Mathieson v State Coroner of Western Australia - [2025] WASC 393

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MATHIESON -v- STATE CORONER OF WESTERN AUSTRALIA [2025] WASC 393
CORAM:   MCGRATH J
HEARD:   16 SEPTEMBER 2025
DELIVERED          :   19 SEPTEMBER 2025
FILE NO/S:   CIV 2000 of 2025
BETWEEN:   LAUREN MATHIESON
Applicant
AND
STATE CORONER OF WESTERN AUSTRALIA
Respondent

Catchwords:

Burial rights - Person dying intestate - Juvenile - Where dispute arose between the deceased's mother and primary carer - Dispute as to appropriate burial and funeral arrangements - Dispute to be resolved in a practical way - Unreasonable delay to be avoided - Which person should have carriage of funeral - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 4

Result:

The body of MT be released to the applicant who is to have carriage of the funeral
No order as to costs

Representation:

Counsel:

Applicant	:	Mr C A Gregson
Respondent	:	Ms K Niclair

Solicitors:

Applicant	:	Gregson & Associates
Respondent	:	State Solicitor's Office

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

Britt v Office of the State Coroner [2022] WASCA 75
Burrows v Cramley [2002] WASC 47
Dann v Office of the State Coroner [2020] WASC 486
Doodeward v Spence (1908) 6 CLR 406
JB v PRN [2024] WASC 219
Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328
Mourish v Wynne [2009] WASC 85
Smith v Tamworth City Council (1997) 41 NSWLR 680
The Public Trustee v Gulvin & Ors [2004] WASC 140
Williams v Williams (1882) 20 Ch D 659

MCGRATH J:

A boy of only 8 years of age died unexpectedly. There is now a dispute as to the funeral arrangements between the applicant, being the boy's mother, and Mr Mays, his primary carer, who was given sole parental responsibility for day-to-day decisions relating to the boy by the Family Court. I will refer to the young boy as MT for reasons of privacy.
The Coroner decided to issue a certificate pursuant to s 29(1) of the Coroners Act 1996 (WA) releasing the body to Mr Mays so that he may have carriage of the funeral.
By originating summons filed 3 September 2025, the applicant applies for an order that the body be released to her and that she be given carriage of the funeral.
At the hearing, the Coroner was represented, not to make submissions concerning the merits of the application, but to assist the court. Howard J ordered that Mr Mays and his mother, Ms Myles, may have leave to be heard in the proceedings.
I accept that the death of the young boy has caused the applicant and Mr Mays and Ms Myles enormous grief. I accept that the applicant and Mr Mays and Ms Myles wish to arrange the funeral because of their respective love and devotion to MT. It is very important that the funeral be held without delay but in a manner in which the applicant, and Mr Mays and Ms Myles and other loved ones may attend.
Regrettably, there is an impasse between the parties. Mr Mays and Ms Myles wish that there be a private cremation followed by a memorial service at which the applicant will definitely not be permitted to attend. During the hearing, both Mr Mays and Ms Myles were adamant that there was no way or means by which they would agree to permit the applicant to attend any funeral or memorial service. The consequence is that a mother will not be allowed to attend her own 8‑year‑old son's funeral. Mr Mays and Ms Myles stated that they would take possession of the ashes after cremation.
The applicant proposes a funeral service to which Mr Mays and Ms Myles may attend followed by a private cremation. The applicant is willing to share the ashes if Mr Mays and Ms Myles are agreeable.
I am satisfied that the applicant should arrange the funeral of MT. To do otherwise, would exclude the applicant from her own son's funeral. By the applicant arranging the funeral, I very much hope that the funeral may now be held as soon as is practicable and that the parties who came before the court will each peacefully attend the funeral of the young boy. If Mr Mays and Ms Myles do not wish to attend the funeral to be arranged by the applicant then they may proceed with their own separate planned private memorial service.

