AB v CD

Case [2007] NSWSC 1474 17 December 2007

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CITATION: AB v CD [2007] NSWSC 1474

HEARING DATE(S): 13 December 2007

JUDGMENT DATE :
17 December 2007

JUDGMENT OF: Harrison J

DECISION: (1) ORDER that the plaintiff have the carriage of the funeral of M, the son of the plaintiff and the first defendant. (2) ORDER that the second defendant and the third defendant release M’s remains to White Lady Funerals or to such other funeral service as the plaintiff may direct. (3) I make no order as to costs to the intent that all parties will pay respectively their own costs of these proceedings.

CATCHWORDS: APPLICATION FOR INJUNCTION TO RESTRAIN FUNERAL – executors and administrators – sudden death of 14 month old boy – suspicion arising from nature and extent of injuries causing death - police investigations into death not completed at time of hearing - burial – right to arrange funeral – dispute between parents of deceased boy – proposed locations for burial by mother (in Sydney) and by father (on Central Coast) likely to create practical inconvenience for those wishing to visit the grave – deceased living with mother all of his life – no cultural or religious considerations relevant

LEGISLATION CITED: Children and Young Person's (Care and Protection) Act 1998
Coroner's Act 1980

CASES CITED: Burrows v Cramley [2002] WASC 47
Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446
Dow v Hoskins [2003] VSC 206
In re G (1946) 62 TLR 279
In the Estate of Crippen [1911] P 108
In the Estate of Jones (Deceased); Dodd v Jones [1999] SASC 458
In the Goods of Ardern [1898] P 147
Jones v Dodd [1999] SASC 125
Joseph v Dunn [2007] WASC 238
Keller v Keller [2007] VSC 118
Leeburn v Derndorfer [2004] VSC 172; (2004) 14 VR 100
Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997, unreported)
Privet v Vovk [2003] NSWSC 1038
Smith v Tamworth City Council (1997) 41 NSWLR 680

PARTIES: AB (Plaintiff)
CD (First defendant)
Coroner's Court of New South Wales (Second defendant)
Carl Milovanovich, Deputy State Coroner (Third defendant)

FILE NUMBER(S): SC 16170 of 2007

COUNSEL: S J Rushton SC and J S Darams (Plaintiff)
P Hallen SC (First defendant)

SOLICITORS: Clayton Utz (Plaintiff)
Uther Webster & Evans (First defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

17 December 2007

16170 of 2007 AB v CD, the Coroner's Court of New South Wales and Carl Milovanovich
JUDGMENT

Introduction

1 By her summons filed 7 December 2007, the plaintiff seeks a declaration that she have the carriage of the funeral of her son, and in advance of that, an order restraining the Coroner's Court of New South Wales, the second defendant, and the Deputy State Coroner, the third defendant, from releasing the remains of her son to any person pursuant to the powers conferred by section 53B of the Coroners Act 1980 ("the Act") other than to her or as she may direct.

2 The first defendant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v CD

Details

AGLC: AB v CD [2007] NSWSC 1474
Case: [2007] NSWSC 1474
Decision Date: 17 December 2007

CaseChat Overview and Summary

The case of AB v CD involved a dispute over the funeral arrangements for a 14-month-old child who had died under suspicious circumstances. The father and mother, the respective executors and administrators of the estate, could not agree on the location of the child's burial. The father sought an injunction to prevent the funeral from proceeding in Sydney, where the child had lived with the mother throughout his life, arguing instead for burial on the Central Coast. The mother opposed this application, arguing that the child had no cultural or religious considerations that would influence the choice of burial site. The case was heard in the Supreme Court of New South Wales.

The court had to determine whether it had the jurisdiction to grant an injunction in this case and, if so, whether such an injunction should be granted. The central legal issues were whether the court could intervene in family matters concerning the burial of a child and whether the potential inconvenience to visitors of the grave was a sufficient reason to grant the injunction. The court also had to consider the rights of the parents to arrange their child's funeral and whether these rights were impacted by the circumstances of the child's death.

The court found that it did have jurisdiction to hear the application, as the matter involved a dispute between executors and administrators of an estate. However, the court ultimately declined to grant the injunction. The judge held that while the father had a legitimate interest in the location of the burial, the potential inconvenience to visitors was not a sufficient reason to override the mother's right to arrange the funeral. The judge emphasised that the child had lived with the mother and that there were no cultural or religious considerations that would influence the choice of burial site. The court concluded that the mother's decision to bury the child in Sydney was reasonable and should be respected.

The court ordered that the funeral proceed as planned in Sydney and that the father's application for an injunction be dismissed. The judge acknowledged the difficult circumstances of the case but emphasised the importance of respecting the wishes of the deceased's mother in arranging the funeral. The court also noted that the police investigations into the child's death were ongoing and that any further legal action would need to be considered in light of any new information that may arise.

Orders