JONES v DODD No. SCGRG-98-896 Judgment No. S6769

[1998] SASC 6769

ESTATE OF RICHARD BARNEY JONES DECEASED
PADDY JONES v LAUREL MARIE DODD

Civil
Debelle J

This is an unfortunate dispute as to the place where a deceased person is to be buried. The right to the possession of a dead body for burial is a justiciable issue: Calma v Sesar (1992) 2 NTLR 237, and Burnes v Richards (unreported, Supreme Court of New South Wales, Cohen J, 6 October 1993).

The plaintiff is the father of the deceased.  He wishes to have his son buried in Oodnadatta.  In these reasons I refer throughout to the deceased as “the deceased” lest I offend by naming him.  I take that precaution even though he may not be a traditional Aboriginal.

The first defendant Ms Dodd is a woman with whom the deceased had lived in a de facto relationship for a period of about five years.  That relationship came to an end about ten years ago.  She lives with two children of that relationship in Port Augusta.  She seeks to have the deceased buried in Port Augusta.  She had retained the second defendant, an undertaker, to make the funeral arrangements.  The second defendant has not been served and has taken no part in these proceedings.  It is common ground, however, that he has agreed to abide the order of the court. 

The relief initially sought by the plaintiff was for an order restraining Ms Dodd from proceeding with the funeral arrangements she had made for the burial of the deceased at Port Augusta on 8 July 1998.  The parties have agreed that, although there is no claim by the plaintiff for the right to bury the body of the deceased or a cross-application to that effect by Ms Dodd, that is the question which the court should determine.  It is common ground that I am to decide that issue regardless of the state of the pleadings or formal applications. 

The deceased is of Aboriginal descent.  He died on 24 June 1998.  It is common ground that he died at or near Walatina Station which is near Marla.  His body is at present held by the Coroner.  The reason for that has not been proved.  However, it appears that there will be no difficulty in the Coroner releasing the body for burial. 

It appears that the deceased has lived for the greater part of his life either at Oodnadatta or in areas in the north of South Australia near Oodnadatta.  It is also clear that he has spent some of his life in Port Augusta.  It appears that he lived in Port Augusta for some years with Ms Dodd.  The precise period is not clear but it would appear on the affidavit evidence to be a period of less than five years.  The deceased also visited Port Augusta from time to time.  In recent years he has gone to Pt Augusta on at least three or four occasions in each year for the purpose of seeing his two children. 

The deceased has died leaving no Will and it appears that he has no assets, or at least insufficient assets, to justify a person applying for a grant of letters of administration. 

The plaintiff, the father of the deceased, lives in Oodnadatta.  The deceased's mother pre-deceased him.  The deceased is survived by brothers and sisters.  It is not entirely clear how many brothers and sisters he had.  The papers indicate that there are at least two surviving sisters and two surviving brothers.  The sisters are Mary and Christine Jones.  The brothers are David and Peter Jones.  Peter Jones appears to be the eldest child. 

The deceased has not married according to law.  As already mentioned he did, however, live in a de facto relationship with Ms Dodd for about five years.  The two children born of that relationship are Taryn Dodd aged 11 years and Clayton Dodd aged 10 years.  It is common ground that the relationship ended about 10 years ago, shortly after the birth of Clayton Dodd.  The deceased has, however, had access to his children and, as already mentioned, visited Port Augusta three to four times a year to see them. 

The plaintiff seeks to have his son buried in the cemetery at Oodnadatta where there is what he calls “a family row”.  I understand that to mean a row of burial plots of members of his family.  The plaintiff wishes his son to be buried in that family row.  He reinforces that desire by stating that he is the head of the family and that it is Aboriginal custom that the head of the family is the person empowered to make decisions in respect of family issues and land issues.  He adds:

“It is very important in our culture that the deceased is buried in the area so that his spirit can come back in animal form.  The area that my late son comes from is the Oodnadatta area.  It is very important in our culture that my late son be buried in Oodnadatta.”

The plaintiff says that his desire is supported by his two daughters Mary and Christine.  His daughter Mary has sworn an affidavit supporting the application.  She says that, about two months before he died, her brother had said to her in Port Augusta that he would never come back to Port Augusta and that he would be buried in Oodnadatta.  She also says that her brother wanted her to promise him that his de facto wife would not attend the funeral.  She says that she did not initially take her brother seriously but eventually promised to put his wishes into effect.  There is no affidavit from the sister Christine. 

The evidence that the deceased had expressed a desire to be buried in Oodnadatta is disputed by witnesses who gave evidence for Ms Dodd.  There are a number of such witnesses.  They include both Peter and David Jones, the brothers of the deceased.  Thus there is a dispute as to the wishes of the deceased, a dispute which extends to members of the family. 

