In the Estate of Tomlins: Little v Tomlins; Tomlins v Little - [2023] NTSC 7

CITATION:In the Estate of Tomlins: Little v Tomlins; Tomlins v Little [2023] NTSC 7
PARTIES:LITTLE, Kaye Maria
v

TOMLINS, Christopher Edward

AND

TOMLINS, Christopher Edward
v
LITTLE, Kaye Maria

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NOS:2022-02595-SC, 2022-03086-SC and
2022-03428-SC

DELIVERED ON:  19 January 2023
HEARING DATE:  16 January 2023
JUDGMENT OF:  Barr ACJ
CATCHWORDS:

PROBATE AND ADMINISTRATION – Burial rights – Dispute between parents of adult male – Right to arrange funeral and burial of the deceased – Order that body of the deceased be delivered to mother for funeral and burial
Administration and Probate Act 1969, s 22(1)(d), s 33

Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird [2020] NTSC 67, referred to.

Calma v Sesar and anor (1992) 2 NTLR 37, 106 FLR 446; Smith v Tamworth City Council (1997) 41 NSWLR 680, considered
REPRESENTATION:
Counsel:
Mr Tomlins Self-represented
Ms Little D Benson
Solicitors:
Mr Tomlins Not applicable
Ms Little Clayton Utz
Judgment category classification:    B
Judgment ID Number:  Bar 2301
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
In the Estate of the late Christopher Michael Tomlins: Little v Tomlins; Tomlins v Little [2023] NTSC 7
No.2022-02595-SC, 2022-03086-SC and 2022-03428-SC

BETWEEN:

CHRISTOPHER EDWARD TOMLINS

Plaintiff

AND:

KAYE MARIA LITTLE

Defendant

AND BETWEEN:

KAYE MARIA LITTLE
Plaintiff

AND

CHRISTOPHER EDWARD TOMLINS

Defendant

CORAM: BARR ACJ
REASONS FOR JUDGMENT
(Delivered 19 January 2023)

