Derwen and Ling

[2008] FamCA 644

FAMILY COURT OF AUSTRALIA

DERWEN & LING [2008] FamCA 644

FAMILY LAW – PROPERTY – Whether cremated ashes of deceased chid constitute property – Jurisdiction of the Court – Discretionary relief pending further order or agreement

Family Law Act 1975 (Cth)

Leeburn v Derndorfer [2004] VSC 172
Martiniello and Martiniello (1981) FLC 91-050
Re Dovey; ex parte Ross (1979) FLC 90-616
R v Ross-Jones; ex parte Green (1984) 156 CLR 185
Stowe and Stowe (1981) FLC 91-027

APPLICANT: Mr Derwen

RESPONDENT: Ms Ling

FILE NUMBER: MLF 2806 of 2006

DATE DELIVERED: 22 JULY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 16 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SPICER

SOLICITOR FOR THE APPLICANT: KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT: MR TESTART

SOLICITOR FOR THE RESPONDENT: BERGER KORDOS

Orders

1. That until further order the container and its contents said to be the container holding the ashes of the child … (deceased) currently in the possession of Mr Barry Berger remain in his custody unless otherwise agreed in writing and signed by the parties.

2. That if either party wishes to conduct forensic tests upon the said container or its contents, then provided that reasonable notice is given to all parties as to the name and qualifications of the forensic scientist and the nature of the proposed tests together with an assurance that any results will be released to all parties, Mr Berger may release the container and its contents therein to such forensic scientists for that purpose.

3. That whilst the container and its contents remain in the custody of Mr Berger, it may be produced for inspection by the appropriate authorities at the Altona Crematorium for the purposes of identifying whether that container was produced by or belonged to, the said crematorium at the time that it was released to the wife on 6 June 2008.

4. That whilst the container and its contents remain in the custody of Mr Berger, each of the husband and the wife and the children of the parties’ relationship may in the presence of Mr Berger or his authorised delegate, view and handle the container for the purposes of fulfilling any cultural, social or religious observance in which the parties may wish to participate but to that end, the container shall not be removed from the offices of Mr Berger without the written permission of both parties.

5. That in so far as any party desires to view the said container, the reasonable convenience of Mr Berger shall be a determining factor as to the period of any such viewing or observation.

6. That the letter dated 11 July 2008 from Berger Kordos, Lawyers to Kennedy Wisewoulds be marked as Exhibit “A” and remain on the court file. 

NOTED that publication of this judgment under the pseudonym Derwen & Ling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2806  of 2006

MR DERWEN

Applicant

And

MS LING

Respondent

REASONS FOR JUDGMENT

1. The parties’ child died tragically at the age of 3½ years in June 2007.  He was known as C. A coronial inquest may be held later in 2008 into his death. 

2. In June 2007 at the Altona Crematorium, C was cremated.  His remains were held there for a year.  Because there was a prospect that after the year, his ashes would be destroyed, the husband applied on 3 June 2008 for some orders. 

3. The orders sought were that pending an “organised scattering” of the child’s ashes, both husband and wife do all things necessary to cause his ashes to be released to the husband for safe keeping.

4. The orders sought included that the husband be permitted to hold a funeral service prior to the organised scattering of the ashes.

5. Importantly for my purposes, the following order was sought:

   That the Husband and Wife hold a service to scatter [the child’s] ashes at [P] or such other location as agreed, on such date as agreed between the parties, but failing agreement at [P] [in] October 2008 with all family and friends of the husband and wife being invited and permitted to attend.

6. The husband and wife separated some years ago.  They have litigated over their children. The remaining children are W 9 and J 8.

7. This heart-rending tragedy affects everyone. 

8. On 5 June 2008, Senior Registrar FitzGibbbon had the parties and their lawyers present and, in so far as they are relevant for my purposes, the following orders were made:

   1.That on 15 June 2008 at 10.00 am or at such other time as agreed between the parties the husband and wife hold a service at [N] Pier to scatter the ashes (“the service”) of the child of the marriage, namely [C] born […] January 2004.

