Farmer-Woods v Woods - [2024] WASC 138

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FARMER-WOODS -v- WOODS [2024] WASC 138
CORAM:   COBBY J
HEARD:   19 APRIL 2024
DELIVERED          :   22 APRIL 2024
FILE NO/S:   CIV 1367 of 2024
BETWEEN:   TERIKA KIANNA LEA FARMER-WOODS
Plaintiff
AND
DOROTHY WOODS
Defendant

Catchwords:

Burial rights - Person dying intestate - Where dispute arose between the deceased's wife and daughter as to appropriate funeral arrangements - Whether the deceased should be cremated or buried - Whether it is appropriate to release the deceased's body to the person who appears most likely to be granted administration of the deceased's estate

Legislation:

Administration Act 1903 (WA), s 14

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	C A Bahemia
Defendant	:	A E Williams

Solicitors:

Plaintiff	:	Carol Bahemia Lawyers
Defendant	:	Kimberley Community Legal Services Inc

Case(s) referred to in decision(s):

Bennell v State of Western Australia (2006) 153 FCR 120; [2006] FCA 1243
Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458
Hart v Cooper [2023] WASC 132
Liao v State of New South Wales [2014] NSWCA 71
Williams v Williams (1882) 20 Ch D 659

COBBY J:

The plaintiff is the daughter of an indigenous man who died on 28 February 2024. He was just over 35 years old at the time of his death.
The plaintiff and the deceased are and were, respectively, of Noongar descent. The plaintiff's mother is deceased.
The defendant also has Noongar ancestry. She married the deceased on 22 April 2023. They remained married at the time of his death.
The plaintiff and the defendant disagree as to what arrangements should be made for the deceased. The plaintiff says that the deceased should be buried in accordance with Noongar custom. The defendant wishes to have the deceased cremated, so that she can keep his ashes with her.
The plaintiff's application is supported by the deceased's mother, one of his brothers, an uncle and a number of other persons.
The deceased's body is presently held by the Office of the State Coroner.
The State Coroner has recognised the defendant as the deceased's senior next of kin, and had intended to release the deceased's body to the defendant on 4 April 2024, the day the plaintiff commenced these proceedings.
As nearly two months have passed since the deceased's death, it is important that a decision be made without further delay, which is causing unnecessary grief to the parties and their families.
At the hearing, the plaintiff relied upon:
(a)a sworn statement of Debbie Ann Yarran filed 10 April 2024;
(b)the plaintiff's affidavit filed 16 April 2024;
(c)the affidavit of Taylah Ann Deliu filed 10 April 2024;
(d)the affidavit of Jennifer Rae Jones filed 18 April 2024;
(e)the affidavit of Leslie Woods filed 18 April 2024;
(f)the affidavit of Ezzard Flowers sworn 15 April 2024; and
(g)an affidavit of Mervyn Eades filed 18 April 2024.
In addition, the plaintiff sought to rely upon certain paragraphs of the judgment of Wilcox J in Bennell v State of Western Australia[1] regarding Noongar culture. I upheld the defendant's objection to that course, as findings in other proceedings do not constitute evidence in proceedings between unrelated parties.[2]
[1] Bennell v State of Western Australia (2006) 153 FCR 120; [2006] FCA 1243.
[2] See, for example, Liao v State of New South Wales [2014] NSWCA 71 [168].
The defendant relied upon her affidavit filed 12 April 2024. As the plaintiff had filed further affidavits since that date, I allowed the defendant an opportunity to give oral evidence limited to addressing any new matters arising out of those affidavits.
By agreement between the parties, no objection was taken to the evidence of various witnesses as to what the deceased had said regarding his wishes after his death.
As the matter stands, there are significant conflicts on the affidavit evidence. However, given the nature of the application, issues which would normally require, at the least, cross‑examination on the affidavits filed must be decided on the papers as they stand.
The relevant legal principles governing applications of this type were most recently summarised by Seaward J in Hart v Cooper,[3] as follows:
[3] Hart v Cooper [2023] WASC 132 [14].
(a)the court will ordinarily order that the body be released to the executor of the deceased's will;
(b)if there is no will, the court will ordinarily order that the body be released to the person who appears to be on the state of the evidence before the court to be the person most likely to receive a grant of administration of the intestate estate (who will ordinarily be the person with the greatest interest in the estate);
(c)however, the above is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. The approach to be taken, and the weight to be given to the various considerations, depends upon the particular circumstances of the case;
(d)other factors (to the extent they are known to the court) which may be relevant to the determination include:
(i)cultural considerations;
(ii)the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased, including children;
(iii)the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties attendant upon competing proposals;