This litigation arises from an unresolved dispute between the parents of Christopher Michael Tomlins (“the deceased”) as to which of them should have the right to arrange the funeral and burial of their son.
The deceased was born on 25 June 1984. He committed suicide on 15 July 2022. He was 38 years old at the time of his death. Immediately prior to his death, and for about two years previously, he had been living at Yambah Outstation, his father’s outstation, which is about 80 km by road north of Alice Springs.
The deceased was born at the Regional Hospital in Geraldton. His birth certificate shows that his mother was then 20 years old and his father 25 years old. When he was about one month old, he was taken by his parents to live in Darwin. When he was approximately 2 years old, his parents separated and he then lived with his mother. They lived in the Northern Territory for a few years before returning to live in Geraldton.
The evidence of the deceased’s mother is to the effect that, during the time they remained in the Northern Territory, the deceased occasionally spent time with his father in Alice Springs, which was usually only on weekends. However, in a statement from the Bar table, the deceased’s father stated that the deceased lived with him and his partner (described as the deceased’s stepmother) for a period of 2 years, possibly 3 to 4 years, when the deceased was a 5 to 6 year old boy. Mr Tomlins said that his son was not living with his mother at that time. The deceased was said to have attended Yipirinya School (a primary school in Alice Springs) for a period of 2 years. There was no supporting evidence for the claims made by the deceased’s father (in contrast, for example, to a confirmatory letter as to secondary school attendance tendered as part of the mother’s case). Moreover, because the statements were not foreshadowed in the father’s affidavit evidence, the mother and her lawyers did not have an opportunity to investigate and respond. This must, to some extent, diminish the weight which I place on the father’s claims.
In her affidavit evidence, the mother states that the deceased returned with her to live in Geraldton when he was approximately 4 years old. The intention was that they would be closer to the mother’s family.
Subsequently, the mother formed a relationship with Reginald Whitby. They had five children together. The deceased lived with his mother and his six stepsiblings for his entire childhood.[1]
The deceased attended primary schools in Geraldton: Allendale Primary School for Years 1 and 2, and Beachlands Primary School for Year 3, Year 4 and part of Year 5. He completed primary school in Dongara, a town approximately 45 minutes south of Geraldton, and then attended the Dongara District High School (from 1994 to March 1988). The deceased’s mother gave quite specific evidence about his schooling.
All education expenses, school fees and associated costs were paid by the deceased’s mother. She states that the father did not provide any form of maintenance or financial support to assist her in raising their son. She was the sole financial contributor and caregiver, with the support of Mr Whitby. The mother’s evidence in this respect is not contradicted by the father.
Shortly after the deceased left Dongara District High School, he returned to Geraldton with his mother. His mother was listed as his next of kin in the records of the Geraldton Regional Aboriginal Medical Service dating from 2005, when he was 21years old.
The details of the deceased’s life in the period 1998 to 2007 are unclear. The court was told that he spent some time in gaol, but the specific periods of incarceration are not in evidence. In 2007, still living in Geraldton, he formed a relationship with Lesley Smith. That relationship continued to 2012. The couple had 2 children: Michael who is now 13 years old and Christopher who is 12.
The deceased’s father told the court that the deceased and Lesley Smith visited him at Yambah Outstation when Ms Smith was pregnant with Michael. Leanne Tomlins, the father’s younger sister, told the court that the deceased and Ms Smith visited again when Michael and Christopher were very young.
When Michael was about three years old and Christopher about two years old, the children were placed in the care of the Western Australian Department of Communities Child Protection. The boys are still currently in care and live in Geraldton, either in foster care or at the Department’s residential hostel.
After the death of Mr Whitby in March 2013, the deceased’s mother moved to Perth. The deceased went with her. In or about 2015, when he was 31, the deceased moved out of his mother’s home to live with some friends in Fremantle. He continued to spend a lot of time with his mother.
In or about 2020, the deceased moved to Central Australia to live with his father at Yambah outstation. This was after the Covid 19 border closures imposed by the Western Australian government. His mother states, on the basis of discussions she had with her son at the time, that he wanted “to get to know his father”. He also told his mother that moving to Alice Springs would help with substance abuse issues.[2] Jamie-Lee Little, the stepsister of the deceased, states that he told her that he wanted to “go over there to start fresh with his dad and to get away from the drugs and alcohol in Geraldton”.[3]
The deceased did not return to live in Geraldton after he left for Alice Springs. However, his mother says that the deceased regularly told her when they spoke by phone that he wanted to “come home”; also, that he made Facebook posts between October 2021 and July 2022 saying that he missed his children and wanted to return home.[4] That is consistent with a significant Facebook post made by the deceased on 8 July 2022, in which he wrote:
Really want to go home had it here overdid my stay and nothing help me much here beside the hurt of being away from my kids only good thing is laying of [off] the speed and can’t drink when I want idgaf [I don’t give a fuck] wat anyone says but I love my alcohol and so wat if I’m a alcoholic sick of trying to do better going back my old ways be home soon
The deceased committed suicide a week after posting the message extracted in the previous paragraph. There was no obvious explanation for his decision to take his own life.
The deceased’s body is in the custody of the Coroner in Alice Springs. It would therefore be relatively straightforward for the deceased’s funeral to be held in Alice Springs and for his burial to take place at Yambah outstation. The deceased’s father has not provided evidence of funding for a funeral. He claimed that the Central Land Council purchase order to Desert Funerals Ltd, introduced into evidence as part of the mother’s case, was actually issued at his request. The father’s assertion is most unlikely, given that the relevant purchase order was issued in response to a quote from Desert Funerals Ltd which stated the “Place of Burial” as Geraldton, and the purchase order itself said “POB Geraldton”. The deceased’s father suggested that that could be a reference to place of birth in Geraldton, but in the context I do not see how that could be right, particularly given that the Desert Funerals Ltd quotation included an item for freight transport from Alice Springs to Perth.
Although I reject the deceased’s father’s contention that the Central Land Council’s purchase order to Desert Funerals Ltd was issued at his request, I am prepared to proceed on the basis that, if requested, the Central Land Council would provide funding to the deceased’s father in the same or a similar amount to that provided to the deceased’s mother.
For her part, the deceased’s mother has made arrangements for the burial of the deceased without unreasonable delay. Specifically, she proposes the transport of his body by air from Alice Springs to Perth, and then by road to Geraldton; and then a funeral service and burial to take place in Geraldton. She has obtained the necessary quotes and has received confirmation of funding from the Central Land Council and the Yamatji Southern Region Corporation.[5] The result is that, although a funeral in Alice Springs would be logistically straightforward, the mother has overcome her ‘logistical disadvantage’ by the arrangements she has entered into, and for which funding has been secured.
