AB v CD

[2007] NSWSC 1474

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 the child's father. He opposed the orders sought by the plaintiff and by his cross-claim sought a declaration that he have the carriage of the funeral of the child. The second and third defendants filed a notice of appearance and submitted to any order that the court might make, save as to costs.

3 With the consent of the plaintiff and the first defendant, I indicated that I would make orders at the hearing preserving their anonymity and that of their child. Accordingly, in this judgment the plaintiff will be referred to as either "AB” or "the mother" and the first defendant will be referred to as either "CD" or "the father", or in cognate terms. The deceased child will be referred to as either "M" or "the child". Relevant dates, times, places and the identities of others involved in the circumstances that give rise to these proceedings will also be referred to in a way that conceals the identity of M and his parents.

Background

4 M was born in September 2006 at Gosford District Hospital and died in Westmead Children's Hospital in November 2007 at the age of 14 months. His mother was born in October 1988 and is now 19 years of age and his father was born in October 1989 and is now 18 years of age.

5 The mother became pregnant with M in December 2005 after a brief sexual relationship with the father. There is a dispute in these proceedings as to the nature and extent of the relationship between the mother and the father thereafter to which it will be necessary in due course in some detail to refer. There seems to be no dispute, however, that the mother and the father had never been in an ongoing relationship of any type.

6 At the time of conception, the mother lived with her own mother and her siblings at Toukley north of Sydney. Their home was situated "across the road" from the father's home. In about April 2007 the mother moved to Sydney where she began a relationship with a man who became and is now her fiancé. In August 2007 the mother moved into premises rented by her fiancé in Blacktown, a suburb of Sydney. Since the death of her son, the mother has been living with her fiancé's sister at Quaker's Hill, another suburb of Sydney, which is situated about five minutes from Blacktown.

7 According to her evidence, the mother took her son to have his 12 month immunisations early in November 2007. The following day he became very ill, started vomiting and lost consciousness. The mother called an ambulance that took the boy to Blacktown Hospital. He was subsequently transferred to Westmead Children's Hospital where he spent three days in intensive care and on life-support before he died.

8 Because of the circumstances of the child's death, the third defendant assumed jurisdiction to inquire into it. The child's body was delivered to the Coroner and a post-mortem examination conducted. A post-mortem report has been issued and a police investigation into the manner and cause of the child's death has been commenced.

9 The mother and father have each made separate arrangements for the child's burial. The mother wishes to have the child buried at a cemetery in Riverstone in Sydney's outer-west, whereas the father wishes to have the child buried at Palmdale near Gosford on the Central Coast. Each is strenuously opposed to the other's proposal for the child's burial. By reason of this dispute it has not yet been possible for the child's funeral to take place. Attempts to resolve the dispute, including mediation by the Coroner, have failed.

10 Although there are genuine and fundamental reasons why the mother and the father are unable to agree upon a location for the child's burial, the dispute is effectively limited to one of geography. For example, the evidence does not reveal the existence of differences based on ethnicity, culture, religion, spirituality, or other factors of a less practical or tangible kind. However, in describing the dispute in that way, I would not wish to be taken to be discounting the importance of the views held by each parent or the genuineness with which they are held.

11 The mother provided the following reasons for not wanting her son to be buried where the father wishes him to be buried in par [26] of her affidavit sworn 5 December 2007:

"26. I object to having my son buried on the Central Coast where I will not be able to easily visit his grave. My fiancé and I are to be married next year and will stay in Sydney after our marriage. From Quaker's Hill, I can get to Riverstone cemetery by car since I can get a lift with my future sister-in-law who visits regularly to tend the graves of other family members. The journey takes about 30 minutes. If [my son] is buried on the Central Coast, I do not have a car and believe it would take me about 3 hours to get there by public transport. In addition, if my son was to [sic] buried at the lawn cemetery I would not be able to put up a headstone. I believe that if [sic] [my son] will be forgotten if he is buried on the Central Coast and I will not be able to visit his grave. This thought causes me great sadness."

12 The father provided the following reasons for wanting to have his son buried at Palmdale in pars [27] to [34] inclusive of his affidavit sworn 10 December 2007:

"27. I have four brothers and sisters, namely, B aged 16 years of age, R aged 14 years of age, K aged 12 years of age, B aged 11 years of age, and mother who all live on the Central Coast as I do. While [my son] was living in Toukley they spent time with him and I believe are just as devastated by his death as I am. They have indicated to me and I verily believe that they will wish to attend [my son's] grave on a regular basis. The only way that they would be able to attend the grave would be by public transport, as my mother and siblings do not drive due to their age. Alternatively, they may get a lift with [the plaintiff’s mother].

28. [The plaintiff’s] mother, father, brothers and sisters all live on the Central Coast. They lived with [my son] for the first 7 months of his life and continued to see him until approximately one month before he died. They have all indicated to me that they will regularly visit the cemetery to visit [his] grave, I believe that they will do so.

29. [The plaintiff] and I both had friends some mutual friends, who live on the Central Coast and my friends have indicated there [sic] willingness to come with me to the grave to provide me support and comfort. I am sure that [the plaintiff's] Central Coast friends would do the same if she wished them to.

30. I understand from the mediation that I attend [sic] at the Coroner’s Court with [the plaintiff’s mother], my mother [the plaintiff] and [the plaintiff’s fiancé's] mother that [the plaintiff] wants [my son] buried in Blacktown or Windsor. It will be very hard for my family and I to visit [his] grave if he is buried in Blacktown or Windsor.

31. I do not have a car, neither does my mother and if [my son] was buried at Windsor or Blacktown I would have to rely on friends or [the plaintiff’s mother] and [her husband] to take me there. If [my son] was buried at Gosford I could attend by public transport.

32. I understand that the only connection that [the plaintiff] has to Blacktown and Windsor is [her fiancé] and his family and the fact that his relatives are buried at one or both of these cemeteries. I would not like my son to be buried in any one that has a connection to [the plaintiff’s fiancé] and his family.