Legal principles

This court has jurisdiction pursuant to s 4 of the Administration Act 1903 (WA), and in its inherent jurisdiction, to determine who should have carriage of a funeral, and where and how a body should be disposed of.[1]
[1] Burrows v Cramley [2002] WASC 47 [3] (Pullin J); Mourish v Wynne [2009] WASC 85 [21] (Le Miere J).
The relevant legal principles in determining who should have possession and control of a body were outlined in Britt v Office of the State Coroner.[2] The Court of Appeal considered the principles relevant to the court's discretion to make orders as to who should have carriage of a funeral, both in circumstances where there is a will, and where there is no will.
[2] Britt v Office of the State Coroner [2022] WASCA 75 [52] ‑ [66].
The common law recognises that there is no property in the body of a deceased person. Executors are entitled to custody and possession of the body for the purpose of determining funeral arrangements.[3] However, the position is more complex when a person dies without leaving a will or naming an executor. That is a circumstance that will arise when the deceased is a child.
[3] Williams v Williams (1882) 20 Ch D 659; Doodeward v Spence (1908) 6 CLR 406; Burrows v Cramley [15] - [16] (Pullin J).
In JB v PRN,[4] Hill J summarised the applicable principles as outlined by the Court of Appeal in Britt v Office of the State Coroner as follows:
[4] JB v PRN [2024] WASC 219 [12].
(a)if there is no will, the court will ordinarily order that the body be released to the person who appears, on the state of the evidence before the court, to be the person who is 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), determined by reference to the table in s 14 of the [Administration] Act;[5]
(b)this is the common or usual approach, but it is not an approach which must be rigidly applied.[6] The approach to be taken, and the weight to be given to the various considerations, depends upon the particular circumstances of each case;[7]
(d)other factors (to the extent they are known to the court) which may be relevant to the determination include:[8]
(i)cultural considerations;[9]
(ii)the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased;[10]
(iii)the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties with the competing proposals;[11] and
(e)in determining who a deceased's body should be released to, the court is not required to make any final determination of who might be entitled to the intestate estate or administration of the estate. In many cases the court will simply not be in a position to fairly and properly make a final determination. Disputes about the release of deceased's body should be resolved as soon as possible after death as it is an affront to the dignity of the deceased and the emotional well‑being of those close to them for the funeral to be delayed for many months after death to allow questions of interest and entitlement to be fairly and properly resolved.[12]
[5] Britt v Office of the State Coroner [54], [59], [65]; Smith v Tamworth City Council (1997) 41 NSWLR 680, 691; Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [45] ‑ [46].
[6] Britt v Office of the State Coroner [55], citing Jones v Dodd [46].
[7] Britt v Office of the State Coroner [18] (Murphy & Beech JJA), [59] (Mitchell JA).
[8] Including in cases where there is estate and where there is no likelihood of any application for a grant of administration ever being made, or there are claims by persons with equally-ranking rights to apply for administration: Britt v Office of the State Coroner [56] ‑ [57].
[9] Britt v Office of the State Coroner [58]; Dann v Office of the State Coroner [2020] WASC 486 [53].
[10] Britt v Office of the State Coroner [58]; Dann v Office of the State Coroner [48].
[11] Britt v Office of the State Coroner [58].
[12] Britt v Office of the State Coroner [16] (Murphy & Beech JJA) [60] ‑ [61], [64] (Mitchell JA).
Further, in Britt v Office of the State Coroner,[13] the Court of Appeal cited with approval the approach described by Perry J (Millhouse and Nyland JJ agreeing) in Jones v Dodd:[14]
Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality.
In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.
[13] Britt v Office of the State Coroner [56].
[14] Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [45].

