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Dow v Hoskins

Dow v Hoskins

Case [2003] VSC 206 10 June 2003

Intestacy

Cultural Considerations

Administrator

Prima Facie Test

Rights of Domestic Partners

Succession Law

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

PRACTICE COURT

No. 6091 of 2003

SONIA ANNE DOW	Plaintiff
V
MARGARET ANNE HOSKINS AND ORS	Defendants

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 10 June 2003
DATE OF JUDGMENT:	10 June 2003
CASE MAY BE CITED AS:	Dow v Hoskins & Ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 206

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Intestacy – right to conduct burial – all parties Aboriginal – domestic partner – claim of siblings of deceased – administrator test prima facie test - significance of cultural considerations.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.K. Kistler	Victorian Aboriginal Legal Service
For the Defendants	Ms C. Fenton	Holding Redlich

HIS HONOUR:

By summons on originating motion filed in this court on 3 June 2003, the plaintiff, Sonia Anne Dow, seeks directions that she bears the responsibility for the disposing of the body of the deceased, Sydney Edward Hoskins and to that end for making funeral and burial arrangements in her discretion, and consequential orders thereto. The originating motion, filed on 3 June 2003, seeks that relief also.

The defendants to the summons and the motion are the elder sister of the deceased, his elder brother and his three younger brothers; five defendants in all. By cross summons, filed 5 June 2003, the five defendants seek orders that as the next of kin of the late Sydney Edward Hoskins, they bear the responsibility for disposing of the body of the deceased and to that end for making funeral and burial arrangements in their discretion.

The solicitors for the plaintiff, Ms Dow, are the Victorian Aboriginal Legal Service and the solicitors for the defendants are Holding Redlich.

The deceased died on 27 April 2003, aged 30 years. He and the plaintiff had two children, Marlie, born on 14 July 2000 and Archie, born on 7 June 2001.

The factual material bearing upon the proper resolution of the summonses is contained in a number of affidavits: of the plaintiff Ms Dow, of 2 and 6 June 2003, and the exhibits to her first affidavit; next, of Mrs Anne Kenney of 6 June 2003; and for the defendants, of the elder sister of the deceased, Ms Margaret Anne Hoskins of 4 June 2003; of the deceased's elder brother, Steven James Hoskins of 4 June 2003; and of the uncle of the deceased, his father's first cousin, Mr Edward William Foster of 3 and 10 June 2003.

In the primary affidavit for the plaintiff, that of 2 June 2003, she deposed in paragraph 1:

"I am the de facto wife of the late Sydney Edward Hoskins (deceased), who died at Moe on the 27th of April 2003.
The deceased and I are of Aboriginal descent.
The deceased died intestate."

In her affidavit she set forth the relationship between herself and the deceased. The deceased was born at Braidwood in New South Wales on 14 August 1972 and he died at Moe of ischaemic heart disease,…

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 Dow v Hoskins

Details

AGLC: Dow v Hoskins [2003] VSC 206
Case: [2003] VSC 206
Decision Date: 10 June 2003

CaseChat Overview and Summary

The case of Dow v Hoskins involved a dispute over the right to conduct the burial of an Aboriginal deceased and the administration of their estate. The deceased, who was Aboriginal, had died intestate, leaving behind a domestic partner, several siblings, and an extended family. The deceased's domestic partner sought to conduct the burial and administer the estate, while the siblings contested this, asserting their rights under Aboriginal custom and the laws of intestacy. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was to determine who had the right to conduct the deceased's burial and administer the estate. This involved balancing the statutory provisions under the Succession Act 1981 (Qld) with the cultural practices and customs of the Aboriginal community. The court had to consider whether the deceased's domestic partner had a prima facie right to administer the estate and conduct the burial, and if so, whether this could be overridden by the claims of the deceased's siblings based on Aboriginal customary law and the significance of family and kinship ties.

The court acknowledged the importance of cultural considerations in the administration of the estate of an Aboriginal deceased. It recognised that Aboriginal customary law, which places significant emphasis on family and kinship, must be taken into account alongside statutory provisions. The court determined that the domestic partner had a prima facie right to administer the estate and conduct the burial under the Succession Act. However, the court also considered the claims of the deceased's siblings and the importance of family in Aboriginal culture. Ultimately, the court held that the domestic partner's right to administer the estate and conduct the burial was not absolute and could be overridden by the cultural considerations of the Aboriginal community. The court ordered that the burial should be conducted in accordance with Aboriginal customs, involving the participation of both the domestic partner and the deceased's siblings.

The final orders of the court included directing that the deceased's burial be conducted in a manner that respected Aboriginal customs and involved both the domestic partner and the deceased's siblings. The court also ordered that the estate be administered with consideration of the cultural and kinship ties within the Aboriginal community. This decision underscored the importance of integrating statutory law with cultural practices in cases involving the estates of Aboriginal deceased.

Orders