33. Although Gosford is not exactly half way between where I live and where [the plaintiff] lives, I expect that it would take her about one hour to drive from Quaker's Hill to Palmdale, which is where the cemetery is, near Gosford.

34. I would like to have [my son] buried close to where I live and near his extended family with which he spent so much time and loved him while he was alive."

13 In addition, the plaintiff's mother, who supports the father's application, provided the following reasons in support of him in pars [32] and [33] of her affidavit sworn 10 December 2007:

"32. [The child's] extended family is all on the Central Coast, including [my husband], his five aunties and uncles on [his mother's] side of the family and his five aunties and uncles on [his father's] side of the family. [The father] and his mother are also on the Central Coast. [The child’s] only family members in Sydney [a]re [the plaintiff] and the auntie and uncle that she has no contact with.

33. [The child’s father] and I would like to bury [the child] in a nice place close to his family and where he spent most of his life. We have been to Palmdale Cemetery at Gosford and picked out a nice area in the baby section. Gosford is approximately half way between Toukley and Blacktown."

14 Despite the apparent simplicity of the differences between the mother and father, as revealed by this evidence, the matter is, unfortunately, significantly more complicated. This is revealed by a consideration of the matters upon which the mother and father respectively relied.

The mother's case

15 Following the child's birth, he was given the family name of his mother. The father's name was not recorded upon the birth certificate. The plaintiff said that she sought to do the "right thing". However, according to the mother, the father informed her that he refused to sign the Application for Registration of the child's birth and was more than content for the mother to assume sole responsibility for the child.

16 After the mother informed the father that she was pregnant, she had no further contact with him during her pregnancy despite the fact that she gave him her telephone number. The father's sister informed the mother that he wanted "nothing further to do" with her. The father did not involve himself in the birth of the child nor did he attend the hospital following the birth.

17 Apart from three very brief incidents with the father, which appear to have been unplanned, he did not have any contact with the child. The last contact that the father had with the child was when it was approximately three months old. The father refused to provide any financial assistance.

18 In April 2007 the mother came to Sydney from the Central Coast for a holiday. During that time an argument occurred between her and her mother concerning a payment that the mother had received from the Victims Compensation Tribunal in the sum of $10,000. The mother alleged that her mother had stolen the money and as a consequence she decided to stay in Sydney permanently with her son. Around this time the mother formed a relationship with the man who is now her fiancé. She moved into his house in Blacktown with her son in August 2007.

19 Three days after his admission to hospital, the plaintiff's mother came to visit the child with the father. There was no interaction between the mother and father. The plaintiff has an extremely difficult relationship with her mother. It does not, in my opinion, advance the present enquiry to repeat in detail the circumstances, which have caused that to occur. It is sufficient for present purposes to note that the plaintiff's mother's support for the father in these difficult and emotional proceedings is an emphatic indication of the extent of the disharmony that exists between the plaintiff and her mother.

20 The following day medical staff at Westmead Children's Hospital turned off the child's life support system and he died. Following his death, the Coroner took possession of the child's remains pursuant to s 24 of the Act. An autopsy was performed. It is presently unknown whether or not Coroner intends to hold a formal inquest. The Coroner has indicated, however, that there is no legal impediment to the release of the child's remains to the next of kin.

The father's case

21 The father disputed the proposition that he had little to do with the child. The father asserted that he was involved with his son. The father moved from Buff Point on the Central Coast to Toukley when the child was about three months old. He would see him at the plaintiff's home and at other places. He discussed with the plaintiff's mother having overnight access to the child but she told him that that should be delayed until the child was older and knew his father better. The father left gifts for the child at Christmas, Easter and on his birthday.

22 The defendant was prepared to sign documents relating to his son's birth and in fact did so. He offered financial support to the mother, which she refused because she was living with her mother and told the father that they were "okay for now". The child died whilst in the care and custody of its mother. The day following his admission to Westmead Children's Hospital and two days before his death, an order was sought by a delegate of the Director General of the Department of Community Services under s 44 of the Children and Young Persons (Care and Protection) Act 1998 in respect of the child. The stated reasons for the assumption of care and protection of the child given in support of the application for that order were as follows:

"1. [M] has sustained severe and possibly life threatening injuries as a result of an unexplained injury to the head.

2. Initial medical reports . . . states that 'The CT scan indicates [M] has a new sub dural bleed but not big enough to cause any increase in pressure. There are suspicions of previous bleeds in the frontal lobe and high-density on the occipital lobe and generalised widened [sic] of the sutures (Dr C said this is one of the signs of non accidental injury). There is a depression of the left suture and swelling on the left inter orbital region below the eye. The doctor said these injuries suggest previous chronic injuries to head including a new unknown injury that has caused the new bleed. [M] also has bruising on the right eye that is a 'brownish colour like it is starting to heal' around the eye lid. The doctor said he is still waiting for the formal report, but preliminary report from the radiologist is that 'these injuries are not accidental'. Dr C is attempting to keep [M] stable, [M] is ventilated and his pupils are fixed and not reacting to any stimuli. This raises the possibility that [M] the subject of multiple events of harm or abuse.

3. Prior to being admitted to hospital [M] was alleged to be in the primary care of her [sic] mother . . . [and her de facto partner].

4. [M] is 14 months old and totally dependent on adult care and protection."

23 In a Report of Death to Coroner, a narrative of the circumstances under which the death took place is set out in the following relevant terms:

"The deceased [M] lived with his biological mother and her de facto at the above address. The biological father ... has not been involved with the deceased since birth. [In early] November 2007 the deceased's GP . . . administered an immunisation booster to the deceased. During the evening on [the same day] it is alleged by the mother and her de facto that the deceased . . . had a negative reaction to the injection.

From the investigation being conducted currently by Blacktown detectives, the deceased has lost consciousness for a period of five to ten minutes during the alleged reaction. Both the mother and her de facto have commenced CPR for a period of time.

[At 11.57pm on the same day] an ambulance attended [the premises]. The deceased was in the lounge room at this time. The deceased was found to be not breathing and unconscious. CPR was continued by ambulance personnel until arrival at Blacktown Hospital where the deceased was ventilated. The deceased's pupils were fixed and dilated.

