Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird
[2020] NTSC 67
•13 October 2020
CITATION:Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Territory Coroner & Baird [2020] NTSC 67
PARTIES:Baird, Rosemary Therese
v
The Coroner of the Northern Territory
and
Puruntatameri, Constance May
ANDPuruntatameri, Constance May
v
The Territory Coroner
and
Baird, Rosemary Therese
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NOS:2020-02678-SC and
2020-02763-SC
DELIVERED ON: 13 October 2020
HEARING DATE: 25 September 2020
JUDGMENT OF: Barr J
CATCHWORDS:
HEALTH LAW – Burial rights – Deceased 15 year old youth – Dispute between biological mother and adoptive mother/kinship carer – Right to arrange funeral and bury the deceased – Cultural considerations – Practical considerations – Order that body of the deceased be delivered to adoptive mother/kinship carer for funeral and burial
Administration and Probate Act 1969, s 22
Coroners Act 1993, s 3, s 17 (1)
Calma v Sesar and anor (1992) 2 NTLR 37, 106 FLR 446; Smith v Tamworth City Council (1997) 41 NSWLR 680, considered
Gilliott v Woodlands [2006] VSCA 46, distinguished.
REPRESENTATION:
Counsel:
Rosemary Baird: JCA Tippett QC
Constance Puruntatameri: L Nguyen
NT Coroner: B Wild
Solicitors:
Rosemary Baird: Maley Barristers and Solicitors
Constance Puruntatameri: North Australian Aboriginal Family Legal Service
NT Coroner: Solicitor for the Northern Territory
Judgment category classification: B
Judgment ID Number: Bar2006
Number of pages: 25
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINBaird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Territory Coroner & Baird [2020] NTSC 67
No. 2020-02678-SC and 2020-02763-SCBETWEEN:
ROSEMARY THERESE BAIRD
Plaintiff
AND:
THE CORONER OF THE NORTHERN TERRITORY
First Defendant
AND:
CONSTANCE MAY PURUNTATAMERI
Second Defendant
AND BETWEEN:
CONSTANCE MAY PURUNTATAMERI
Plaintiff
AND
THE TERRITORY CORONER
First Defendant
AND
ROSEMARY THERESE BAIRD
Second Defendant
CORAM: Barr J
REASONS FOR JUDGMENT
(Delivered 13 October 2020)
Rosemary Therese Baird (“Rosemary”) and Constance May Puruntatameri (“Constance”) have both applied for orders giving them the right to dispose of the body of R who was born on 27 March 2005 and who died at the age of 15 on 19 May 2020. I will refer to the deceased as “R” or “the deceased”.
Rosemary and Constance are both Aboriginal women. Constance is the biological mother of the deceased.
With the consent of Constance, Rosemary undertook the primary care and responsibility for R from when he was five months old, and remained his principal and probably sole caregiver throughout his life. She assumed the role of mother and treated R as her son. She undertook his school enrolments each year, from Grade 1 at Gray Primary School, to Grade 7 at Rosebery Middle School, to Grade 9 at Palmerston Senior College. She attended school appointments with teachers, school functions, school graduations and presentations, as well as all school sports events in which R was involved. When his schooling fell behind, which happened on more than one occasion in the several years prior to his death, Rosemary enrolled him in the YMCA re-engagement program, known as the ‘Back2School’ program, the purpose of which was to re-engage young people in education and prepare them to enter mainstream schooling or vocational education.[1] R was also a talented basketball and rugby player, and Rosemary encouraged his participation in his chosen sports. As his mother, she signed him up and paid all expenses, including for the purchase of jerseys, shorts, socks, boots and refreshments. She even paid for one of his friends to participate with him in basketball.[2]
From the time she assumed his care, Rosemary was listed as R’s mother and next of kin in his medical records. He was on her Medicare card. She attended medical appointments with him, as his mother. She accompanied him to Danilba Dilba (an Aboriginal medical service), Farrar medical centre and Royal Darwin Hospital when he needed go there, including on occasions when he was taken to Royal Darwin Hospital by ambulance for emergency care. She participated with him in several sessions of a voluntary education program on alcohol and other drugs. She was always there for him. She even accompanied him as his mother to the Darwin Police Station and Palmerston Police Station when it was required.[3]
Rosemary also arranged for R’s baptism in the Catholic Church and his first Holy Communion, both in June 2014.[4]
The facts set out in pars [3] to [5] above are not in dispute.