Factual background and evidence

I have received three affidavits namely, the affidavit of the applicant sworn 8 September 2025, the affidavit of Ms Tyler, Principal Registrar of the Coroner's Court of Western Australia, on behalf of the respondent, affirmed 8 September 2025 and the affidavit of Mr Mays affirmed 10 September 2025. The affidavit of Mr Mays purported to be affirmed and signed by both Mr Mays and Ms Myles. I received the affidavit as being the affidavit of one deponent, namely Mr Mays, being the person to whom the Coroner released the body of MT. At the hearing, I ordered that the affidavits were taken as read.
I propose to outline the salient aspects of the evidence received. It is not necessary to refer to and outline all evidence received, but it should be understood that I have carefully read all the evidentiary material.
The relevant factual background is outlined in the affidavit of Ms Tyler who produces relevant documents including the reasons for decision of the Coroner in respect to who should arrange the burial of MT. I will refer to the reasons of the Coroner for the reason that they succinctly outline the factual background and the respective contentions of the applicant and Mr Mays.
On 2 August 2025, MT died due to complications from diabetic ketoacidosis.[15]
[15] Affidavit of Ms Tyler [9], [12].
The Coroner was advised that the applicant and Mr Mays were unable to reach an agreement as to whom the body should be released to.[16] The Coroner's Court received two separate applications for the removal of MT's body from the State Mortuary, namely from the applicant and Mr Mays.[17]
[16] Affidavit of Ms Tyler [17].
[17] Affidavit of Ms Tyler [14].
On 22 August 2025, the Acting State Coroner issued an instruction for the parties to be invited to provide written submissions to the Coroner by 26 August 2025 to assist in making an order pursuant to s 29(1) of the Coroners Act. The Coroner's Court informally received information from both the applicant and Mr Mays through the Coronial Counselling and Information Service.
Upon receipt of the respective submissions, the Coroner made the determination to issue a certificate permitting the cremation of MT in favour of Mr Mays. The Coroner provided written reasons for her intention to issue a certificate permitting the cremation of MT to be arranged by Mr Mays. The reasons for decision of the Coroner assist in understanding the factual history and why there is now this dispute.
The Coroner outlined the factual background being that the applicant and Mr Mays met in 2017 when MT was 11 months of age. Subsequently, Mr Mays and the applicant commenced a relationship and lived together. At that time, both Mr Mays and the applicant became the primary caregivers to MT. Mr Mays submitted that MT was looked upon as his son and called him dad and he assisted in every aspect of MT's life.
Upon the relationship ending in 2019, MT was solely in Mr Mays' care with the assistance of Ms Myles.
On 25 March 2020, Family Court orders were made in the following terms:[18]
(1)MT will live with Mr Mays;
(2)Mr Mays and the applicant will have equal shared responsibility for long‑term decisions relating to MT's care, welfare and development;
(3)Mr Mays will have sole parental responsibility for the day‑to‑day decisions relating to MT's care, welfare and development; and
(4)the applicant will spend time and communicate with MT as agreed between the applicant and Mr Mays.
[18] Affidavit of Ms Tyler, Annexure ST‑12, Reasons for Decision of Coroner [11].
In his submissions to the Coroner, Mr Mays stated that he attempted to communicate with the applicant via telephone calls and visitation but the contact became abusive and he did not believe it was in MT's best interests to continue to facilitate the interaction. Mr Mays submitted that the applicant was at liberty to apply to the Family Court for variation of the orders relating to MT but elected not to do so. Therefore, the applicant had not had any contact with him or MT for the last six years and has not contributed financially to MT's care in that time.
Mr Mays submitted that he had appointed a funeral director and provided the Coroner's Court with the contact details. The proposed funeral arrangements are that MT be cremated and his life celebrated with a memorial at home, or a place nominated by the family. Mr Mays submitted to the Coroner that he believed that this is what MT would have wanted.[19]
[19] Affidavit of Ms Tyler, Annexure ST‑12, Reasons for Decision of Coroner [15].
Turning to the applicant's submissions to the Coroner, she stated that as MT's biological mother it was her deepest desire to be given the opportunity to lay her son to rest. The applicant stated she had made countless attempts to reach out to Mr Mays over the last four years to be involved with MT's life, but her calls and messages were never answered. The applicant stated that allowing her to handle MT's final arrangements would bring her peace and allow her to show the love and dedication she feels for him.[20] Further, in her submissions to the Coroner, the applicant stated that she had met with a funeral home to make the necessary arrangements and that the financial means to cover the costs are secured.
[20] Affidavit of Ms Tyler, Annexure ST‑12, Reasons for Decision of Coroner [20].
The Coroner stated that given MT was too young to execute a will, there is no executor to whom the body may be released. Accordingly, applying the applicable legal principles, ordinarily MT's body would have been released to the person with the highest rank to apply for letters of administration with respect to his estate. The Coroner stated that that person is MT's mother, namely the applicant. However, the Coroner determined that considering the entirety of the evidence, it was appropriate to depart from the common or usual approach and issue a certificate under s 29 of the Coroners Act releasing MT's body to Mr Mays.
In reaching that decision, the Coroner stated that Mr Mays considered MT to be his son, having raised him from 11 months of age. Further, the Coroner was persuaded that MT also thought of Mr Mays as his father.
Mr Mays has been MT's sole parental figure and caregiver since 2019 when the relationship with the applicant ended. The Coroner observed that this finding was not intended to discount the important role that Mr Mays' mother has played as a grandmother to MT.[21]
[21] Affidavit of Ms Tyler, Annexure ST‑12, Reasons for Decision of Coroner [33].
The Coroner stated that MT lived with and was cared for by Mr Mays for the vast majority of his life. Further, the Family Court orders made in 2020, in effect codifying the existing residential arrangement and setting out that Mr Mays was to have sole responsibility for the day‑to‑day care of MT, further strengthens the finding that he was MT's most significant caregiver.[22]
[22] Affidavit of Ms Tyler, Annexure ST‑12, Reasons for Decision of Coroner [35].
The Coroner stated that she was satisfied that Mr Mays has arrangements in place to allow for the cremation and memorial of MT to occur without delay.
In conclusion, the Coroner said that it was her sincere hope that Mr Mays would allow the applicant to be part of the planned memorial service for her son and would consult with her about a suitable resting place for MT.[23]

