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

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

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.
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.
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.
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.
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.
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…

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.

Continue reading Derwen and Ling

Details

AGLC: Derwen and Ling [2008] FamCA 644
Case: [2008] FamCA 644
Decision Date: 22 July 2008

CaseChat Overview and Summary

The case of *Derwen and Ling* concerned a dispute between the parties regarding [briefly state the nature of the dispute, e.g., a contractual disagreement, a property boundary issue, a family law matter]. The matter was heard and determined by Justice Cronin.

The central legal issues before the Court were [state the primary legal questions the court had to answer, e.g., whether a valid contract existed, the interpretation of a specific clause, the application of a particular statute]. The Court was required to consider [mention any specific areas of law or evidence that were crucial to the determination].

Justice Cronin's reasoning focused on [explain the court's approach, e.g., the interpretation of the relevant contractual terms, the application of established legal principles concerning negligence, the assessment of evidence presented by both parties]. The Court applied [mention key legal principles or precedents, e.g., the principles of contractual interpretation as laid down in *Codelfa Construction Pty Ltd v State Rail Authority of NSW*, the test for causation in tort law].

The Court ultimately ordered that [state the final outcome or orders made by the court, e.g., judgment be entered for the plaintiff, the claim be dismissed, specific declarations be made].

Orders