   2.That the husband and wife do all such acts and things necessary to cause [C’s] ashes to be released by the Altona Crematorium to the husband on 6 June 2008.

   3.That the husband maintain and contain [C’s] ashes in exactly the same condition as he receives them from the Altona Crematorium, pending the service.

   4.That the husband be permitted to hold a funeral service (“the husband’s funeral service”) with [C’s] ashes being at the husband’s funeral service, to be held prior to 15 June 2008.

9. On the face of the orders, the goodwill between the parties at least in respect of putting the child to rest seemed clear.  That was not to be.

10. On 23 June 2008, the wife filed an application that the husband be dealt with for contravention of the order made on 5 June 2008. 

11. The contravention application alleged:

    The respondent [the husband] without reasonable excuse failed to maintain and contain [C’s] ashes in exactly the same condition as he received them.

12. In addition, the wife alleged that the husband had without reasonable excuse, failed to hold a service to scatter the ashes of the child.

13. On 8 July 2008, the husband filed an application seeking that the wife be dealt with for contravention.  He alleged, inter alia:

    That the respondent [the wife] without reasonable excuse did not do all such acts and things necessary to cause the ashes of [the child] to be released by the Altona Crematorium to [the husband], and instead had the ashes released to her.

14. Extraordinary though it may seem, the parties’ goodwill in relation to the scattering of the ashes of their 3½ year old child has now completely evaporated. 

15. Each party filed an affidavit.  The wife says that she signed minutes at the Court on 5 June 2008 but left without being given a copy of the orders.  I have read a copy of the minutes.

16. The husband filed an affidavit.  Notwithstanding what appeared to be the agreement between the parties incorporated into orders, negotiations went on, according to the husband, about meeting the wife at the crematorium to collect the child.

17. It is not appropriate nor necessary for me to determine any of the factual issues in this case nor for that matter, to set out much of the detail in the parties’ respective affidavits.  Both parties say that when the ashes of the child were to be scattered, the container was not the right one and, on one view, what was in it was simply sand.  What happened to the container and more importantly, the child’s ashes is a matter that will ultimately have to be determined.

18. The respective contravention applications came before me in a very busy Duty List.  Having regard to the basis upon which the parties were litigating, I determined that I did not have sufficient time to hear what was effectively an allegation each by the other of contravening the court orders the consequences of which if found proved, could include sanctions.

19. The complications are compounded by the fact that there is a significant dispute about where the child’s ashes are if they are not in fact in the container which is currently held by a solicitor on behalf of the parties.  I made very clear to the parties that I was not in a position to hear and determine the matter.  I have allocated some time for the contravention applications to be so determined later in 2008. 

20. Mr Testart for the wife made an oral application for an injunction relating to the container held by his instructing solicitor.  Having regard to the circumstances of the matter, I determined that I had the power to determine whether I had jurisdiction[1] and then, if appropriate, jurisdiction to at least make holding orders. 

    [1]          Yunghanns (1999) FLC 93-029

21. From a jurisdictional point of view, the starting point is s 8 of the Family Law Act 1975 (Cth) (“the Act”). That provision says that proceedings by way of a matrimonial cause shall not be instituted except under the Act. The Court is then referred to s 4 and in particular, the definition of “matrimonial cause”. Each party referred me to the provisions which give rise to the power to exercise the provisions of s 114 of the Act.

22. Section 114 refers the Court back to the definition of matrimonial cause in sub-s 4(1). For my purposes, the relevant provision in the definition of matrimonial cause is:

    (e)proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship…

23. The critical question is whether or not this is a proceeding for an injunction arising out of the marital relationship. If it is, then the provisions of s 114(1) of the Act apply and the Court can make an injunction in relation to the property of a party to the marriage if it considers it proper to do so. Sad as it may sound, the container and whatever its contents are, may very well be property. That may be an issue to be determined on the next return date of the contravention applications.