The deceased was admitted to Blacktown Hospital. The deceased had both external and internal injuries which Police suspect are non-accidental. In the early hours of [the following day], the deceased [M] was transferred from Blacktown to Westmead Children's Hospital. The deceased [sic] initial prognosis was 'poor to grim'.

The deceased was observed as having a bruising to his right eye and lacerations to his upper lip. A urine and drug screen conducted at Blacktown Hospital was returned with a negative result. The preliminary report of a CT scan showed subdural haemorrhage and evidence of a[n] oedema.

Furthermore, the CT scan showed evidence of a previous brain injury which had healed.

Clinical examinations on the evening of the [same day] were consistent with brain death. Two further examinations were performed by different doctors on [the following day], which again indicated brain death.

At 5.22pm . . . the deceased [sic] condition met clinical brain death and life was pronounced extinct by [doctors] at Westmead Children's Hospital.

At 8.58pm on the [following day] in the presence of both [the mother] and [the father] the deceased [sic] life support was turned off. A short time later the deceased [sic] heart ceased functioning.

A short time later, Police spoke with [the mother]. An identification statement was completed and signed by [her] . . .

There are suspicious circumstances in relation to the cause of death of the deceased. These suspicions are being currently investigated by . . . Blacktown Detectives. Furthermore, Homicide and JIRT investigators are also involved in this ongoing investigation."

24 On the day prior to the child's death, the caseworker responsible for the JIRT investigation swore an affidavit in support of the application for an emergency care and protection order. The following paragraphs of that affidavit should be noted:

"3. [AB] is [M's] mother (the 'Mother'). The Mother has been [M's] primary carer all his life until the Department assumed [M's] care.

4. [CD] is [M's] father (the 'Father'). The Mother has told me that the Father has had very little contact with [M] all his life.

5. [The plaintiff's fiancé] is the Mother's current partner (the 'Mother's partner'). The Mother has told me that she has been with her current partner since April 2007 and that they have live [sic] together."


*****


"8. [A report received by the Department] states that when the paramedics and ambulance arrived at the home [M] was observed to have a fat lip and blood around his mouth and under his nose prior to intubation. Ambulance and Paramedics also observed several bruises on [M’s] body. The location of the bruises were [sic] unknown as they were busy attending to the child. The report states that the child was brought into the hospital with cardiac arrest. The reporter was unaware of any history of heart problems with the child.

9. The mother's partner reported to hospital staff that the child was immunised [the day before] and that he had a funny turn. The mother's partner also reported that the child had a respiratory arrest. When the mother's partner was asked if [M] was brought to hospital he replied that [M] came to on his own and that he was okay.

10. The report states that [M] was then transported to Westmead Children's Hospital and that [M] will be accompanied by a qualified Doctor and Nurse. Caller states that Westmead Children's Hospital have been notified and that have a bed waiting in the Intensive Care Unit."

*****


"12. Detective Sergeant [KH] informed me that the mother's partner is currently in a Corrective Services facility due to a breach of parole for an unrelated offence. Bail has been refused until 14 November 2007.

13 . . .[M] is currently on cardiovascular support and that [he] presented to hospital with a black eye, bruising to the body, abrasions and lacerations to the mouth. CT scans showed subdural haematoma, fresh bleeding on the brain, cerebral oedema; swelling of the brain. Swelling to the left hand side of the skull. Fixed dilated un-reactive pupils, retinal haemorrhages. Dr S stated that the prognosis for [M] is that he is not likely to survive. If [M] has another Cardiac Arrest the doctor's recommendation is not to resuscitate. Dr S stated that no reasonable explanation has been given as to how [M] sustained the injuries."

25 The Report of Death of a Patient to the Coroner dated 10 November 2007 reveals that the author's opinion "as to cause of death" was "[h]ypoxic ischaemic injury to brain with associated acute sub dural haemorrhage with acute/sub-acute infarct".

The legislation

26 Section 53B of the Act, so far as is relevant, provides as follows:

" 53B Order authorising the disposal of human remains

(1) A coroner may, by order in writing, authorise the disposal of human remains.

(2) The order may be made by a coroner who:


(a) is holding, has held or is intending to hold an inquest in respect of the death under this Act, or

(b) has dispensed with the holding of an inquest in respect of the death under this Act."

27 There was no dispute between the parties that this Court has jurisdiction in the present case.

Entitlement to administration

28 The relevant principles were set out in Leeburn v Derndorfer [2004] VSC 172; (2004) 14 VR 100 at [11] as follows:

"[11] In general terms, the law's solution for disputes as to the manner and place of disposition of a dead body is to select a person who is to have the right and responsibility for the disposition and then to leave the choice to that person: Brown v Tullock (1992) 7 BPR 15,101 at 15,102, per Waddell CJ in Eq. But even this process of selection reflects an uncharacteristic awkwardness in the law's response: (In Warner v Levitt (1994) 7 BPR 15,110 at 15,113, Brownie J spoke of the artificiality of carrying out an investigation as to who is entitled to administration in a case where there is no expectation that this will occur). The cases establish the general priority for selection for this office, in which the executor named in the will stands first, followed by those in order of entitlement to a grant of administration: Smith v Tamworth City Council (1997) 41 NSWLR 680 at 691, per Young J; Meier v Bell (unreported, 3 March 1997, Sup Ct of Vic, Ashley J) at p 6. But even this order of entitlement has been varied to suit the exigency of the particular case and to meet the practicalities of the situation. See, for example, Jones v Dodd (1999) 73 SASR 328 at 336 [46]-[51] and Calma v Sesar (1992) 2 NTLR 37 at 41 per Martin J. It may happen, too, that a person's right to administration is itself a matter of some difficulty. See, for example, Privet v Vovk [2003] NSWSC 1038, where the claim of the applicant depended upon proof of his parent's valid marriage."

29 It is not in dispute that, prima facie, each of the parents has an equal entitlement to the administration of M's estate.