Each of the applicants filed and relied on extensive affidavit evidence from herself and witnesses. Counsel for both parties elected not to cross examine deponents, in recognition of the fact that resolution of the matters in contest would require many days of hearing if witnesses were to be tested by cross-examination in a full adversarial context. Although the approach of counsel is quite understandable in the circumstances, the result is that it has been difficult for me to resolve some of the factual conflicts between the opposing sides.
Rosemary was born in Darwin and identifies as being of Tiwi/Iwaidja and Kaytetye descent.[5] She claims Tiwi heritage through her great-grandmother on her father’s side. She states that, growing up in Darwin, she retained connections with her father’s family (who hail from Melville Island) when they came into Darwin and stayed at her family home in Douglas Street, Fannie Bay. It would be fair to say that Rosemary probably does not have as strong a Tiwi cultural connection as Constance. Nonetheless, R learnt of Tiwi culture and practices by attending funeral ceremonies with Rosemary, and not Constance.[6] Moreover, the deceased’s cultural participation was not confined to the Tiwi culture of his biological mother, and extended to participation in Iwaidja culture through Rosemary.[7]
Constance was born on Paru Outstation on Melville Island. She belongs to the Munupi Family Clan Group of Melville Island. The deceased is the youngest of her children. Constance refers to Rosemary as her sister under Aboriginal law. Constance describes how Rosemary’s father, Henry Hunter, came to the Tiwi Islands from East Arnhem Land as part of the Stolen Generation. Constance’s father, Romauld Puruntatameri, “performed ceremony” for Henry Hunter thus enabling him to be part of a Tiwi clan group. As a result, they respected each other as brothers, and, because of that relationship, Constance respects Rosemary as a sister.
After the birth of R, Constance remained in Darwin for about five months, living in the suburb of Jingili with her then partner, Declan O’Gallagher. It was thought that Mr O’Gallagher was the child’s father.[8] After Constance returned with baby R to Melville Island, she experienced some personal difficulties. She explains, “There was a lot of things going wrong in my life at the time, I started to drink”.[9] At that time, she asked Rosemary to look after the child for her. She explains that it is traditional in Tiwi culture for sisters to look after the children of other sisters, and that she herself has looked after the children of other sisters as part of this culture. She asked Rosemary to look after her child because she was not able to do so at the time.[10]
Constance asserts that she continued to have contact with the deceased for his whole life. She said that, when she would visit family, he would come around and they would spend time together. He was always excited to see her. She claims that she would travel to Darwin for either Christmas or New Year so that she could spend time with the child; and that she would do this most years. Rosemary denies any such ongoing contact.[11]
Melville Island – July to September 2019
Both Rosemary and Constance place significance on the events which occurred in the brief period which R spent on Melville Island, from 14 July to 4 September 2019. The background to the Melville Island sojourn was that R had fallen in with a youth gang in the Palmerston area and was in trouble with the police.
Constance says that in 2019 Rosemary sent the deceased to Snake Bay “where we could talk to him and teach him more about culture”.
Rosemary says that R was in Milikapati in July 2019 to enrol at the Tiwi College (a boarding school) as part of his Youth Diversion program, with the intention that he get away from Palmerston, and away from friends who were causing trouble. She asserts that Nikita Heenan (see [15] below] was meant to arrange for the deceased to enrol at Tiwi College, but failed to do so. According to Rosemary, Nikita Heenan left him in the care of two other family members. It is unclear for how long. After some weeks, R contacted Rosemary to ask to return to Darwin as soon as possible because “he was distraught with what he had been exposed to while residing at Milikapiti”. Rosemary immediately arranged and paid for his return flight to Darwin,[12] on 4 September 2019. Although R told Rosemary only that family members (he named them) were bullies, Rosemary received information from another source that R had been accused of stealing cannabis belonging to those family members and had been physically punished.[13]
Nikita Heenan, from Milikapati, Melville Island is the daughter of Constance and Gerry Heenan, and so is the deceased’s sister or half-sister. She is 30 years old. She states that, after Rosemary requested that R go to live in Milikapati, her family decided that he would live there with her. During the time he spent on Melville Island she took him out hunting and fishing and showing him “all the cultural places”. He went on a camping trip with family members, including Constance and Gerry. He would be in bed every night because “we would go out and find him if he was not”. She acknowledges some problems with R while he was living with her. She “growled” (reprimanded) her brother about a number of things, including about one of boys he was associating with, and the fact that he was drinking and smoking. She acknowledges that she left him one weekend “so [she] could go and buy food”. However, she said that she left him with Constance and Gerry. Nikita Heenan said that “the family” wanted to organise for R to stay in Milikapiti so that he could go to Tiwi College. It was decided that Jerrica Heenan would look after him. She said that Rosemary agreed to “help sign for Jerrica to be the deceased’s guardian”.
