Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 Hearing dates: 4 December 2017 Date of orders: 05 December 2017 Decision date: 05 December 2017 Jurisdiction: Common Law Before: Rothman J Decision: (1) The First Defendant be at liberty to release the remains of Pono Wairu Aperahama to Lance and Alice King Funerals or such other funeral service as the Second Defendant/Cross-Claimant may direct for the purpose of carrying out the funeral arrangements referred to in [47]-[49] of the Affidavit of Piki-Ora Aperahama;
(2) Following the funeral service and cremation referred to in the immediately preceding order, the Second Defendant/Cross-Claimant arrange for approximately half of the cremated remains of the deceased to be released to the Plaintiff;
(3) The parties shall bear their own costs.Catchwords: INTESTACY – burial rights – minor’s death – equal rights of mother and father – significance of Maori culture – disagreement between divorced parents as to appropriate burial place and kind of funeral – cremation and burial – the practicalities of burial without unreasonable delay – regard must be had to the parties’ understanding of cultural requirements, but the issue should be decided on the basis of principle Legislation Cited: Coroners Act 2009 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)Cases Cited: Darcy v Duckett [2016] NSWSC 1756
Doherty v Doherty [2006] QSC 257
JSB (a child) v Chief Executive, Ministry Of Social Development (High Court of New Zealand, Heath J, 4 November 2009, unrep.)
Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197
State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64
Takamore v Clarke [2011] NZCA 587Texts Cited: New Zealand, Law Commission, The Legal Framework for Burial & Cremation in New Zealand: A First Principles Review, (4 October 2013) at 183 Category: Principal judgment Parties: Te Rina Abraham (Plaintiff)
Magistrate Stone, Deputy State Coroner (First Defendant/Cross-Defendant)
Steven James Timothy Henry (Second Defendant/Cross-Claimant)
State of NSW – amicus curiaeRepresentation: Counsel:
Solicitors:
PM Lane (Plaintiff)
Submitting appearance (First Defendant/Cross-Defendant)
J Needham SC/E Tringali (Second Defendant/Cross-Claimant)
S Free (State of NSW)
Crown Solicitor’s Officer (First Defendant/Cross-Defendant)
Gilbert + Tobin (Second Defendant/Cross-Claimant)
File Number(s): 2017/332903
Judgment
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HIS HONOUR: The Court has before it a Summons and Cross-Summons seeking orders, in the inherent jurisdiction of the Court, granting, to one or other of the parents of a deceased, possession of the deceased’s body in order to carry out funeral arrangements.
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The original Summons filed by the deceased’s mother (“the Plaintiff”) seeks orders for the appointment of the mother as senior next of kin under the Coroners Act 2009 (NSW); the quashing of the orders of Deputy State Coroner Stone already made in that respect; and the staying of said orders pending this Court’s ruling on the appropriate senior next of kin. Further, an order was sought seeking to prohibit the release of the deceased’s body to anyone other than the mother,…
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- Case
- [2017] NSWSC 1684
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the father had the sole right to decide on the burial arrangements of their deceased son, and if not, how the court should balance the rights of both parents in light of the child's cultural heritage. The court needed to consider the statutory provisions on intestacy and burial rights, as well as the cultural significance of the Maori traditions in the context of the deceased's upbringing and identity.
The court held that while the father, as the legal custodian, had the primary responsibility for making decisions regarding the burial of his son, this did not mean he had absolute authority. The court emphasised the importance of considering the mother's perspective, especially given the cultural significance of the Maori traditions. The judge concluded that both parents should have an equal say in the decision-making process, taking into account the child's cultural background. The court stressed that the decision should not be based solely on the practicalities of burial but should also respect the cultural requirements understood by the parties. The final orders reflected the court's decision that both parents must jointly decide on the appropriate burial place and the kind of funeral, ensuring that the child's cultural heritage is honoured.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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