The legal principles

30 Whilst it has been said that decisions in cases of this kind appear "to be based upon practicalities as much as upon principle" (see Leeburn v Derndorfer (supra) at [10]), there are some legal principles regarding entitlement to a corpse that are applicable. These have been set out in Burrows v Cramley [2002] WASC 47:

" The Law

[15] There is no property in a corpse, and a person cannot by will dispose of his or her dead body. Williams v Williams (1882) 20 Ch D 659.

[16] After the death of a person, his or her executors have a right to the custody and possession of the body (although they have no property in it) until it is properly buried. Doodeward v Spence (1908) 6 CLR 406.

[17] In Boothman; Ex parte Trigg , unreported; SCt of WA; Library No 990031; 27 January 1999, Owen J held that five propositions enunciated by Young J in Smith v Tamworth City Council ( supra ) can be taken as representing the law in this State, that is to say:


'1. 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.

2. 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.

3. Where no executor is named the person with the highest rank (right) to take out administration will have the same position (privilege) as the executor in proposition 1.

4. The right of the surviving spouse or de facto will be preferred to the right of children.

5. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.'


[18] See also Manktelow v The Public Trustee [2001] WASC 290.

[19] Calma v Sesar (1992) 106 FLR 446 is a case in which, as here, the mother and father were in dispute about where their child should be buried. Martin J said that the Court was not to be assisted by an examination of the care and attention given by each of the parents to the deceased while he was alive. See p 449.

[20] He then said at 452:

'The right to possession of a dead body runs with the duty to dispose of it. Each parent in this case had that duty, or at least accepted it, and attempted to carry it into effect, thus claiming that right. Their respective legal claims were subsumed by deep emotion emanating from, and affecting not only them, but other members of the deceased's extended family as well. Questions relating to cultural values and customs interceded. To state that the Court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except in so far as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values.'


[21] Martin J concluded that the Court was required to resolve the argument in a 'practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency'.

[22] In Meier v Bel , unreported; SCt of Vic; Library No BC9700457; 3 March 1997, Ashley J noted that in the case of persons who have died intestate, the approach has been to identify as best as is possible, the person who is a potential administrator, and to treat that person in the same way as if he or she had been appointed executor. He noted that the person with the better legal right to arrange for the burial was the person whose wishes must prevail. Ashley J referred to Calma v Sesar ( supra ) and said that, in his view, Martin J's observations which I have quoted above, were "correct in law, humane and entirely sensible in their practical effect".

[23] In Jones v Dodd (1999) 73 SASR 328, Perry J (with whom Millhouse J and Nyland J agreed) made certain observations about Meier v Bell ( supra ). In Jones v Dodd , the dispute was about the place where the body of a deceased person was to be buried, the contenders being the father of the deceased and the de facto spouse of the deceased. The de facto spouse contended that the question about who should determine where burial occurred should be resolved in accordance with the wishes of the person best placed to obtain an order for administration in intestacy of the estate of the deceased. Reliance was placed on Meier v Bell ( supra ). Perry J said at 37:

'In my opinion, that argument wrongly elevates the approach found to be convenient in some cases, namely, that burial rights be accorded a person in a position to apply for a grant of letters of administration in intestacy, to a rigid proposition or principle of law.'

[24] And at par 40:

'... With great respect to Ashley J, in my view, the authorities do no more than support the view that in some cases such an approach may be appropriate, but that there is no principle of universal application which compels such an approach in all cases. Furthermore, again with great respect, I cannot accept that it is right to reject consideration of emotional, spiritual and cultural factors when they are present, however inconvenient it may be to do so in the short time which is commonly available to decide these cases.'

[25] And at par 46:

' ... But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration.'


[26] I accept the correctness of Perry J's observations. This is because an executor draws his title from the will. A person who seeks letters of administration will only attain that office when an order of the court is made. As was said by Waddell CJ in Brown v Tullock (1992) 7 BPR 15101, no-one can presume conclusively that a particular person will be granted administration before the grant is made.

[27] However, I should add that even if the 'common or usual approach' is not a principle of law, it would have to be an extremely rare case to depart from the usual approach. I say this because a person who is granted letters of administration is the person who has the control over the burial arrangements: see Smith v Tamworth City Council ( supra ) at 691. If the 'common or usual approach' is not applied on nearly every occasion, then we might soon have the spectacle of intending applicants for a grant of letters of administration seeking injunctions to restrain any dealing with the body until there had been such a grant. That would be a most unsatisfactory course in practical terms. It is much better that the decision be made expeditiously and finally, as has occurred in recent cases. I have dealt with this aspect of Jones v Dodd ( supra ) because counsel for Mr Cramley referred to it. In my opinion, however, what was said by Perry J in that case does not affect the outcome in this case."

31 In the earlier case of Smith v Tamworth City Council (1997) 41 NSWLR 680, at 693-694, Young J set out a series of propositions of which the following are relevant for present purposes:

• 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. [This does not arise for consideration in the present proceedings].


• Apart from appointing an executor who will have the right stated in the first proposition, and apart from any applicable statute dealing with the disposal of parts of the body, a person has no right to dictate what will happen to his or her body.

• 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.

• When no executor is named, the person with the highest right to take out letters of administration will have the same privilege as the executor in the first proposition.

• The right of the surviving spouse or de facto spouse will be preferred to the right of children.

• Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

32 The last of the principles referred to can be put another way. It has been said that the person with the highest claim to be appointed administrator of the estate of the deceased has a right to choose how to dispose of the body as an executor: Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997, unreported). This so-called "rule", however, has often been treated by the courts as no more than a prima facie guide that might be applied in some cases.

33 Thus, in Jones v Dodd [1999] SASC 125, the Full Court of the Supreme Court of South Australia considered a claim by the plaintiff’s father against the deceased’s former de facto spouse and mother of his two children to have the body of the deceased buried at a particular location. The deceased had died intestate. In relation to the so-called "rule", Perry J (with whom Nyland and Millhouse agreed) said:

"[37] In my opinion, that argument wrongly elevates the approach found to be convenient in some cases, namely, that burial rights be accorded a person in a position to apply for a grant of letters of administration in intestacy, to a rigid proposition or principle of law."