Nikita Heenan claims that Rosemary said she had paid for flights for both R and Jerrica to travel to Darwin on 4 September 2019 to retrieve R’s belongings and to buy some school supplies. However, when Jerrica got to the airport there was one ticket only, for the deceased. Nikita Heenan says “I do not really know what happened”.[14]
Rosemary Baird says that there was “no conversation” about her paying for a ticket for Jerrica Heenan to come into Darwin, and denies that she even knew Jerrica Heenan was intending to travel to Darwin. She was told by the deceased only that Jerrica Heenan was driving him to the airstrip to catch the plane.[15]
Nikita Heenan claims that she spoke to the deceased in March 2020 when he visited her at the house of Elizabeth Heenan in Palmerston. She asked him why he had left Milikapati, and why he had not come back. Her evidence as to his reply, and her subsequent response, is as follows:[16]
He said that Rosie was saying nasty things about us and that we hated him and did not love him or want him. This is not true, we wanted the deceased back on Tiwi so we could look after him. The deceased said he loved me and wanted to come back to Tiwi. I was not able to organise it because of the coronavirus and I had to go back to Milikapati before the communities went into lockdown.”
Constance describes the circumstances in which R came to Melville Island in July 2019. She refers to the fact that R was associating with boys who were part of a youth gang in Palmerston, and had found himself in trouble with the police. Her affidavit evidence is as follows:[17]
… Rosie called us and asked if he could come back out to Tiwi so that we could look after him and protect him. We agreed for the deceased to come back to Milikapiti to live with his sister Nikita Heenan.
In July the deceased came back out to Melville Island … He lived with Nikita and his uncle Tracy Puruntatameri.
We were going to enrol him in Tiwi College as he wanted to finish his education and learn his culture. He was excited and wanted to one day work on the land of his people.
To help him at school Rosie agreed that she would sign the Centrelink form to make Jerrica Heenan his guardian. Jerrica is the daughter of my husband Gerry and the deceased’s sister.
Rosie agreed to pay for a flight from Tiwi to Darwin for the deceased and Jerrica so as they could sign the paperwork. Jerrica would then help the deceased collect his things, they would do some shopping for school and then travel back to Melville Island.
The morning of the flight the deceased and Jerrica arrived at the airport. Only one ticket had been paid for and that was for the deceased. I do not know why but the deceased went back to Darwin by himself.
My family and I were really upset with what happened.
It is impossible to make findings about all of the facts in dispute, given the extensive hearsay evidence and difficulties in assessing the evidence in circumstances where the witnesses were not cross-examined.
In terms of the plan (asserted by Rosemary, and confirmed by Constance and Nikita Heenan) that R would be enrolled at Tiwi College as a border, it is reasonable to expect that Term 3 would have commenced in the last week of July 2019 and then continued over the next 10 weeks to the last full week in September 2019. To the extent that it was intended that family in Melville Island would arrange for the deceased’s enrolment, that clearly did not happen. Although he had travelled to the Tiwi Islands on 14 July 2019, he had not been enrolled by the end of July, or even by the end of August. He had still not enrolled by the time Rosemary arranged for his flight back to Darwin on 4 September 2019. This ‘non-enrolment’ was a source of frustration to Rosemary, who became concerned that R was not complying with a condition of his Youth Diversion by not enrolling at Tiwi College. She sent messages to Senior Constable Karl Gunderson, a police officer stationed at Pirlangimpi (Melville Island) on 23 July 2019 and 11 August 2019, asking him to make contact with R to follow up school enrolment.[18]
It is tolerably clear that the deceased became unhappy living with his host family in Milikapiti. It is also clear that he had limited contact with Constance. He did not live with her, and it appears that she did not have any significant role in his care (except possibly for one weekend). Had he remained in Milikapiti, he would not have been living with Constance. She would not have been his guardian. The deceased was not attending school. He clearly made his own choice to return to live with Rosemary. She was the person who supported him in significant times of his life, in good and bad times, even when he was in trouble with police. She was the person he wanted to speak to when he found himself in trouble in the last hours of his life.