(e)in determining the person to whom a deceased's body should be released, the court is not required to make any final determination of who is entitled to the intestate estate or administration of the estate. In many cases the court will not be in a position to fairly and properly make such a final determination. Disputes about the release of [a] deceased's body should be resolved as soon as possible after the death as it would be an affront to the dignity of the deceased and the emotional well‑being of those close to the deceased for the funeral to be delayed for many months after death to allow questions of interest and entitlement to be fairly and properly resolved; and
(f)in proceeding in an expedited way, the court will not usually need to resolve every factual dispute that may be relevant to the grant of administration or undertake any extensive cross‑examination. (citations omitted)
It is agreed that the deceased did not leave a will. There has been no application for the grant of letters of administration. As the plaintiff concedes that the value of the deceased's estate does not approach $472,000, the defendant, as the deceased's wife at the time of his death, is the person likely to be entitled to obtain a grant if any application were to be made.[4]
[4] Section 14 of the Administration Act 1903 (WA).
There is no suggestion that the deceased's extended family lacks the resources to bury the deceased, and there is evidence that the defendant has the resources to meet the costs of his cremation.
The evidence as to what were the deceased's wishes as to what should be done following his death is contradictory. While a person has no right to dictate what will happen to his or her body after their death,[5] his or her wishes are a matter to be taken into consideration.
[5] Williams v Williams (1882) 20 Ch D 659, 666.
The evidence of Taylah Ann Deliu was that she was in a relationship with the defendant for a period.[6] She says that the deceased spoke with reverence about his late father, 'expressing a desire to remain close to his heritage', and that the deceased 'held strong cultural beliefs, including a preference for burial over cremation'. Those conversations must have occurred, however, some time before the deceased's marriage to the defendant.
[6] It was common ground that the deceased had been unfaithful to the defendant during their relationship.
The evidence of a brother of the deceased, Leslie Woods, is that the deceased came to his (Leslie's) house in Katanning at 5.00 am on Sunday, 11 February 2024. Mr Woods observed the deceased to be 'distressed and on drugs'. The deceased told him that he had been awake for a week.
Mr Woods' evidence is that the deceased said to him 'when I die, I want to be buried and put on top of my Father in Tambelup'. He says, in essence, that during their conversation that morning the deceased was critical of his relationship with the defendant, that the deceased said he 'has had enough of life', and that he spoke of his relationship with the plaintiff's mother, who had died about five years ago.
Although Mr Woods tried to tell the deceased to sleep, 'he jumped in his car and said he was going to Perth'. However, the deceased 'smashed his car into two trees on the side of the road' 5 km from Katanning.
The deceased then returned to Mr Woods' house. He told Mr Woods that he did not want to go to hospital. Mr Woods' evidence is that he then asked the deceased whether he wanted Mr Woods to take him to the courthouse on the Monday to fill out a declaration stating that he (the deceased) wanted to be buried in Tambellup, but the deceased said that he did not want to go to the courthouse because he was on the run.
The deceased was arrested and imprisoned in Broome on about 15 February 2024. He was released on 26 February 2024, and travelled to Perth the next day to see his new granddaughter, being the plaintiff's daughter.
The plaintiff and her partner met him at the airport. The plaintiff's evidence is that during their conversation that day the deceased said to her 'please bury me with my Father' and 'I miss my Dad'.
The plaintiff also states that she had many conversations with her father after her mother had passed away, in the course of which the deceased told her 'a number of times' to 'please bury me with my Father'. Her evidence is the deceased did not ever tell her that he wanted to be cremated or that he 'was religious or had become a Christian'.
The defendant's evidence is that she commenced her relationship with the deceased in 2014, whilst he was incarcerated. In 2016, when the deceased was incarcerated in another prison, the defendant 'supported him in his court proceedings, visited him weekly, spoke to him every day' and they also wrote to each other. In 2019, the deceased, having been released from custody, stayed with the defendant for nine days until he was arrested for other offences. He was then imprisoned for approximately two years, during which time they maintained their relationship.
In around 2021 the deceased was granted home detention bail to live with the defendant in Bentley, Western Australia. As noted above, they married in April 2023. They moved to Albany in September 2023 and to Broome in February 2024.