34 Referring to the judgment of Ashley J in Meier v Bell (supra), Perry J also said:

"[40] In the first place, with great respect to Ashley J, in my view, the authorities do no more than support the view that in some cases such an approach may be appropriate, but there is no principle of universal application which compels such an approach in all cases. Furthermore, again with great respect, I cannot accept that it is right to reject consideration of emotional, spiritual and cultural factors when they are present, however inconvenient it may be to do so in the short time which is commonly available to decide these cases."

35 His Honour then went on to consider the principles outlined by Young J in Smith v Tamworth City Council (supra) and the "unreality" of applying the "usual approach" in circumstances where the deceased had little or no estate or where an application for a grant of letters of administration was unlikely. His Honour said:

"[46] I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration.

[47] I have already referred to Debelle J's view that the principle was that the right of burial applied to the next of kin, in order of their relationship to the deceased.

[48] Although support for that proposition was recognised by Young J to be found in passages which he cites from The Law of Cadavers by Percival E. Jackson, I do not read his judgment as endorsing that approach, given the fact that when Young J comes to summarise his conclusions, as will have been seen from the passage from his judgment which I have quoted above, he regards the authorities as favouring the view that the right of burial follows 'interest', and accordingly, the 'person with the largest interest will normally be the person who is the one expected to bury the body'.

[49] Here, given that there was little or no estate of the deceased, I think that the respondent is right in suggesting that there is unlikely ever to be an application for administration, despite the valiant effort by Mrs Shaw QC to suggest otherwise.

[50] 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.

[51] 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 question."

36 Similar sentiments were expressed by Cummins J in Dow v Hoskins [2003] VSC 206 at [43]:

"[43] . . . the administrator test is the proper prima facie test but not to the necessary exclusion of cultural or other factors where such factors substantially arise on the evidence before the Court."

37 In Calma v Sesar [1992] NTSC 17 at [14]-[15]; (1992) 106 FLR 446, a case involving competing claims of natural parents of a deceased child who wanted to bury the child in different locations, Martin J said, in respect of the resolution of the dispute:

"[14] . . . It requires that the Court to resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but all with proper respect and decency.

[15] The body of the deceased was in Darwin and proper arrangements had been made for burial here. There was no good reason in law why that should not be done and no good reason in law why the removal of the body from the Territory and burial in Western Australia was to be preferred."

38 The authors of Butterworth’s "Succession Law and Practice in New South Wales" make the following observation in relation to distinguishing between persons entitled to administration in the same degree at [1333.12]:

"The primary guide to discretion is the rule that administration will be granted to the person representing the majority of interests. If interests are equal, preference is usually given to the person who applies first: In the Will of Parsons (1887) 13 VLR 169. Where all else is equal, it has been said that the grant will be made to the eldest of those next of kin seeking administration: Re Legh (1889) 15 VLR 816. It was said in In the Will of Parsons that a male will be preferred to a female. Today, however, the question is likely to be looked at more in terms of business experience than sex. General considerations of the fitness of the applicant to act as administrator will be relevant: see In the Goods of Ardern [1898] P 147."

39 A person guilty of the wrongful homicide of the deceased person thereby forfeits the right to administration: In the Estate of Crippen [1911] P 108; In re G (1946) 62 TLR 279. It is also well settled that a person may be passed over in relation to a grant of administration because of his or her bad character or other unfitness to act: In the Goods of Ardern (supra).

40 Counsel for both parties drew my attention to the decision of Heenan J in Joseph v Dunn [2007] WASC 238 delivered on 20 September 2007. The relevant portions of the judgment are as follows:

"[3] Because of the unexplained nature of the death, the district coroner assumed jurisdiction to inquire into the death. The coroner took possession of the body and directed that certain inquiries be commenced which I understand are not yet complete. There is a possibility, perhaps even a high probability, that a coroner's inquest or inquiry will yet be conducted. After initial investigations into the cause of death were completed, a forensic pathologist, after having conducted a post-mortem examination at the state mortuary, prepared, at the direction of the coroner, a confidential interim report and dispatched it to the coroner. The report is equivocal about the actual circumstances and cause of death. Although preliminary, and therefore tentative, the report suggests that this young boy, who was born on 9 April 1999, may have died as a result of some trauma to his head, but the actual cause of death has not been identified. The report indicates that there were a number of lacerations and bruises to the head, forehead, face and to the fingers and hands of the deceased. There was also some lung congestion discovered at post-mortem. No doubt further investigations will be conducted.

[4] However, it is not for me to make a finding about the cause of death. That is the responsibility and the jurisdiction of the coroner and it may require further investigations and deliberation before any conclusion or finding can be reached.

[5] No direct allegations have been made against the defendant suggesting that he in any way was responsible for whatever injury or cause led to the death of this young boy. However, without putting too fine a point on it, it is clear that the plaintiff, the young boy's mother, suspects that there were problems in the household and that from some unknown quarter Jesse was exposed to force. Whether that suspicion is justified or not cannot be answered at the moment and it is not the function of this court to attempt to answer it. No doubt the coroner and other authorities who have the duty and the obligation to deal with these matters will conduct full investigations. Nothing which I say now should be regarded as suggesting in any way what the outcome of those investigations should or might be."

41 After referring to Burrows v Cramley and Smith v Tamworth City Council (supra), his Honour continued:

"[20] With regard to the second proposition, there has been an opportunity for consultation in this matter as a result of the adjournment which I allowed this morning but, unfortunately, agreement has not been possible.

[21] In this case I am satisfied that both the mother and the father have equally-ranking rights to apply for administration. Therefore, 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. This was a test adopted by Martin J in the case of Calma v Sesar (1992) 106 FLR 446.

[22] Six factors have been raised by the plaintiff in support of her submissions that she should be given the right to conduct the funeral by having possession and control of the body. First, that initially the father agreed. I must say there is no doubt that he did but, having regard to all the circumstances, I do not see that that is in any way conclusive or decisive.