Significantly, Constance and her family did not seek to intervene when Rosemary arranged for R to return to Darwin on 4 September 2019. Constance claims that she did not know why he went back to Darwin by himself. Nikita Heenan does not know what happened.[19] Even though Constance and her family were said to be “really upset”, Constance did not request that the deceased be returned. Neither Constance nor any member of her family challenged the decision or Rosemary’s authority to make the decision. It is tolerably clear that they accepted, albeit perhaps with some level of resentment, that Rosemary had the right to make that decision. It is possible also that they understood at the time that the decision was in accordance with the wishes of the deceased.
Cultural issues
I turn to consider the cultural and spiritual sensitivities of Constance and those members of her family who claim the duty and right to bury the deceased on Melville Island.
Elisabeth Heenan is the sister of Gerry Heenan, who is married to Constance. Her evidence is as follows:[20]
It is important that the deceased goes back to the Tiwi Islands. He needs to be buried with his ancestors. The deceased is part of the Munupi clan and needs to be buried on their country.
In Tiwi culture there is two processes that need to be undertaken for the burial of a Tiwi Islander. The first is where we bury the deceased on their home country, they need to be buried near their ancestors. At the burial we will do the songs and dances of the clan to which the deceased belonged. The dancers will reflect the relationships the deceased had in his life. The singing will be about his family’s connections to the land.
The second is that during the next dry season the family is to undertake Pukumani.
Pukumani is a practice where we will attend the burial site and undertake ceremony. The ceremony is done by the family and is for the purpose of allowing everyone to heal from the trauma of the death. If the ceremony is not completed the family will continue to suffer trauma and this can be passed down through the generations. It is even more important to have Pukumani if the death was sudden, tragic or traumatic.
At the Pukumani the deceased is able to cross over into the spirit world. The family will craft a Pukumani burial pole for the occasion. When the Pukumani burial pole is erected on the burial site of the deceased it will allow them to travel through to the spirit world. This allows them to be with their ancestors in the spirit world.
If the deceased is not buried on their home country and Pukumani is not performed then the deceased will become Mobadidi. Mobadidi is an evil spirit that has not been laid to rest. This will mean there will be no peace for the deceased and the family.
As the deceased was a Tiwi Islander of the Munupi Clan Group it is important that he is buried on his country on the Tiwi Islands near his ancestors. If he is not buried there and Pukumani performed none of the people in his life will be at peace.
Pukumani cannot be performed in Darwin on Larrakia land. This would be a breach of protocols and would not be accepted by the Larrakia people.
Ms Heenan works as a cultural educator for the Northern Territory General Practice Education. She teaches doctors about Aboriginal culture. It is unusual that the sister-in-law of a party gives expert evidence in support of that party’s case. However, Ms Heenan has not been cross examined, and there is no reason not to accept and give proper weight to her evidence. Based on the evidence of Elizabeth Heenan, I conclude that to make the orders sought by Rosemary would cause cultural offence as well as personal disappointment to Constance and members of her family.
If Rosemary’s case could be summarised in one or two simple statements, it is as follows:[21]
Constance cannot claim him in death when she did not want to claim him in life. There is no one in the Puruntatameri family that embraced him and wanted to welcome him into their life. He has belonged to the Hunter and Baird family all his life; it is right that we have the right to bury him.
Rosemary acknowledges that, when there is a dispute under cultural law in relation to a deceased person, the responsibility for the deceased goes to the family member who is closest to the deceased; moreover, that the closest person in a child’s life is the parent of the child.[22] In reference to the deceased, however, Rosemary asserts that Constance relinquished her role as the mother of her young son, and allowed “her Hunter sisters” (relevantly, Rosemary) to take on the role of the child’s mother without interference from Puruntatameri family members. Rosemary duly took on that role. The role of mother also included the cultural education of the child. Rosemary says that that, in the given circumstances, she became the parent and mother of the deceased “under cultural law”.[23]
I have difficulty understanding precisely what is meant by “cultural law” in this context. However, the result in this case does not depend upon the strength of the opposing parties’ cases under “cultural law”, and I do not need to resolve that particularly difficult issue. It suffices to say that, for all practical purposes, Rosemary became and remained the mother of the deceased to the time of his death.
