that, from that time, the Department of Human Services recorded that [NAME] [NAME] had 100% of the care of the children and that [NAME] had no part of the care of the children. The statements indicate that, from 1 January 2018, the Department of Human Services collected in excess of $12,500 in child support from [NAME] and paid it to [NAME] [NAME]. Outstanding child support arrears of $10,901.52 remained due and payable on [NAME]'s account. The assessment statements afford evidence in support of a conclusion that [NAME] was not caring for any of the children during the periods to which the assessment statements relate. [NAME] [NAME] accepted in cross-examination that during the period from 2 September 2008 until his death [NAME] was not looking after their children and that she "had the children". She agreed that she was receiving family assistance payments as a single parent between 8 December 2017 and 31 August 2018.

5. The evidence as to whether a sexual relationship between [NAME] and [NAME] [NAME] continued up to the date of his death is not conclusive. Clearly, they have been in a sexual relationship over many years. The evidence summarised above concerning their living together would give rise to an inference that a sexual relationship continued until the death of [NAME].

6. It is reasonable to conclude, from the evidence of witnesses called on behalf of [NAME] [NAME] concerning the apparent relationship between her and [NAME], that the public appearance was that their relationship of many years continued to the time of his death. In the year before the death of [NAME], they attended two family funerals together. [NAME]'s step sister, [NAME], died in dramatic circumstances approximately a year ago. [NAME] and [NAME] [NAME] attended [NAME] funeral in Armidale together. In addition, [NAME]'s grandmother died in March 2019. Again, [NAME] and [NAME] attended the funeral together, together with their children. [NAME] was driven by [NAME] [NAME] to the funeral for his grandmother. Discussions concerning burial between [NAME] and his family said to have taken place on those occasions will be referred to below. 7. [NAME]'s death, his brother, [NAME], and sister, [NAME], met with [NAME] [NAME] and [NAME] partner [NAME] to prepare a funeral booklet in relation to [NAME]. [NAME] and [NAME] [NAME] had previously prepared a draft pamphlet which they showed to [NAME] [NAME] when they went to Kempsey. [NAME] [NAME] was identified as [NAME]'s "de [NAME]" in the draft pamphlet.

8. It was never suggested to [NAME] [NAME] in cross-examination that she was financially independent of [NAME] at the time of his death. Further, it was never put to her that, at the time of [NAME]'s death, they were not in a sexual relationship or that there was no commitment to a shared life. On the other hand, there was no positive evidence from [NAME] [NAME] as to either of those matters.

9. The state of the evidence as to the nature of the relationship between [NAME] and [NAME] [NAME] at the time of the death of [NAME] is not entirely satisfactory. While there is evidence that [NAME] from time to time expressed dissatisfaction with his relationship, there is no reason to doubt the evidence that, on the day before he died, [NAME] and [NAME] were together. It may be that he was "couch surfing" from time to time. There was no evidence as to the nature and extent of the accommodation where [NAME] [NAME] and the children were living with her parents. Whether that had any bearing on statements made by [NAME] that he was "couch surfing" is unclear.

10. It is clear, however, that [NAME] had a close relationship with all of his children, whose mother is [NAME] [NAME]. There is no doubt that he wished to remain in Kempsey where his children resided. Whether that is the only reason for his continued residence in Kempsey is by no means without doubt. The evidence is that a house in Kempsey in which he had resided with [NAME] [NAME] and their children was being renovated and the inference is clearly open, and should be drawn, that, when the renovations were complete, he and [NAME] [NAME], together with their children, would move back into that residence.

11. In all of the circumstances, I consider that [NAME] and [NAME] [NAME] continued to be in a de [NAME] relationship within the meaning of the Interpretation Act. It follows that [NAME] [NAME] is the spouse of [NAME] for the purposes of the Succession Act. To the extent that there is any estate of [NAME], [NAME] [NAME] would be entitled to it on his intestacy. She would have an entitlement to a grant of letters of administration in respect of his estate.