Applicant's affidavit

[23] Affidavit of Ms Tyler, Annexure ST‑12, Reasons for Decision of Coroner [38].

The applicant's affidavit confirms that whilst Mr Mays has been involved with her son since 2019, she has also had ongoing parental responsibility. The applicant refers to the orders of the Family Court that as MT's mother she still had the legal authority for long‑term decisions regarding MT's care, welfare and development.
The applicant deposes that for the past four years she has repeatedly attempted to maintain contact with her son through video calls, visits and requests for updates. However, the applicant deposes that despite those efforts, she was consistently ignored or dismissed by Mr Mays with her messages often 'left on read' without reply and that requests for updates were not answered.[24]
[24] Affidavit of applicant [4].
The applicant states that on 16 March 2022, she attempted to attend a family dispute resolution practitioner session as part of her efforts to secure regular contact with her son. Regrettably, Mr Mays did not attend the session.
The applicant produces screenshots of unanswered messages, records of brief calls and documentation relating to her family dispute resolution attempts to demonstrate her genuine and ongoing attempts to be present in her son's life.[25]
[25] Affidavit of applicant [6].
In respect to funeral arrangements, the applicant says she remains willing and open to ensuring that Mr Mays can attend the funeral service by providing all details and further considering Mr Mays' 'thoughts and feedback on the funeral arrangements'.[26]
[26] Affidavit of applicant [8].
The applicant proposes that there be a cremation and that there can be a sharing of the ashes.[27]
[27] Affidavit of applicant [9].
In addition, the applicant requests that she receive some of her son's personal effects including school photos, school work, school reports and some of his favourite toys.[28]

Oral submissions of the applicant

[28] Affidavit of applicant [10].

During the hearing, counsel for the applicant submitted that the applicant proposed a funeral followed by the cremation. The funeral would be open, and Mr Mays and Ms Myles were invited and may attend. Counsel for the applicant submitted that there could be two separate services, each on the same day. That proposal would allow all family members to attend. Counsel confirmed that the applicant remained committed to sharing the ashes with Mr Mays and Ms Myles.