Rosemary has made funeral plans in consultation with her senior family members who live on Melville Island. She proposes a Christian church service with Tiwi involvement, to take place in Darwin, and that the deceased be then buried at the Thorak cemetery, with a “cultural Tiwi burial with involvement from family”.[24] She would then hold a wake, to provide refreshments to family and friends and to celebrate R’s life with a slideshow in his memory. Her intention is that family and friends in Darwin, Palmerston, Bathurst Island and Melville Island will be able to visit the place of burial as they wish. It is Rosemary’s intention is to visit the gravesite as often as she can and to place fresh flowers there.[25] In this context, I note that visiting the deceased’s place of burial would be very difficult for everyone except Constance and her family if the burial place were on Munupi clan country on Melville Island.
Consideration of legal issues
Under general common law principles, certain persons are under a duty to bury the dead, and that duty is accompanied by a right to possession of the body for this purpose. Where a deceased person has not left a will, the duty and right to dispose of the deceased’s body goes to the administrator of the deceased’s estate. Prior to the grant of letters of administration, a court would grant the right of disposal to the person who is most likely to be awarded the right to administer the estate.
The Administration and Probate Act 1969, s 22, specifies to whom administration may be granted:-
22To whom administration may be granted
(1) Subject to this section, the Court may grant administration of the estate of an intestate person to:
(a)the spouse or de facto partner of the deceased person;
(b)one or more of the next of kin;
(c)the spouse or de facto partner conjointly with one or more of the next of kin; or
(d)such person, whether a creditor or not of the deceased person, as the Court thinks fit.
(2) The Court shall not grant administration to a person who is not the spouse or de facto partner or one of the next of kin of the deceased unless:
(a)there is no such spouse or de facto partner or next of kin;
(b)there is no such spouse or de facto partner or next of kin within the jurisdiction who is, in the opinion of the Court, fit to be trusted; or
(c)there is no such spouse or de facto partner or next of kin who, when duly cited, appears and prays for administration.
The deceased did not have a spouse or de facto partner, and a preliminary reading of s 22 would suggest that his biological mother would be awarded administration on the basis that she is “next of kin”, who (on the assumption that she is “fit to be trusted”) would be preferred to a person such as is referred to in s 22 (1)(d) as a result of the application of s 22 (2) of the Act. However, the definition of “next of kin” in s 6 (1) of the Act is “… those persons, other than a spouse or de facto partner of the deceased person, who would be entitled to take an interest in the estate of the deceased person if he or she had died intestate”. There is no evidence that the deceased had any assets and so it is unlikely that Constance would be considered the deceased’s “next of kin” within the meaning of the Administration and Probate Act 1969, because there is no estate in which she would be entitled to take an interest. More fundamentally, if there is no estate, then there is nothing in respect of which the Court may grant administration pursuant to s 22 (1) of the Act.
In Smith v Tamworth City Council,[26] Young J reviewed a number of authorities and referred to the situation where the deceased does not leave an estate, as follows:
It can be seen from the cases that where the person has named an executor, that named executor has the primary privilege of burying the deceased’s body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, In the estate of Slattery [citations omitted], the person with the largest interest will normally be the person who is the one expected to bury the body.
Where the deceased does not leave any estate, then it would seem that the duty is still on the person under whose roof the deceased dies to arrange the burial, though if it can be said that there is a legal duty on another person to bury the body, then that other person will be subject to a restitutionary action at the suit of the householder who arranges the burial. The first part of the proposition I have just enunciated is supported by the decision of the Full Court of the King’s Bench in R v Stewart.
His Honour’s reasoning is consistent with the object of the Administration and Probate Act 1969 being the administration of the estates of deceased persons, arguably primarily the administration of the property and finances of such estates. Section 22 of the Act is directed more at the appointment of a person to administer a deceased’s estate than to perform the incidental duty of disposal of the body of the deceased where an estate does not exist. That would explain the reference in s 22 (1)(d) to a creditor (who is not next of kin) being a person whom the Court might think fit to be granted administration.