Aboriginal Cultural Matters and Concerns 1. [NAME] [NAME] places considerable store on [NAME] spiritual and cultural matters. [NAME] [NAME], however, disputed the significance of the spiritual and cultural matters relied on heavily by [NAME]. 2. [NAME] was a member of the [NAME] people, whose country is in the New England District, including Armidale. The evidence indicates that the culture, traditions and spiritual beliefs of the [NAME] people would dictate that [NAME] should be buried in [NAME] country. The [NAME] and [NAME] families, as well as the [NAME] family, have ancestral ties to the New England area. The evidence indicates that, according to [NAME] culture, the family, relatives and friends of [NAME] were to engage in "sorry business". It appears that "sorry business" required that various ceremonies be performed on the body of a [NAME] and that, traditionally, there were two stages to a burial. The first was a smoking ceremony over the body. Once the flesh had gone from the body, the second stage was for the body to be placed in a tree and another ceremony performed. The significance of the first part was to allow the physical body to be in country and to go back to mother Earth. The second part is to enable the spirit of [NAME] to go to its final resting place. 3. [NAME] [NAME] was distressed by the denial of access to the body of [NAME] before 5 May 2019, when she and her family were finally given the opportunity to see the body of [NAME] at [COMPANY]. She gave oral evidence that, when her family finally had access to the body, [NAME] "had to be prepared culturally", something done by the "boys in the family" because women are not part of that ceremony. In her affidavit, [NAME] [NAME] said that a men's ceremony was held, using oils and ochres and a medicine bag. She was relieved that "the boys" finally had the opportunity to perform the ceremony, saying that it was critical for the spirit of a [NAME] for the ceremony to be done as soon as the person dies. She found it very distressing that the body of [NAME] had not been buried quickly since that was not in accord with [NAME] culture. She said that [NAME]'s family were going to have to perform another ceremony once [NAME]'s body was back "on country". No particulars of such a ceremony were in evidence.

4. On the other hand, there was also evidence that modern Aboriginal burial practices have been adapted to the law of Australia. Thus, the smoking ceremony is conducted on the coffin rather than the body itself. The body is then buried in a cemetery, rather than at a traditional burial site, and the body is no longer placed into a tree.

5. I am satisfied from the evidence that, on the whole, [NAME] people believe that it is important for an [NAME] person to be buried in [NAME] country. It appears that the [NAME] culture, as well as most other Aboriginal cultures in Australia, adopts the belief that the spirit of a [NAME] will not rest until the body is buried in traditional country of [NAME].

Accordingly, repatriation of Aboriginal remains to the traditional country of [NAME] is a regular practice. 6. [NAME] [NAME] contends, however, that, while "burial on country" may be an ideal, preference should be given to burial near family members because of the importance for the family of maintaining contact with a [NAME] by visiting the grave of [NAME]. In that regard, [NAME] [NAME] points out that, while the children of [NAME] continue to reside with their mother in Kempsey, only one member of the immediate family of [NAME], [NAME], lives in or around Armidale. The oldest sibling of [NAME], [NAME], died before [NAME] was born and is buried at Armidale. The oldest surviving sibling of [NAME], [NAME], no longer lives in Armidale. [NAME] [NAME] herself lives in Heddon Greta, near Newcastle. A younger brother, [NAME], is presently an inmate at the Cessnock Correctional Complex. It is unclear where he would otherwise reside. [NAME]'s younger sister, [NAME] [NAME], lives in Townsville. The youngest sibling, [NAME], apparently lives away from Armidale. 7. [NAME] [NAME] also draws attention to the fact that both [NAME] and [NAME] [NAME] were prepared to accept a compromise whereby the remains of [NAME] would be cremated and half of his ashes would be interred in Armidale and half in Kempsey. It is unclear how such an arrangement would fit in with [NAME] culture and beliefs. [NAME] [NAME] gave oral evidence that she did not know whether cremation would be considered "traditional [NAME] practice", whereas [NAME] gave oral evidence that cremating the body was an accepted [NAME] practice. [NAME] gave oral evidence suggesting [NAME] had discussed cremation with him, but that a final decision was never made as to [NAME]'s desire to be, or not to be, cremated. There is no real evidence one way or the other that [NAME] was opposed to cremation.

8. The evidence concerning [NAME] [NAME] position on a possible cremation of [NAME] is in dispute. [NAME] asserted in his affidavit that he proposed cremation of [NAME] to [NAME] [NAME], but that she responded that she is a Seventh Day Adventist and "we don't do that stuff". However, in her affidavit, [NAME] said on the contrary "my mother is Catholic and so am I". That said, [NAME] affidavit does not go further as to address specifically [NAME] [NAME] stance on cremation.

9. The evidence makes clear that it is by no means universal for the remains of [NAME] people to be returned to [NAME] country. Thus, there were several examples in the evidence of [NAME] people who died away from [NAME] country and whose remains were not returned to [NAME] country. Nevertheless, it is clear that many of the forebears and other relatives of [NAME] have been buried in and around Armidale and I accept that there is a strong spiritual and cultural consideration that would, in the absence of other considerations, require the burial of [NAME] in [NAME] country.