The defendant stated in oral evidence that she and the deceased had been married in a Christian ceremony by a pastor of Noongar descent, and that the deceased's mother had been present at the ceremony. Her evidence is that the deceased attended church weekly with her and her children and was 'very involved in our Christian walk together'.
As to the deceased's wishes, the defendant's evidence was that, to the best of her knowledge, the deceased 'did not follow any cultural practices and did not mention any specific cultural practices he wanted for his remains or burial'.
The defendant says that while they were living in Albany the deceased 'researched cremations online', showed her a website about cremations and told her that he 'wished for his body to be cremated once he passed away so that I could carry him with' her. When she told the deceased that his family would likely want him to be buried, he said to her that did not matter because she was his wife and for her to 'make it happen'.
The defendant further says that she and the deceased visited his father's grave in 2023, which was neglected, and that the deceased told her that he did not want to be buried and left like his father.
The evidence does not allow me to draw any conclusion as to whether that occasion was connected in any way to the deceased's research into cremation. There is no evidence as to the context in which the deceased came to research cremation.
The defendant's evidence that the deceased wished to be cremated and the evidence of the plaintiff and Mr Woods is irreconcilable. If the evidence of the plaintiff and Mr Woods was to be accepted, the deceased had, at best, changed his mind by February 2024.
In her closing submissions, counsel for the defendant sought to characterise the plaintiff's position as disingenuous. As I understood it, the submission was based on the plaintiff having sought an order in her originating motion that the deceased be buried with her mother in Guildford, whereas her position at the hearing was that she wished the deceased to be buried with his father at Tambellup.
I do not accept the submission. First, the plaintiff was not legally represented when she commenced these proceedings, and they were commenced with some urgency. The plaintiff resides in Perth.
Secondly, the plaintiff resides in Perth, from which I infer that it would be easier for her to visit her father's grave if he were to be buried in Guildford. The evidence subsequently filed in support of the plaintiff's case, however, supported the position she adopted at the hearing, namely that the deceased had expressed a desire to be buried with his father, and that position is consistent with Noongar cultural practices.
Thirdly, the deceased died on 28 February 2024. There is no evidence as to the circumstances in which he died, other than that the Coroner's reasons for intending to issue a certificate to the defendant state that he was declared deceased at 32 Goodall Street, Gosnells and that the cause of death was currently unascertained, pending the results of toxicological analysis. The weight to be given to the deceased's statements to his brother Leslie Woods and the plaintiff could vary considerably in the light of information as to how the deceased died.
Without knowing more of the context in which the deceased came to make the statements attributed to him by Mr Woods and the plaintiff, I am not prepared to find their evidence inherently incredible.
I have not overlooked that the weight to be given to the deceased's statements to Mr Woods also has to be considered in the context of the deceased, on his own admission, not having slept for a considerable time and being drug affected, but, as matters stand, it is impossible to resolve the discrepancies in the evidence as to the deceased's wishes. I bear in mind that it is possible that the deceased told various persons what he thought that they may have wanted to hear at the time, or that he said different things on different occasions in differing circumstances.
As to the applicable cultural considerations and the wishes of the deceased's close relatives, the deceased's mother, his daughter (the plaintiff), his uncle, a brother, and other extended family all wish the deceased to be buried with his father in Tambellup. All of the deceased's family who have given evidence, with the exception of the defendant, are opposed to cremation.
The evidence of the deceased's mother is to the effect that cremation is not in accordance with his family's cultural, spiritual and traditional beliefs. Her evidence is that the prospect of the deceased being cremated is very distressing to her, and that her family, including the deceased's children and his granddaughter, need to be able to visit his grave to grieve and for cultural reasons.
Mr Ezzard Flowers, who described his relationship to the plaintiff as being her 'Pop' on her father's side, gave evidence that he is a Koreng elder, and that the deceased was a 'cultural man', who had been brought up in his culture and respected it.