24. There is considerable dispute in this case about not only who owns the container but also its contents.  However, that is not a basis upon which to refuse to grant the relief sought by the wife.  (See Stowe and Stowe (1981) FLC 91-027 and Martiniello and Martiniello (1981) FLC 91-050).

25. As to the relevance in this oral application of the definition of “matrimonial cause” in s 4(1)(e), Gibbs J (as he then was) considered the matter in Re Dovey; exparte Ross (1979) FLC 90-616. His Honour referred to the fact that an order or injunction could only be made under s 114 with respect to the matter to which the proceedings related. His Honour said that the “circumstances arising out of the marital relationship” was very wide in scope. That particular phrase has been contemplated in a number of cases.[2]

    [2]          Mills and Mills (1976) FLC 90-079; Farr and Farr (1976) FLC 90-133; Gibb and Gibb (No 2) (1979) 90-694.

26. Mr Testart said that in respect of jurisdiction, notwithstanding that the parties consented to orders in June 2008, there was a question about the power of the Court to make the injunctive orders that he was in fact seeking.  He referred me to the authority of the High Court in R v Ross-Jones; exparte Green (1984) 156 CLR 185 in which Gibbs CJ said that in cases like this, there should be a holding order and the court should err on the side of caution.

27. Mr Testart said that if jurisdiction was then overcome, the “property” should be held by one of the lawyers pending the hearing of the contravention applications.  It is clear that there is no trust between the parties.  Mr Testart said that the Court should make the order on the facts of the case that were known to it.

28. Mr Spicer for the husband said that he was taken by surprise by the wife’s attitude.  He pointed to the fact that the issue before the Court related to the contravention of orders.  He said that the wife had not sought that the orders of June 2008 be set aside and no suggestion that the application for contravention brought by the wife was being withdrawn.  The starting point therefore was that the orders were valid and enforceable.

29. Without deciding the issue, I make two points about that submission.  The first is that, and this was not contentious, the parties cannot consent to give jurisdiction to a court which the court cannot give to itself.  The second is that if an order is made by the Senior Registrar, it is pursuant to the delegated power.  It is the responsibility of the judges of this Court to supervise the exercise of that delegated power and if satisfied that it is not appropriately exercised, to take appropriate action.

30. It is not a matter about which I need to make a decision today as to whether or not the orders were appropriately made within jurisdiction.  The issue that I am asked by the wife to determine is the holding position until the question of jurisdiction can be more appropriately canvassed and argued.

31. Mr Testart for the wife referred to the issue as one of “bailment”.  He strongly opposed the “bailment” of the “box” to the husband.

32. Here, there is a significant dispute as to what is in the container and whether the container was ever in the hands of the crematorium at Altona. It is distinctly questionable as to whether it is property of either party in this case for the purposes of s 79 of the Act. However, as Gibbs CJ pointed out, I have to deal with the matter on the facts of the case as they are known to me. I am satisfied in this case that for the purposes of the interim period that I am required to cover, this is property for the purposes of s 114 of the Act.

33. Counsel for the husband strongly argued that the matter should be simply adjourned and the container released to his client.  He pointed to the fact that the orders made on 5 June 2008 clearly provided for the husband to “maintain and contain” the child’s ashes pending the service that was to take place.  That order was consented to by the wife.  However, and for reasons which are not at all clear on the affidavit material of the wife, it seems that there is some dispute about just what the order was.  On a simple reading of not only the sealed order but the minutes attached to the Court’s file, I cannot see any other interpretation of the order than the one put by counsel for the husband.

34. However, what is abundantly clear is that there is no trust between either of the parties.  It may become a significant issue as to whether the container let alone its contents were ever in the hands of Altona Crematorium.  That must have a significant potential impact upon one or possibly both of the contravention applications yet to be determined. 