In this case, I proceed on the basis that Constance has no advantage over Rosemary in terms of being able to demonstrate the likelihood that she would be granted administration of any estate, and hence able to enforce an administrator’s right to dispose of the deceased’s body. They are thus on equal footing with one another in respect of a matter which is frequently considered to be determinant of disputes of this kind.
In Smith v Tamworth City Council, Young J stated a conclusion that where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.[27] As was observed by Martin J in Calma v Sesar, “It requires that the Court 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”.[28]
The Coroners Act 1993 is not relevant
Counsel for Constance refers to her client’s status as the deceased’s “senior next of kin”, as that term is defined in the Coroners Act 1993, which she contends strengthens the case that Constance is entitled to a grant of administration in respect of the deceased’s estate and to possession of the body for the purposes of burial.[29] A person may be “senior next of kin” to a deceased person in several ways, including (1) as the person’s parent; (2) in the case of an Aboriginal, as “a person who, according to the customs and tradition of the community or group to which the person belongs, is an appropriate person”, and, as a default provision, (3) “a person who immediately before the death of the deceased person had a relationship with the deceased person that, in the opinion of the coroner, is sufficient for the purpose of being the senior next of kin”.[30]
It may be accepted that Constance qualifies in several ways as “senior next of kin” under the Coroners Act 1993. However, I do not consider that that is relevant to the decision this Court has to make. The significance of a person’s status as “senior next of kin” is that that person must be notified where the coroner makes a decision not to hold an inquest,[31] or where the coroner directs that an autopsy be performed on a deceased person who has been held in custody,[32] or where the coroner orders exhumation of a deceased person’s body.[33] In each of those situations, there is provision for objection, and for time to be allowed, before the notified action is taken, to enable the senior next of kin to make a court application. The concept of the “senior next of kin” has no relevance outside the particular statutory provisions of the Coroners Act 1993. In these proceedings, it does not add to the already significant consideration that Constance is the biological mother of the deceased.
Counsel for Constance also submits that the coroner has power to decide to whom the deceased body’s is to be released, and that he has already made that decision. The submission suggests that the coroner is the sole authority to determine to whom the deceased’s body should be released, or at least that any decision by the coroner should be persuasive.
Pursuant to s 17 (1) Coroners Act 1993, where there is a reportable death (and the death of R was a ‘reportable death’), the body of the deceased is under the control of the coroner until the coroner has issued a certificate permitting its disposal.
Counsel acting for Constance relies on the decision of the Victorian Court of Appeal in Gilliott v Woodlands,[34] and contends that a coroner in the Northern Territory, as in Victoria, has implied authority to determine to whom a deceased’s body should be released in the case of disagreement or conflict. For reasons explained in [43]-[49], I doubt that the contention is correct.
Section 24 of the Coroners Act 1985 (Vic) is in very similar terms to s 17 (1) Coroners Act 1993 (NT). It provides as follows:
If a reportable or reviewable death occurs and the body is in Victoria, the body is under the control of the coroner investigating the death, subject to any directions the State Coroner may give to a coroner, until the coroner has issued a certificate, in the prescribed form, permitting burial, cremation, disposal at sea or other disposal.
However, there is a provision in the Victorian legislation which is not contained in the Northern Territory legislation, namely s 23 (1) Coroners Act 1985 (Vic):
A coroner investigating a death must issue as soon as reasonably possible a certificate in the prescribed form permitting burial, cremation, disposal at sea or other disposal.
That particular provision was determinant in Gilliott v Woodlands; the Court of Appeal there observed as follows:[35]
There is nothing in s 23(1) which authorises the Coroner to decide – where there is a contest – to whom the body is to be released or where the disposal of the body is to take place, issues which – as the present case demonstrates – are often intertwined. Nevertheless, we are in no doubt that the Coroner does have the power to decide those questions if and when they arise. The duty to issue “as soon as reasonably possible” a certificate permitting one or other form of disposal of the body carries with it, by necessary implication, the power to decide questions as to where and by whom the disposal will be carried out. The existence of the implied power is essential to the effective discharge of the Coroner’s functions. Moreover, to deny the coroner this implied power and require the issue to be litigated elsewhere would only prolong and exacerbate the distress which inevitably attends any such dispute. [underline emphasis added]
It can therefore be seen that the existence of the express statutory duty was the basis on which the Victorian Court of Appeal decided that the coroner had the implied power to decide questions as to where and by whom the disposal was to be carried out. The absence of such express statutory duty in the Northern Territory legislation is a critical point of distinction.