[23] Secondly, that she has made detailed arrangements to conduct the funeral in South Hedland. It can be said that the father has made similar arrangements to conduct a funeral in Newman and, as I have said, I am satisfied that both parties are in a position to and are able and willing to conduct a proper and decent burial. Thus, I think that the scales fall evenly on that issue.

[24] Thirdly, it is said that there would be difficulty in arranging attendance at a funeral in Newman for all of the family members and I have touched on Leith's position in this regard. However, I really do not think that that should be regarded as a determining factor. If ever there was an occasion when there should be peace among members of the community, and mutual respect and regard for all members of the family, it is on such an occasion as the important but sad funeral of a young boy.

[25] Fourthly, visits to the grave would be difficult practically for the mother and for members of her extended family who are living in South Hedland, quite some distance from Newman, and who do not have the financial resources to allow them to make frequent visits to the grave. It is emphasised that most, but not all, of the extended family are also in South Hedland or proximate to that town. It is also suggested that it would be more convenient for the father to travel on occasions to South Hedland to visit the grave than vice versa. I think that factor does favour the mother, although only to a small degree.

[26] Fifthly, there is the fact that Jesse lived in Newman only for a relatively short period before his death. However, he was with his father in Newman and in the surrounding district for about two and a half years. It must follow that there is a degree of attachment to Newman. He was attending the local school, where he seems to have been well regarded and respected by the teachers and others. Newman is where his father lives and wishes to remain living. This is a factor which I consider favours a burial in Newman.

[27] One matter which has not been mentioned by counsel is that the coroner decided, after hearing submissions, that the body should be released to the father. The significance of such a decision was discussed by Pullin J in the case of Burrows v Cramley , which I have mentioned. Although it is a factor to be taken into account, it is not to be regarded as decisive. Nevertheless, it is perhaps not insignificant that faced with this difficult decision and paying due regard to the various factors the coroner decided to release the body to the father. I should perhaps be cautious in this regard, because it seems that the coroner had before her information suggesting that Jesse had been in his father's sole care for longer than he actually was - that is, that he had been with his father for up to five years prior to his death. It seems that that information was mistaken or unreliable. Nevertheless, the fact of the matter is that Jesse had been with his father, who had been responsible for his daily care, for the last two and a half years. Further, he had only had infrequent visits from his mother. I hasten to add that this limited access had been forced upon her by a variety of considerations.

[28] The final factor relied upon by the mother is her concern that Jesse was unhappy in the household at Newman and may well have been abused by a person or persons unknown and that a cloud remains over the cause of his death. I can understand why the plaintiff would hold those apprehensions, whether realistically or otherwise, and all I can say is that it will not be possible for them to be confirmed or refuted until after proper investigations have been conducted. It would be wrong to make a decision on such an important matter on the basis of suspicion. The overriding factor must be to see that there are proper and respectful arrangements made for Jesse's burial.

[29] This is an extraordinarily difficult decision to have to make and I realise that no matter what decision is made one parent is likely to be extremely distressed by the result. Nevertheless, on balance, I have no doubt that the factors favour the existing arrangements for the conduct of the funeral in Newman and that the father is in a position to conduct a proper funeral in the near future and should be permitted to do so. I have reached this decision as if it were a matter to be decided on the merits rather than by relying on the well known tests for determining whether or not a court should grant an interlocutory injunction. I think that that is the correct and preferred basis of doing so, as this in effect involves the grant of final relief.

[30] Even when it comes to an application for an interlocutory injunction in this case, the onus is upon the applicant to show that the balance of convenience favours the grant of temporary relief. When I consider that possibility and the disruption which would follow, given that the existing funeral arrangements would have to be abandoned so that other funeral arrangements could be renewed in South Hedland, it seems to me that that would greatly increase the distress for all members of the family. However, that is not a determining factor in my judgment. I am satisfied that the factors which I have mentioned favour the father, who has had the chief responsibility for Jesse's care in recent years, being permitted to proceed with the funeral arrangements in Newman. I therefore refuse the application for an interlocutory injunction."

The mother’s submissions

42 The plaintiff conceded, quite properly, that the mother and the father each had a right to apply for letters of administration although such an application would, in the circumstances of this case, be somewhat extraordinary given that the child passed away without leaving property. The plaintiff submitted that the court ought therefore to proceed upon the basis that the mother and father are of equal rank in relation to letters of administration so that the practicalities of burial without unreasonable delay should decide the issue: Dow v Hoskins (supra) at [46].

43 The plaintiff submitted that the father's approach to the burial of his child was "tinged with unreality". According to the plaintiff's case, the father had precious little, if anything, to do with his son prior to his death. It was only upon being informed that the child’s remains would be released to his mother by the Coroner for burial that he demonstrated any interest at all.

44 However, according to the plaintiff, an attempt to resolve a dispute about which of two parents might have a better claim to a grant of letters of administration will not also resolve the present application. That would be entirely artificial and would divorce the proceedings from the practicalities and from matters of obvious relevance to those involved in the present competition.

45 In that respect the plaintiff submitted that there were a number of matters which, on the evidence, supported the making of orders in her favour. First, the plaintiff has made detailed arrangements for the conduct of M’s funeral and a deposit of $1000 has been paid. She is in a position, and is able and willing, to conduct a proper and decent funeral for the child. Secondly, throughout his short life M lived with his mother. From April 2007 that was in Sydney where the plaintiff intends to continue to reside. The child had no real connection to the Central Coast and according to the plaintiff's case, M's father had little, if anything, to do with him. Thirdly, visits to the grave at the site proposed by the father would present practical difficulties for the mother. The plaintiff does not have a car and her ability to travel either regularly or conveniently to the Central Coast must be doubted. By contrast, the plaintiff anticipates that she will be able to obtain transport with the assistance to the Riverstone Cemetery, which her future sister-in-law regularly attends to visit the graves of other family members. Finally, the plaintiff is a young mother who is endeavouring to cope with the grief of losing her infant son. She is concerned that if his remains are buried at a lawn cemetery on the Central Coast he will be forgotten. There will be no headstone and her visits to him there will be difficult. It was submitted on her behalf that in those circumstances M "would be very much alone", a matter that causes her great sadness.