The Wishes and Sensitivities of Close Relatives 1. Apart from [NAME] [NAME] and the children of [NAME], the living close relatives of [NAME] gave evidence that they supported the return of [NAME]'s body to [NAME] country. Clearly, [NAME] [NAME], the [NAME], is committed to that course because of her belief in the cultural importance of returning a member of the [NAME] people to country. [NAME], [NAME]'s father, [NAME] and [NAME], [NAME]'s brothers, and [NAME] [NAME], [NAME]'s sister, all support the return of his remains to Armidale. [NAME], a cousin of [NAME], [NAME], [NAME]'s uncle, [NAME[NAME], [NAME]'s aunt and wife of [NAME], all of whom were close to [NAME] while he was growing up, support the return of his remains to Armidale. There is also significant evidence from elders in the [NAME] community in support of a return. [NAME] [NAME] and [NAME], all of whom are [NAME] elders, gave evidence in support of the return of the remains of [NAME] to Armidale. In addition, letters were received from elders [NAME] and [NAME], declaring their support for [NAME] [NAME] application in these proceedings.

2. On the other hand, it is clear that [NAME] [NAME], the de [NAME] souse of [NAME], wishes to have the remains of [NAME] buried in Kempsey. Evidence was given by two of [NAME]'s children, [NAME], who is 17 years old and [NAME] [NAME], who is 16 years old. Both gave evidence that they did not identify with a particular Aboriginal tribe and had never had serious discussions with their parents concerning [NAME] culture.

3. The only time when [NAME] engaged in cultural activities with her father was when the family went camping at Georges Creek. She said that they did not engage in cultural activities every time but that sometimes, when they were in the bush, [NAME] would teach her and the other children about where women were not allowed to go and where men were not allowed to go. He showed them how to make spears and how to use rocks. [NAME] wants her father to be buried in Kempsey where his family members are. She said that if he was buried in Kempsey she would visit his grave all the time and wanted to be able to see him every day. She said that if [NAME] was buried in Armidale, she would still go to see him but would not be able to see him very often since Armidale is a three hour drive from Kempsey and they only go to Armidale every second year or so or if something happens in the family, such as a death. 4. [NAME] did not ever tell [NAME] that he was an [NAME] man. He simply said that he was from Armidale. [NAME] said that her father occasionally made remarks such as "don't throw stones in the fire" or "if you walk over a broom it's bad luck" or "if you jump in a window you have to jump back out again". However, she said, he did not talk to her or teach her about Aboriginal culture.

5. Shortly after [NAME] died, [NAME] uncle [NAME], her aunt [NAME] and her cousin [NAME], with whom she is very close, went to Kempsey. [NAME] wanted to stay with her cousin after the funeral, and so went with them to Newcastle to see [NAME]'s body. They returned to Armidale where [NAME] stayed for two or three weeks with her uncle, aunt and cousin. [NAME] said that, while she was in Armidale, she thought about whether [NAME] should be taken to Armidale for burial, and raised with her mother, [NAME], the question of where he should be buried. She asked her mother whether [NAME] should go back to Armidale and whether her mother would go back to her own country.

6. After she returned to Kempsey, [NAME] and [NAME] discussed what they wanted for [NAME]. [NAME] said that she wanted to be able to go and see her father every day and did not want to be travelling every few days. She therefore wanted [NAME] to be buried in Kempsey. While she would go to see him in Armidale, that would only happen occasionally, whereas the cemetery in Kempsey is only 10 minutes' drive from her home and is not far from her school. 7. [NAME] said that, after the death of [NAME], [NAME] [NAME] told him that she had changed her mind and wanted [NAME] to be buried in Kempsey with her, where she could visit his grave every day. He said that, at that time, [NAME] said that her father should be buried in Armidale "back on country" but that her mother wanted him in Kempsey. 8. [NAME]'s younger children are aged 13, 10 and 9 years. There is no reason to conclude that they would not be of a similar mind to their older sisters and mother.

[NAME]'s Wishes 1. The body of [NAME]'s step sister, [NAME], was returned from Queensland for burial in Armidale. [NAME]'s paternal grandparents, to whom he was particularly close, are buried in Armidale. [NAME] was an eighth generation [NAME] man and his forebears are all buried in [NAME] country. There is considerable evidence that, from time to time, [NAME] expressed the wish that he be buried in Armidale. As indicated above, although he has not resided in Armidale for many years, he has long family associations with the Armidale area and continued to visit Armidale regularly before his death. [NAME], [NAME]'s oldest sibling, who died before [NAME] was born, is buried in Armidale and [NAME] was accustomed to visit his grave several times a year. [NAME] expressed the wish on several occasions to be buried close to his brother.