Under applicable Northern Territory regulations,[36] the coroner’s certificate pursuant to s 17 (1) Coroners Act 1993 is as follows, formal parts omitted:
I have authorised burial, and I am satisfied that no circumstance exists that can render necessary any further examination of the remains, any analysis of any part of the body or the making of any toxicological examination and that there is no reason why the body should not be cremated or taken out of the Northern Territory for burial or cremation.
It is tolerably clear that the certificate is intended to be confirmatory that the coroner’s work is done, and hence that there is no obstacle to the disposal of the body. The pro forma certificate does not even require that the coroner (or coroner’s clerk) name the person or persons who are to take control of the deceased’s body from the coroner. That is consistent with s 17 (1) Coroners Act 1993, which requires no more than that the coroner (or coroner’s clerk) issue a certificate permitting disposal of the body before it is released from the coroner’s control.
In summary, I doubt that a coroner in the Northern Territory has implied authority to determine to whom a deceased’s body should be released in the case of disagreement or conflict. The implication of such authority or power is not essential to the effective discharge of the coroner’s functions. However, even if it were accepted for present purposes that the coroner does have implied authority to determine to whom the body should be released, it does not assist counsel’s argument, because the coroner has made no such determination.
Counsel for Constance submits that the coroner made a decision that the body of the deceased should be released to Constance as his biological mother, such decision evidenced by an email sent to the parties and dated 24 June 2020.[37] The communication relied on is actually an email dated 25 June 2020, sent by a grief counsellor in the office of the coroner to Constance (and Elisabeth Heenan), to notify them as follows:
As discussed yesterday, the Coroner will not proceed with any direction for a further month. In the upcoming month it is hoped a mutually agreeable solution with regards to the funeral arrangements will be reached by both parties.
If no agreement can be reached by July 24th, and no further information has been provided or legal action has commended [sic], then the Coroner will release the body to the biological mother.
As things turned out, legal proceedings were commenced by both Rosemary and Constance. Moreover, the coroner appeared by counsel at the commencement of the hearing in this Court and indicated that he would abide this Court’s decision. In all the circumstances, even if (contrary to my finding) the coroner had made a determination, it would now be irrelevant.
Conclusion and orders
In my judgment, culture is a strong consideration in this case but the matters referred to in pars [3] – [5], [22], [23], [29], [30], [36] and [37] determine the outcome in favour of Rosemary.
I propose a formal order as follows:
After issue of the certificate referred to in s 17 (1) Coroners Act 1993, the body of the deceased be delivered into the possession of Rosemary Therese Baird to arrange the funeral and burial of the deceased.
The matter should be listed for mention as soon as possible. I will then make a formal order in accordance with [52], and any further orders which may be sought, consistent with these Reasons. The lawyers acting for Rosemary should submit draft orders for the Court’s consideration.
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[1]Affidavit Rosemary Baird sworn 20 August 2020, par 33 and annexure “D”. The co-ordinator of the YMCA Back2School program wrote that it was not common for the YMCA to re-enroll a student into the program multiple times, but an exception was made in the case of R because of “his history of positive engagement in the program” and the fact that he successfully re-engaged with Palmerston College after completing the program.
[2]Affidavit Rosemary Baird sworn 20 August 2020, par 36.
[3]Affidavit Rosemary Baird sworn 20 August 2020, pars 37 – 41.
[4]It should be noted, however, that Constance says that R had already been baptised, as a baby. The baptism is said to have taken place at Garden Point, Melville Island. No record of that baptism was tendered in evidence. However, nothing turns on whether or not there had been an earlier baptism.
[5]The Iwaitja people’s traditional lands are in the eastern Cobourg Peninsula. The Kaytetye’s traditional lands are in the Tennant Creek/Barrow Creek area, south of Warramungu lands.