The deceased’s mother contends it is a tradition in her culture that the body of a deceased be buried in a place connected with that deceased’s mother. However, although the deceased’s mother has identified herself as an ‘Aboriginal Australian’, she does not identify her tribal culture and provides no evidence of any specific cultural tradition or practice or any independent evidence (from an anthropologist, or otherwise) to support the mother’s contention. Culture is not determinative of the competing applications in this case.
The deceased’s mother further supports her application as follows:[6]
I would like Christopher’s body to be buried in Geraldton as this is where he grew up, spent most of his adult life and is where our family is from. Geraldton is also where most of Christopher’s family and friends are located.
Christopher’s burial in Geraldton will enable his friends and family, including his children, to be near their father’s resting place to visit him as much as they would like to. If Christopher were to be buried in Alice Springs, his children friends and most of his family would be unable to visit his body regularly, or at all.
The deceased’s father told the court that his son actually spent “a lot of time” with him over the 38 years of his life. He brings his application to give effect to his son’s wishes. He is of the belief that his son wished to be buried in the family cemetery at Yambah outstation. His belief appears to be based on evidence contained in the affidavit of his younger sister, Leanne Tomlins:[7]
I am Godmother of the loved one, Christopher Michael Tomlinson.
I travel to Yambah Outstation, Snake Well, on a regular basis, 2 to 3 times a year.
Our loved one ... and I had a close relationship. He had spent Christmas and New Year’s with myself and my children at my place in Darwin before returning to Yambah outstation on the 12^th March 2022.
Whenever I visit Yambah outstation, myself and Daughters will often visit our cemetery, where my Father, Elder sister and extended family are buried. ....
During my last visit [to] Yambah Outstation around the end of April 2022, while doing a routine check on the cemetery, I had a discussion with our loved one ... about where I wanted [to be] buried. I told them that I wanted to be buried next in our row, to which our loved one ... replied that he would then be buried next to me. I believe our loved one ... wished to be buried at Yambah outstation.
Counsel for the deceased’s mother did not cross examine Leanne Tomlins, and so I am left to determine the weight to be attributed to her evidence about the deceased’s wishes. I note that the deceased’s mother does not provide any evidence as to the deceased having expressed a preference for his place of burial. The evidence of Leanne Tomlins suggests that the deceased stated his wish somewhat obliquely, and clearly in response to Leanne Tomlins’ expressed preference for her own burial place. On the evidence, this was the only occasion on which the deceased said anything about where he might have wished to be buried. I am not in a position to make any finding on the balance of probabilities, but it may be that the deceased was emotionally moved on the occasion that his aunt spoke to him about where she wished to be buried.
Whatever the deceased may have said to his aunt in late April 2022, it is clear that by 8 July 2022, he wanted to “go home”, a clear reference to Geraldton, where his sons were living. I refer to the Facebook post in [15] above. Not only did he want to go home, but he intended to do so; he ended the post with the words “be home soon”. To the extent that the wishes of the deceased himself are relevant, and to the extent that I can reliably draw any inference, it is significant that (1) he did not regard Yambah outstation as his home; (2) he wanted to leave Yambah outstation, even though he acknowledged that being there had helped him with his problematic use of amphetamines and alcohol; and (3) he was hurting being away from his children. Those matters make it unlikely that, at a time close to his death, he wished (or still wished) to be buried at Yambah Outstation. My inference as to the wishes of the deceased is not determinative of the competing claims of the parties, but adds support to the bases for the mother’s application set out in [21] above.
The deceased died intestate. His estate is very modest, having a total nett value of $2,600. The major asset is an unregistered 1982 Ford Falcon panel van said to be worth $2,000. Nonetheless, there is an estate. Under Schedule 6, Part IV, Item 1 of the Administration and Probate Act 1969, the deceased’s issue (his sons) are entitled to the whole of the intestate estate and would share the estate equally. They are the only ‘next of kin’ for the purposes of s 22(1)(b) of the Act, to whom the Court would grant administration but for the statutory bar that administration must not be granted to an infant.[8] It is therefore necessary for the court to grant administration to some person other than the deceased’s children, pursuant to s 22(1)(d) read with s 33 Administration and Probate Act 1969.
Both parents have made application for a grant of administration of the estate of the deceased. The father’s application was filed on 10 October 2022 and the mother’s on 21 November 2022.
I referred to the significance of the grant of administration in competing applications of this kind in Baird v The Coroner of the Northern Territory:[9]
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.
In the absence of orders made in favour of either party for the administration of the deceased’s estate, the parties rank equally in respect of a matter which is frequently considered to be determinant of disputes of this kind.
In Baird,[10] I noted the decision of Young J in Smith v Tamworth City Council,[11] where his Honour 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.[12] Martin J expressed a similar view 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”.[13] Notwithstanding these statements of principle, it is equally clear that each case must be decided on its own facts.
A period of just over six months has passed since the death of the deceased. The concept of burial without unreasonable delay is not particularly relevant now, not only because of the passage of time but also because the delay has not been ‘unreasonable’, at least not for the grieving parents and family members of the deceased.
The deceased’s father contends that the mother has been guilty of delay in the making of her application. I do not accept that contention. The parties participated in three rounds of mediation, and were unable to reach agreement. The mother’s lawyers wrote to the deceased’s father on 30 September 2022, putting their client’s case in detail and asking the father to agree to the release of the deceased’s body to enable the mother to finalise arrangements for the funeral and burial in Geraldton. The deceased’s father then made application for a grant of administration on 10 October 2022, but did not serve the mother (he was not required by law to do so). The deceased’s mother was informed by her lawyers only on 1 November 2022 that the father had filed the application. She then filed a caveat on 1 November 2022 and made her application for administration by originating motion filed 21 November 2022.
There are strong and compelling reasons for the funeral and burial of the deceased to take place in Geraldton. The deceased had spent most of his life in Western Australia and, although he lived in Alice Springs for the last 2 years of his life, it is clear on the evidence that he wished to return to what he regarded as his home in Geraldton. His last Facebook post is telling: I refer to my analysis in [24] above. Moreover, I accept the reasons advanced by the mother, extracted in [21] above. I consider that it is of great importance that the deceased’s two sons in particular are able to attend his funeral without any administrative impediment (on account of their being in Departmental care in Western Australia) or financial obstacles.
I make an order that administration of the estate of the deceased be granted to Kay Maria Little and, to the extent necessary, I further order that the body of the deceased be delivered into the possession of Kay Maria Little to enable her to arrange for the transport of the deceased’s body and the funeral and burial of the deceased in Geraldton, Western Australia.
I direct that the mother’s lawyers file draft orders in the registry for sealing.
--------------------