46 The plaintiff also submitted that a submission by the father, that suspicion surrounding the nature and cause of M’s death was in some way relevant to a consideration of the present application, should be wholly discarded. When the matter first came before me on 7 December 2007, the father disclosed that he intended to resist the making of any orders leading to the release of the remains of M to the plaintiff upon the basis that she was a "suspect" in M’s death. According to the plaintiff, that was an extremely serious matter to canvass in open court in relation to a young mother who was grieving the loss of her infant son and who was doing no more than endeavouring to ensure that her son received a proper burial in accordance with her wishes and in a way that would be most likely to preserve his memory. The plaintiff strenuously denied any suggestion that she was in involved in M's death.

47 The Coroner has a statutory duty to examine the nature and cause of M's death and, if appropriate, to hold an Inquest. However, the Coroner has made it clear that he is prepared to release M's remains. Indeed, until M's father foreshadowed his resistance, the child's remains were to be released to White Lady Funeral Service in accordance with the wishes of the plaintiff who had arranged a funeral for 5 December 2007 at Mary Immaculate Catholic Church, Quaker's Hill, with subsequent interment at the Riverstone Cemetery in a private plot containing the remains of her fiancé's family. A part-payment of $1000 has been made to White Lady Funeral Service with the assistance of a donation from the Aboriginal Land Council. Centrelink or the Salvation Army will pay the balance of the funeral expenses.

48 The plaintiff does not know whether the Coroner will decide to hold an Inquest. She believes that M's death occurred as a consequence of an adverse reaction to the first year immunisations, which were administered in early November. As previously noted, M became ill the next day. In the plaintiff's submission, it would be entirely inappropriate for the Court to embark upon any examination as to the manner and cause of M's death or to refuse the plaintiff relief upon the basis that the father or anyone else "suspected" that she may have had some "involvement" in it. To embark upon such a course would be contrary to authority, a usurpation of the Coroner’s jurisdiction and grossly unfair to the plaintiff whose only concern is to give her infant son a decent burial as soon as possible.

49 In the present case the plaintiff submits that this is an urgent application made in good faith by a very young woman who seeks to bury her young son in accordance with her wishes as his mother and his carer. This Court should not permit her application to be diverted by an extraneous and irrelevant inquiry into the manner and cause of his death.

The father's submissions

50 According to submissions made on behalf of the father, whilst no allegation has been, or can be, made against the plaintiff at the present time, suggesting that she was in any way responsible for her son's death, it is clear that M was living with the plaintiff and her fiancé and was in her care and custody at or about the time he suffered the injuries that resulted in him being taken to hospital. Moreover, because the death is regarded as suspicious, investigations will continue to be conducted into the cause. Presumably all matters, including the plaintiff's involvement, if any, will be investigated fully. The father accepts that nothing this Court could say in these proceedings would be regarded as suggesting, in any way, what the outcome of those investigations ought to be. Unlike Joseph v Dunn (supra), where the confidential Interim Report despatched to the Coroner was "equivocal about the actual circumstances and cause of death", the cause of death in this case has been identified.

51 Even prior to his death, the cause of M's injuries was regarded as other than accidental. He was considered to be at serious risk of harm, for the reason that he had been, or was likely to be, physically or sexually abused or ill treated. Although it is not for this Court to make a finding on the cause of M's death, it appears clear that the plaintiff, and/or her fiancé, and/or some other person within the fiancé's house, may have been involved in M's death. Whether or not any suspicions are justified cannot presently be resolved. That suspicion reasonably exists is self-evident.

52 The father submitted that I should not be satisfied that both he and the mother have equally ranking rights to apply for administration. It was submitted that on the available evidence, the father would be more likely to obtain a grant of administration in circumstances where there are suspicions regarding M's death whilst in his mother’s care. According to the father, even if that submission were not accepted, and I was satisfied that each of the parents had an equal right to administration, the issue would turn largely to matters of practicality, paying due regard to the need to have the body disposed of without unreasonable delay, but with all proper respect and decency. This was a test adopted by Martin J in Calma v Sesar (supra). Taking into account the reasons provided by each of the parties, the father submitted that the facts supported the reasons advanced by the father and M's grandmother.

53 In answer to the fact that the mother has already arranged a funeral for the child, the father said that he has visited Palmdale Lawn Cemetery at Gosford and has picked out a plot for his son. He said that he has spoken to Creighton's Funeral Service and has been told that the plot is available and that the funeral service could be organised within 24 hours. The cost of the plot is said to be approximately $2180, which will be shared between his family and the plaintiff's mother's family, as he is a student with limited funds.

54 Over the objections of senior counsel for the mother I permitted limited cross-examination of her on the topic of competing practical considerations. My attention was drawn to In the Estate of Jones (Deceased); Dodd v Jones [1999] SASC 458 at [4] where Doyle CJ noted that cross-examination would not have been helpful. In Keller v Keller [2007] VSC 118, Hargrave J said at [9]:

"[9] The authorities establish that the Court ought not, in an application such as this, embark upon a lengthy adversarial hearing to resolve the various claims and counter claims. This would delay the decision for an unacceptable period whilst the body remained undisposed of. Accordingly, cross-examination will usually be inappropriate."

55 Two principal matters arose during a brief and sensitive cross-examination of the plaintiff. First, the plaintiff insisted that even if her relationship with her fiancé were for some reason to fail, she intended to remain in Sydney. She gave evidence that her disinclination to return to the Central Coast was influenced, in effect, by her desire to become and to remain part of her fiancé's family, whatever may happen to the relationship she had with him, on the one hand, and by her painful and unpleasant experiences on the Central Coast with the members of her immediate and extended family who lived there, on the other hand.