Evidence was also given on behalf of the plaintiff by Ms Rose Lester who is a cousin of the deceased.  She is employed as a project manager at Walatina Station to which the deceased had come to work shortly before his death.  She said that she had spoken to the deceased from time to time about his wishes in respect of his burial.  She believes that she spoke to him on about three occasions on that topic, the last being in about May 1998 at Oodnadatta.  She said that the deceased always regarded himself as “an Oodnadatta home town boy”.  She said that he expected to be buried in Oodnadatta and that what he said in May 1998 was consistent with what he had expressed to her on other earlier occasions.  Ms Lester also gave evidence in her affidavit as to Aboriginal law and custom.  She says that she is of the same tribe as the deceased.  She adds:

“In the Aboriginal culture the head of the family is the person who makes the decisions about land issues and family issues especially in respect of connections with the land.  It is especially important in our culture that a person is buried in his geographical area so that his spirit can come back in the form of his totem.  If Richard is buried in the Port Augusta area then that is an area outside of the geographical area of our tribe.  Aboriginal culture would regard him as being lost to his family.  If the burial occurs in Port Augusta then tribal law would allow the person who authorised the burial to be speared as he/she did not follow the tribal law.  In our culture it is important that the deceased be buried as soon as possible.”

Her evidence that a person who authorised a burial in Port Augusta would be liable to be speared is disputed on behalf of Ms Dodd.  Evidence in an affidavit sworn by Mr Burton says that a spearing would only follow where a person had killed another.  It is not necessary to resolve the dispute as to the question of spearing.  It is sufficient to note that the undisputed evidence is that, according to Aboriginal law and custom, it is important that the deceased is buried in the area in which he had generally lived so that his spirit could come back to that area. 

In support of her application Ms Dodd has sworn an affidavit in which she states her desire that the deceased be buried at Port Augusta.  She says the deceased had expressed that desire to her.  She also refers to the grief expressed by the two children of her relationship with the deceased.  Each of the two children has also sworn an affidavit in which they express their love for their father, relating incidents in their life which endeared him to them, and stating how they would seek to have his grave near where they live so that they might tend it and thereby maintain some kind of a relationship with their deceased father. 

The rest of the affidavit evidence produced on behalf of Ms Dodd essentially consists of witnesses who say the deceased expressed a desire to be buried in Port Augusta.  Some state that he expressed a wish to be near his children in Port Augusta.  One witness says that the deceased wished his children to make the decision as to his place of burial.  Some also deposed to the close relationship between the deceased and his children.  It is unnecessary to recite the contents of each affidavit.  I mention that I have read all of the affidavits filed and have regard to the contents of each. 

Finally I note the evidence that the grandparents and some cousins of the deceased are buried at the Carlton Parade cemetery in Port Augusta. 

There is a clear conflict in the evidence as to the wishes of the deceased.  Neither party has sought to cross-examine the witnesses who swore affidavits on behalf of the opposing party.  Thus the evidence contained in the affidavits has not been tested.  Further, even if time had permitted the testing of the evidence, this is the kind of dispute where it would be very difficult to resolve the conflict in the evidence.  Ultimately, it might turn out to be one of those cases where a person has said different things to different people on different occasions or in different sets of circumstances.  In any event, the views of the deceased are not final.   A person cannot by will dispose of his own body: Williams v Williams (1882) 20 Ch.D. 659 at 666. It follows that desires expressed by the deceased as to the place of burial are not conclusive.

It is well established that there is no general right of property in the deceased body of a human being: Williams v Williams (supra) at 665. As a general rule, it is the executors or the administrators of the estate of the deceased who have the right of property in the body: see Calma v Sesar (supra), Burnes v Richards (supra), Smith v Tamworth City Council (1997) 41 NSWLR 680 and the cases cited therein. However, as the deceased died leaving no will, has no assets, and it is unlikely there will be any application for a grant of letters of administration, there is no executor and no administrator of his estate. In the absence of an executor or administrator, it appears that other persons have a duty to bury the body of a deceased person.

Ms Dodd herself has no legal right to the body of the deceased for burial. She had not been his de facto spouse for a period of about 10 years prior to his death. She could not, therefore, have applied for letters of administration: see s4 of the Administration and Probate Act, 1919.   In the absence of a surviving husband or wife, the right to burial vests in the next of kin, in order of their relationship to the deceased, that is to say, children of full age, parents, brothers and sisters or more distant kin: see Smith v Tamworth City Council at 691-693 It is obvious that I am speaking of degrees of kinship according to the common law and not according to Aboriginal customary law. In this case the children are aged 10 and 11 years respectively. They are not of full age. Thus, the next in the degrees of kinship at common law, as distinct from kinship in Aboriginal customary law, is the father of the deceased. He, therefore, has the right to the body for the purpose of conducting the burial. I will, therefore, make an order permitting the plaintiff to bury his deceased son.