[1] The deceased was the eldest. His half-sister Jamie Lee Little was the child of the deceased's mother before she formed a relationship with Mr Whitby. The deceased’s other five siblings were the children of the deceased’s mother and Mr Whitby.

[2]Affidavit Kaye Maria Little promised 2 November 2022, par 36.

[3] Affidavit Jamie-Lee Little promised 7 November 2022, par 14.

[4]Ibid, par 38, referring to copies of various Facebook posts in annexure ‘D’.

[5] Affidavit Kaye Maria Little promised 12 January 2023, par 7 referring to annexure ‘A’, confirmed by CLC Purchase Order EPO 017807; and par 14 referring to annexure ‘C’. The name of the Aboriginal corporation was corrected at the hearing from ‘Yamatji Marlpa Aboriginal Corporation’ to ‘Yamatji Southern Region Corporation’.

[6] Affidavit Kaye Maria Little promised 2 November 2022, pars 44, 45.

[7] Affidavit Leanne Teresa Tomlins promised 12 January 2023, pars 2-6.

[8] Administration and Probate Act, s 22(3).

[9]Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Territory Coroner & Baird [2020] NTSC 67; 357 FLR 109; 20 ASTLR 90, at [31].

[10] Ibid at [34].

[11] Smith v Tamworth City Council (1997) 41 NSWLR 680

[12]Smith v Tamworth City Council (1997) 41 NSWLR 680, at 694B.

[13]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].