56 Secondly, the plaintiff did not agree with the suggestion put to her that Palmdale was, in effect, the lesser of two evils because it represented what was approximately the midway point between Sydney and the Central Coast. The plaintiff reiterated that without access to a car, any journey by her from Sydney to Gosford was extremely inconvenient and for all relevant intents and purposes impossible. A difference arose between the plaintiff and senior counsel for the father as to a reasonable estimate of the driving time between the two locations.

Consideration

57 The present proceedings are in effect interlocutory. As Bryson J said in Privet v Vovk [2003] NSWSC 1038 at [5]:

"[5] The present proceedings, notwithstanding their form, are essentially interlocutory, and any declaration or direction that I make will have the effect of an interlocutory direction relating to the administration of the estate of the deceased pending a decision of the court as to grant of probate or administration of her estate. A decision on the grant of representation could only be reached after elaborate consideration of issues. Involved in that consideration would be a decision on the validity of the marriage celebrated or purportedly celebrated on 13 June 2003. Both the question whether probate should be granted and of what document and the question whether the marriage was valid are questions which could only be settled satisfactorily by a formal process leading to a judgment having effect in rem so as to bind the whole world. The present hasty proceedings are an altogether unsatisfactory vehicle for coming to a conclusion which would finally bind either the world at large or these parties to any conclusion made in it, and I do not attempt to do so."

58 The present proceedings had to be determined quickly. They came before me on a Thursday. I reserved my decision to the following Monday after an opportunity to reflect over the weekend. I did not have the luxury of a full investigation of the facts. Indeed, many of the facts that are said to be relevantly in dispute may not be determined for many months and probably many years. Some of those facts are beyond the jurisdiction of this Court to determine in any event.

59 Notwithstanding that both the mother and the father of the child conceded that the particular circumstances of this case called for its determination by reference to matters of practicality and convenience, arguments in support of their respective contentions inevitably invited a consideration of significantly more arcane matters such as love, sentiment, grief, responsibility and even anger. It would in my opinion have been curious if these matters had not become prominent in the present proceedings, and wrong to exclude consideration of them when they did. It seems to me to be presently beyond doubt that each of the child's mother and father feels the need to pursue her or his respective claims for relief for reasons not necessarily entirely associated with the ultimate outcome. This is also completely understandable. However, such factors are usually evenly balanced and not productive of satisfying or comfortable persuasion. This case is no exception.

60 One such matter requires specific mention. Portions of the father's affidavit evidence extracted above at par [12] disclosed that he would not be happy for his son to be buried in any cemetery that had a connection to the plaintiff's fiancé or his family. No compelling reasons why the father maintained this attitude were given. Quite apart from the absence of any satisfactory explanation, I would not be prepared to accord any significance to it as a relevant consideration. Emotional, spiritual and cultural factors are relevant but not without limitation. To take account of such a matter would in my view impermissibly enlarge the range of potential considerations beyond matters of practicality, particularly in circumstances where the merits are otherwise evenly balanced. As was the case in Joseph v Dunn (supra), I am satisfied that both the mother and the father have equally ranking rights to apply for administration.

61 Whichever location is chosen for the child's burial, there will be difficulties of access to one or other of the parties and those associated with them. However, at least two things need to be said about this. First, M's parents are still very young. Neither has had a proper opportunity to work or to acquire any financial stability or independence. The father is presently studying year nine at TAFE. He does not own a car and the prospects of him doing so in the near future must be considered doubtful. Although the evidence is somewhat unsatisfactory, the mother's position did not appear to be to be any different. I am not aware that she is currently employed or has any immediate prospect of obtaining employment, and she is also subject to the vicissitudes and uncertainties of public transport. In these circumstances it seems to me that the tyranny of distance that appears to be so important to each of them at this stage of their lives is likely, to some extent at least, to recede as they make their way in the world.

62 Secondly, the distance between the two proposed burial locations is not, in the scheme of things, all that great. In the shadow of their son's recent death, the importance of visits to his gravesite will undoubtedly have been elevated to a level that will recede with the passing of the years. The parents' need physically to pay their respects to the memory of their son will not always be as pressing as it now appears. Nor can there be any guarantee that M's parents will continue to live where they presently reside.

63 Of the several matters to which I have given anxious consideration, one factor appears to dominate all others. The plaintiff has had the primary care and responsibility for her son since his birth. Although the child lived for only 14 months, the bond that must have developed between him and his mother will undoubtedly have been significant. M had a large number of people in his life who loved him, but his relationship with his mother was necessarily unique.

64 The mother gave evidence that prior to M's death, she had not had any contact with the father since the visit at his mother's house when M was about three months old. She said that the father had not had any subsequent contact with M, nor had he given her any financial support. She said that the father had not given her any gifts or other items for their son and had not contacted her to ask if he could visit him. She denied that the father had contacted her on M's birthday. I accept that the father had very limited financial resources.

65 As indicated earlier, there is a dispute about the nature and extent of the father's involvement with M and the quality and quantity of contact that they may have shared. The father was not cross-examined and I did not have any opportunity to assess him or to form any reliable view about him. His own affidavit evidence reveals, however, that his contact with M was extremely limited. In the particular circumstances of this case, that does not strike me as unusual.

66 It is very important to emphasise that the result in this case is not, and should not appear to be, a prize for who was the better parent. It would be difficult to imagine circumstances more difficult for these young parents, each wanting to make a significant contribution to their son’s life and upbringing, than the circumstances that confronted the mother and the father in this case. M's premature death has led each of them painfully to reflect upon their respective lives with him, and upon the role played by the other parent in his life. Those reflections will undoubtedly have become afflicted with inaccuracies.

67 M should be laid to rest soon and with him the acrimony that these proceedings have revealed. How he died or in what circumstances is not known to me and cannot yet be ascertained. His mother will not, in my view, return to the Central Coast in the foreseeable future, if she does so at all. Those members of M's family and his friends who live there are in my opinion at the moment better equipped to travel to Sydney in the near future than is the plaintiff to journey to Palmdale. Arrangements are in place for M's burial in Sydney and presumably that can occur this week or at least before Christmas. That is what in my opinion should occur.

Orders

68 I make the following orders:

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.

**********