2. The evidence indicates that [NAME] repeatedly expressed the wish that he be buried in [NAME] country. [NAME], [NAME]'s father, said that he spoke to [NAME] on a number of occasions about his wishes and [NAME] always told him that if ever anything happened to him he wanted "to go home to Armidale, back to [NAME] country". [NAME] said that, at the funeral of [NAME], whom he reared as his daughter, [NAME] said in front of the family, who were sitting at the graveside after the funeral, that he wanted to be buried on [NAME] land and he wanted to be taken "home to country" when he died. [NAME] said that all members of the family made similar statements at that time. 3. [NAME] also referred to his mother's funeral in Armidale at the end of March 2019. Because he was only able to stand for a couple of minutes at a time, he asked [NAME] to stay with him at the car and to help him. He said that, on that occasion, [NAME] said to him that, if anything happened to him, that was where he "had to be buried". He said that he had to be buried in Armidale "with the family at the cemetery". He said that he wanted to be "taken home to country" when he died.

4. Several other witnesses corroborated the evidence given by [NAME]. In particular, [NAME] [NAME] gave evidence that such comments were made by [NAME] on the occasions just mentioned. [NAME] also gave evidence that tended to corroborate the evidence given by [NAME]. However, his evidence was shown to be unreliable in several respects. For example, [NAME] made several assertions by in his oral evidence as to conversations he had with [NAME] regarding [NAME]'s wishes to be buried in Armidale, that, curiously, were not mentioned in his affidavit.

5. On the other hand, [NAME] [NAME] said that she was present at the funeral of [NAME]'s grandmother, [NAME], and that she and [NAME] did not leave each other's side. She said that she did not hear any such statement by [NAME]. Having considered the foregoing evidence, and the conflicting accounts and reliability of the witnesses, I do not consider that there is any reason to doubt that [NAME] made comments such as those described above.

6. Nevertheless, [NAME] [NAME] attaches significance to the circumstances in which the statements were alleged to have been made by [NAME], namely, at the time of the death and funeral of other members of the family and in the presence of siblings and his mother. She contends that such expressions may be treated as expressions of filial duty at times of grief rather than a considered view on the part of [NAME]. Thus, [NAME] did not make any such statements in any other context or to his children. Further, the statements were not made by [NAME] at a time when his own death in the near future was in immediate contemplation. In that regard, the circumstances in which the statements were made are significant. That is to say, they were made at a time of mourning for his step sister and grandmother and were entirely hypothetical circumstances in relation to the possible death of [NAME] himself. It is by no means clear that the statements should be treated as considered statements in contemplation of his own actual death. 7. [NAME] had lived in Kempsey for only four of his 36 years. [NAME] and [NAME] moved many times before they moved to Kempsey. Further, there is no guarantee that [NAME] [NAME] and her children, some of whom are almost adult, will continue to live in Kempsey or that they have any wish to be buried in Kempsey. Thus, if [NAME] were to be buried at Kempsey, there would be no certainty that his children would spend the rest of their lives in close proximity to the site of his burial, since there is no evidence that any of them have any close cultural or spiritual connection with the Kempsey area. On the other hand, whether or not they are presently conscious of their cultural heritage with [NAME] country, that is something that they may come to know in the future. In a sense, any connection that [NAME] has with Kempsey is no more than a passing one.

Conclusion 1. There is very seldom a correct answer for a question such as that raised by the present dispute. I have no doubt that the feelings expressed by both [NAME] [NAME] and the witnesses who gave evidence on her behalf, on the one hand, and [NAME] [NAME] and the witnesses who gave evidence on her behalf, on the other, are genuine and heartfelt. It is distressing not only for the parties to such a dispute but for any decision-maker who is required to resolve the dispute.

2. There are compelling reasons, as outlined above, for the body of [NAME] to be returned to [NAME] country for interment. If I had concluded that the de [NAME] relationship between [NAME] and [NAME] [NAME] had come to an end, I would have concluded that it was appropriate for his remains to be returned to [NAME] country.

3. However, I am not persuaded that the relationship between [NAME] and [NAME] [NAME] had broken down to such an extent that [NAME] [NAME] could no longer be characterised as his de [NAME] spouse. In those circumstances, I consider that her wishes and those of her children should be the determining factor in present circumstances, rather than the cultural considerations that might otherwise have led to a decision that the body of [NAME] should be entrusted to his mother rather than to his de [NAME] spouse. It follows that [NAME] [NAME] summons should be dismissed. Orders should be made in terms of the prayers for relief contained in [NAME] [NAME] cross-claim.

4. The parties agreed that, irrespective of the outcome, there should be no order as to the costs of the proceedings.

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Endnotes 1. See South Australia v Smith (2014) 119 SASR 247.

2. See Sharp v Lush (1879) 10 Ch Div 468 at 472.

3. See South Australia v Smith (2014) 119 SASR 247. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2019