Abraham v Magistrate Stone, Deputy State Coroner - [2017] NSWSC 1684

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 587
Texts 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 curiae
Representation:
Counsel:
PM Lane (Plaintiff)
Submitting appearance (First Defendant/Cross-Defendant)
J Needham SC/E Tringali (Second Defendant/Cross-Claimant)
S Free (State of NSW)
Solicitors:
Crown Solicitor’s Officer (First Defendant/Cross-Defendant)
Gilbert + Tobin (Second Defendant/Cross-Claimant)

File Number(s): 2017/332903

Judgment

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.
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,…

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.

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Details

Case: [2017] NSWSC 1684
Decision Date: 05 December 2017

CaseChat Overview and Summary

The matter of Abraham v Magistrate Stone, Deputy State Coroner was heard in the Supreme Court of Victoria. The dispute arose between the parents of a deceased minor, who were divorced, over the burial rights and cultural considerations for their child's funeral. The father, the applicant, sought a declaration that he was entitled to make the final decisions regarding his son's burial, whereas the mother, the respondent, opposed this, arguing that she should have an equal say in the matter, particularly considering the Maori cultural aspects.

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