[6]Affidavit Rosemary Baird sworn 20 August 2020, pars 18, 21.
[7]Affidavit Rosemary Baird sworn 20 August 2020, par 19.
[8]Mr O'Gallagher's name appears as the father of the child on the deceased’s birth certificate. However, Rosemary claims that, at some past time, when Mr O'Gallagher was requesting access rights to R, a family meeting was held at which Mr O'Gallagher was told that, if he wanted access, he would have to undergo a DNA test to confirm his paternity. According to Rosemary, the DNA test did not confirm Mr O'Gallagher's paternity of the deceased – see affidavit Rosemary Baird sworn 20 August 2020, pars 28 and 29. While conceding that she does not/did not have the results of the DNA testing of Mr O'Gallagher, Constance says that she does not think that he is the biological father of the deceased; rather she says that she considers her husband Gerry Heenan to be the biological father of R – affidavit Constance Purutatameri sworn 21 August 2020, par 14. The basis on which Constance considers Gerry Heenan to be the biological father of R is unclear.
[9]Affidavit Constance Purutatameri sworn 21 August 2020, par 16.
[10]Affidavit Constance May Puruntatameri sworn 31 July 2020, par 17. It may be noted that in her affidavit sworn 20 August 2020, par 66, Rosemary describes incidents indicating instability in accommodation arrangements and significant neglect of the child by Constance.
[11]In her affidavit sworn 20 August 2020, par 70, Rosemary asserts that, when R was a young boy, Constance never visited her home in Palmerston to visit him or spend time with him. She also denies that any other members of the Puruntatameri family would visit her home to spend time with him. However, it is quite possible that R saw Constance and her family members at the home of other relatives in Palmerston.
[12]Affidavit Rosemary Baird sworn 27 July 2020, par 17.
[13]Affidavit Rosemary Baird sworn 20 August 2020, par 73.
[14]Affidavit Nikita Heenan sworn 21 August 2020, par 13.
[15]Affidavit Rosemary Baird sworn 20 August 2020, par 81.
[16]Affidavit Nikita Heenan sworn 21 August 2020, par 15.
[17]Affidavit Constance Puruntatameri sworn 21 August 2020, pars 29 – 35.
[18]Affidavit Rosemary Baird sworn 20 August 2020, par 77, and exhibit G (copy text messages)
[19]Affidavit Nikiti Heenan sworn 21 August 2020, par 13, although she advances an explanation at par 15.
[20]Affidavit Elisabeth Heenan sworn 21 August 2020, pars 13-20.
[21]Affidavit Rosemary Baird sworn 20 August 2020, par 89.
[22]Affidavit Rosemary Baird sworn 20 August 2020, par 10.
[23]Rosemary also refers to "a legal adoption under Aboriginal Kinship Law", it being common practice for sisters or sister cousins to take on the parent and mother role of a sister’s or cousin’s biological child.
[24]Affidavit Rosemary Baird sworn 20 August 2020, par 59.
[25]Affidavit Rosemary Baird sworn 20 August 2020, par 61.
[26]Smith v Tamworth City Council (1997) 41 NSWLR 680, at 691F.
[27]Smith v Tamworth City Council (1997) 41 NSWLR 680, at 694B.
[28]Calma v Sesar and anor (1992) 2 NTLR 37 at 42; 106 FLR 446 at 452. The passage cited was approved by the South Australian Full Court in Jones v Dodd (1999) 75 SASR 328 at [52] – [53].
[29]Plaintiff's Outline of Submissions, 7 September 2020, par 12.
[30]Coroners Act 1993, s 3, definition of “senior next of kin”.
[31]Coroners Act 1993, s 16 (1)(c)(i).
[32]Coroners Act 1993, s 22. The coroner’s obligation is to take reasonable steps to advise the senior next of kin of the deceased of the direction that an autopsy be carried out.
[33]Coroners Act 1993, s 24 (2).
[34]Gilliott v Woodlands [2006] VSCA 46.
[35]Gilliott v Woodlands [2006] VSCA 46 at [20], per Maxwell P and Charles JA.
[36]Coroners Regulations 1994, regulation 15, Form 4.
[37]Affidavit Constance May Puruntatameri sworn 21 August 2020, par 39, annexure “C”; Plaintiff's Outline of Submissions, 7 September 2020, par 10.
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