Mr Flowers' evidence is that the traditional Noongar funeral process involves 'respecting the life of the deceased's spiritual remains back to home country', being the country of the deceased's birth. His evidence is that Noongar custom is that the mother of a child becomes a symbolic beneficiary of the child's body at death, and that Noongar belief is that the deceased's spiritual remains are 'trying to get back to his country of birth where his spirit is yearning for'.
The evidence of Mervyn Eades, who is not related to the plaintiff, is that '[c]remation is a Westernized burial practice that should never be done to a Noongar person' and that Noongar cultural burial 'is for ones Spirit to rest after life'.
In the course of the hearing, counsel for the defendant stated that the defendant was not suggesting that the deceased was 'not Noongar', did not identify as Noongar, or 'did not connect with his culture'.
The evidence does not disclose the extent to which the deceased had embraced Christianity, or when he did so, although I accept that a person may adopt Christianity and continue to identify as Noongar.
In the course of argument, I drew to the parties' attention the reference in the Aboriginal Benchbook for Western Australian Courts to the indigenous belief that '[w]ithout proper ceremonies, the deceased's spirit cannot take its place in the afterlife but [will] be caught between death and future life'.[7] That proposition did not appear to be contested.
[7] Attributed to Broome R, Aboriginal Australians (2^nd ed, 1994) 20.
There is no evidence of the defendant's ability to travel to Tambellup to visit the deceased's grave if I were to determine that he should be buried there, but I am satisfied, given that the defendant resides in Broome, more than 2200 km from Tambellup, that doing so would cause her difficulty.
Before coming to the decision I have reached, I adopt what was said by Doyle CJ in Dodd v Jones:[8]
Sadly, the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weigh the competing claims and arrive at what would one would truly call a legal judgment. I understand and respect the wishes and beliefs of [the parties]. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party.
[8] Dodd v Jones [1999] SASC 458, (1999) 205 LSJS 105 [36].
I have determined that, in the particular circumstances of this case, the ordinary rule should not be applied, and it should be declared that the plaintiff is entitled, as against the defendant, to have the body of the deceased delivered to her for the purposes of making burial arrangements.
I have come to that determination for the following reasons.
First, the defendant's decision to have the deceased cremated appears founded on her firm belief that was what he wished.
I have determined, however, that I am unable to be satisfied what the deceased intended should happen following his death. In coming to that view, I have had regard to the defendant's concession that it is not suggested that the deceased did not connect with his culture. When considered with the other evidence regarding the deceased's beliefs, I am not satisfied that the deceased had fully embraced Christianity, and with it, cremation, separately from what he said to the defendant.
Secondly, with the exception of the defendant, the deceased's living close relatives appear united in the view that the deceased should be buried at Tambellup with his father. Those persons include the deceased's mother, his daughter, his brother, his uncle and his uncle's partner of long standing.
I have not overlooked that the defendant's views are also religious and spiritual in nature. Her desire to keep her husband's ashes with her is understandable, and one would ordinarily expect the wishes of a spouse regarding funeral arrangements to be respected.
However, I have ultimately placed significant weight on the fact that the defendant wishes to cremate the body of the deceased, rather than to bury him.

On the evidence before me, limited as it is, cremation is not acceptable in Noongar culture, whereas burial is an acceptable funeral custom in Christianity. Nor, if the deceased were to be cremated, would there be any opportunity for the deceased's other family members to visit his grave.
Although the defendant did offer in the course of her oral evidence to give one half of the deceased's ashes to his family, that did not appear to resolve the impasse between the parties.
While I acknowledge that the defendant is seeking to give effect to her late husband's wishes in taking the course she has, as I cannot be satisfied that the deceased remained of that view at the time of his death, I consider that this is a case where Noongar cultural and spiritual beliefs should prevail over the claim of the defendant as the deceased's wife and the person most likely to be entitled to obtain a grant of letters of administration.
I appreciate, and fully regret, that if the deceased is buried at Tambellup, the defendant will suffer distress. I also recognise that the possibility of visiting the deceased's grave will be little, if any, consolation to the defendant, especially given the distance between her current residence and Tambellup.
Finally, I express the hope that the plaintiff will recognise that the defendant's views are honestly held, and so inform the defendant of the funeral arrangements that are made and allow her to attend the funeral.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
22 APRIL 2024