I am very conscious of the fact that it has been necessary to resort to principles of common law to resolve this difficult and sensitive dispute.  In matters relating to burial, it is appropriate to have regard to Aboriginal law and custom.  In that respect it is relevant to note the undisputed evidence that, as the plaintiff is the father of the deceased and head of the family, he is the person empowered to make decisions in respect of family issues of this kind.  On this issue, the common law and Aboriginal customary law appear to coincide.

In reaching this decision, I have been very much aware of the deep-seated desire of Ms Dodds that her former de facto husband should be buried near where the children now reside and where it is likely they will continue to reside, at least in the immediate future.  I am also very conscious of the emotions of the two children and their very natural desire that their father will be buried near where they live so that they might tend his grave. 

Equally, there are strong desires among other members of the family that the deceased should be buried at Oodnadatta.  In emotional terms the conflict is incapable of resolution.  It is unfortunately necessary to resort to legal principle to resolve an issue which the parties themselves cannot resolve.  Without, I trust, being in any sense priggish or sanctimonious I hope that the defendant, Ms Dodd, and the children will understand that the order that the deceased be buried at Oodnadatta has been made because that is how this dispute is resolved not only by the rules of common law but also by the rules of Aboriginal customary law. 

In this connection it is appropriate to refer to an affidavit sworn and tendered on behalf of Ms Dodd, an affidavit of Arnold Dodd.  The affidavit was sworn after all of the evidence had been tendered and argument had been heard.  It was sworn today.  In that affidavit Mr Dodd, who is a Field Officer with the Aboriginal Legal Rights Movement based at Port Augusta, says that in his view the deceased is not a traditional Aboriginal as he has been brought up in the ways of the white man. 

I have had regard to that evidence but I do not believe that it is of any assistance in resolving the issues in this case.  There are several reasons for that view.  First, it is well known that, although an Aboriginal might not be a traditional Aboriginal, he may nevertheless believe that he is in one respect or another bound by particular aspects of Aboriginal law and custom.  Secondly, it is very difficult for me to understand without further enquiry what is meant by the statement that the deceased is not a traditional Aboriginal.  Thirdly, as the reasons already given demonstrate the same result is reached if one has regard to the rules of the common law or the rules of Aboriginal customary law.  Thus the assertion that the deceased is not a traditional Aboriginal does not materially affect the resolution of the issues in this matter. 

Before making the order that the plaintiff have the right for the body of the deceased for purposes of burial and have the right to make the burial arrangements, I add the following.  Ordinary decency requires that those who reside in Port Augusta who might wish to attend the funeral in Oodnadatta should have the opportunity to do so.  It is a considerable distance between Port Augusta and Oodnadatta.  In addition, those wishing to attend will have to make arrangements to enable them to go to the funeral.  Whilst I am conscious of the principle of Aboriginal law and custom that it is appropriate that the deceased should be promptly buried, I believe that ordinary decency requires that, in the particular circumstances of this case, there should be not less than three days’ notice of the funeral and that those conducting the funeral should give notice in “The Advertiser” stating the funeral arrangements. 

I note also the views expressed in the affidavit of Mary Jones that her brother had expressed the wish that Ms Dodd should not attend the funeral.  Whilst I am sensitive to the views she has expressed, it is obvious that there is a considerable conflict in the evidence as to the wishes of the deceased concerning his burial.  Further, regard should be had to the fact that there is a body of evidence which suggests that the deceased did visit Ms Dodd for the purpose of having access to his children and that those visits did not lead to any unnecessary friction.   Ms Dodd herself has expressed the view that she would wish to bury the man who had at one time been her de facto husband and who is the father of the two children.  In addition the children themselves might wish to attend this funeral.  Thus I believe it appropriate that they and others be permitted to attend. 

This is an issue where it is manifest that there is a high degree of emotion and the issues have a great deal of importance to the respective parties.  In all the circumstances, whatever the outcome of this application would have been, I would have thought it appropriate to make no order as to costs.  I note that the parties agree with that course. 

The orders will therefore be as follows:

1. The plaintiff shall be entitled to the body of the deceased for the purpose of making the burial arrangements. 

1. The plaintiff is at liberty to bury the deceased at the cemetery at Oodnadatta. 

1. The plaintiff shall cause notice of the funeral arrangements to be published in “The Advertiser” so that there is not less than three days notice of the funeral. 

1. No order as to costs.