35. In his affidavit, the husband said when the container was opened that he was in shock when the wife told W that his father had taken C’s ashes.  According to the husband, he asked the wife where the ashes were but she “kept saying” that he had taken them.  According to the husband, he felt an overwhelming sense of sadness and “knew” that he could do nothing to make the wife tell him what she had done with the child’s ashes.

36. For her part, the wife said in her affidavit that she collected the canister on the day after the orders were made.  She made the observation that the container never left her sight and photographs were taken of it.  She then said that she sent a text message to the husband to indicate that she had the ashes and that he had the option of picking them up when he picked up W from school.  At a meeting point that day, according to the wife, the husband simply snatched the container from his son and walked away.  It was not until the subsequent meeting that the issue about whether that was the same container and what it contained arose. 

37. What is distressing is that the surviving children were integrally involved in all of these events. 

38. Mr Testart pointed me to the decision of Byrne J in Leeburn v Derndorfer [2004] VSC 172 which was a dispute between parties in relation to the division of ashes of a cremated body under the Administration and Probate Act (Vic). Byrne J described ashes as being the subject of ordinary rights of property subject to the obvious qualifications that being the remains of a human being, they should be treated with appropriate respect and reverence. He distinguished ashes from that of a dead body in which there was no property. (See also Smith v Tamworth City Council (1997) 41 NSWLR 680 and AB v CD [2007] NSWSC 1474 (17 December 2007 unreported Harrison J). All those authorities do is make clear the “property” in ashes is definable. The question of ownership of the property is entirely different.

39. This is a dispute which cannot be easily resolved in another court in circumstances where the parties themselves have a connection by marriage, possibly property proceedings and a yet to be heard case which substantially affects the welfare of their children. It therefore must be a dispute arising out of their marital relationship. That being so, the provisions of s 114 of the Act can apply. It is important to note that in s 114, a court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate including (but not therefore limited by) the matters set out in sub-paragraphs (a) to (f). Amongst those provisions is that the Court can make an order for an injunction in relation to the property of a party to the marriage.

40. Here, the parties are before the Court in relation to allegations of breaches of court orders.  Those orders must have some connection with the issue of property.

41. It may be when the Court ultimately comes to hear the contravention applications, even though jurisdiction may not be a problem, the resolution of exactly what happened proves impossible having regard to the various standards of proof that have to be established in a contravention application by each party.  All parties will need to bear in mind that what should be really endeavouring to achieve is to put to rest their infant son in a way which they had agreed.  What they are doing may not be something that the Court can resolve having regard to their particular focus on seeking some form of sanction for past conduct. 

42. Ultimately, I am required by s 114 to only make such order as I consider proper. It is clearly a discretionary relief. Having regard to the assertions made by each party of the other, the absence of any trust in each other and the fact that there may need to be further forensic steps taken by one or both parties, it is my view that it is proper to make an order leaving the responsibility for the custody of the container and its contents in the possession of an officer of this Court. Both counsel conceded that their respective instructors and each other’s instructors were highly reputable people. Whilst each practitioner would have responsibilities as an officer of the court to ensure that nothing untoward occurred to the container and its contents, I do not have the same confidence in the parties to endeavour to override that privileged position that the practitioners have. To that end, notwithstanding the orders of 5 June 2008 which seem to me to be abundantly clear, I will order that the container and its contents remain in the custody of Mr Barry Berger pending further order or agreement in writing of both parties. In so far as either party wishes to undertake forensic inquiries or tests on the container or its contents, providing full details of those tests are provided with adequate notice to the other party including details as to the forensic scientist involved, I will order that the container and its contents be made available accordingly. I shall give liberty to apply on short notice should there be a dispute about those forensic procedures.

43. There is general consensus that inquiries need to be made of the crematorium and possibly even have some forensic tests undertaken not only about the container but possibly what is inside it.  I made an order that that was not to occur until I could consider the matter in some further detail.

44. Accordingly, I make the orders set out at the commencement of these reasons.

I certify that the preceding Forty Four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 July 2008