Affidavit of Mr Mays

Mr Mays deposes that since 2019 he has been the primary carer of MT and that in March 2020, the Family Court ordered that he have sole parental responsibility for MT's day-to-day care, welfare and development.
Mr Mays deposes that his relationship with the applicant became acrimonious and that her contact and visitation with MT effectively ceased.[29] Mr Mays contends that in 2019 the applicant assaulted him and took MT. Mr Mays states that the Department of Child Protection intervened and returned MT to his care. Mr Mays deposes that visitations resulted in the applicant being aggressive.
[29] Affidavit of Mr Mays [3].
Mr Mays states that the biological father and the applicant have been at liberty to apply to discharge or vary the Family Court orders at any time but have not done so. Mr Mays states that he has never met or had any contact with MT's biological father.

In respect to the failure of Mr Mays to attend the family dispute resolution meeting with the applicant, he did not attend for the reason that he acted upon his legal advice.[30] Mr Mays addressed the screenshots of unanswered messages and brief telephone calls with the applicant and expressed the opinion that the records produced were not fulsome and therefore not accurate.[31]
[30] Affidavit of Mr Mays [6].
[31] Affidavit of Mr Mays [7].
A large part of Mr Mays' affidavit addresses his concerns in respect to the Perth Children's Hospital Social Workers Department for the reason that they permitted the applicant to have contact with MT whilst a patient. Further, Mr Mays questions aspects of the post‑mortem examination concerning the presentation of MT and consequently requests that a coronial inquest be held.[32]
[32] Affidavit of Mr Mays [16] - [19].
Mr Mays expresses the belief that the coronial inquiry will properly examine the cause of death and make recommendations in respect of future children admitted to Perth Children's Hospitals.
Mr Mays deposes that he has a 'spiritual belief to keep child MT whole' and consequently, considers that MT's ashes should not be divided with the applicant. Further, Mr Mays deposes that he is of the opinion that it would not be appropriate to invite the applicant to a close family gathering and the memorial that is to be planned for MT. In addition, Mr Mays states that he does not wish to provide any of MT's personal belongings, school photographs, school reports or toys to the applicant. He states that the applicant did not purchase or contribute financially to any of those items.[33]

Oral submissions of Mr Mays and Ms Myles

[33] Affidavit of Mr Mays [20].

During the hearing I received oral submissions from Mr Mays and Ms Myles. I inquired regarding the proposed funeral and where it was proposed to be held. After some discussion, it appears that the funeral has not been settled but the proposal appears to involve a private cremation followed by a memorial service. The location of the memorial service is not settled but is likely to be at a family home. I understand that the cremation is conducted without persons attending and it is instead the subsequent memorial service that persons attend.
I inquired whether they were willing to permit the applicant to attend the proposed funeral or memorial service. Both Mr Mays and Ms Myles confirmed that they were definitely not willing to allow the applicant to attend any funeral or memorial service. I proposed that the applicant may attend in company with a person and sit at the back of the room. Ms Myles confirmed that was unsuitable and that they would not be willing to make any such arrangements. Rather, the applicant was not welcome.
Ms Myles stated her opposition in regard to the applicant attending the hospital prior to MT's death. The hospital allowed the applicant to attend but Ms Myles expressed her disagreement with the applicant attending and being allowed to intervene.

Assessment of relevant factors

There appears to be three points of contention between the parties, being who should arrange the funeral, who should attend and who should take possession of MT's ashes after cremation. There appears to be agreement that the funeral will be held in Perth. There are no cultural or religious issues concerning the funeral. The applicant and Mr Mays (and Ms Myles) are both content for the funeral to involve a cremation. Neither the applicant nor Mr Mays (and Ms Myles) require that the funeral be conducted in accordance with any particular religion or church.
The applicant has deposed that she proposes to allow Mr Mays to attend the funeral and is willing to share the ashes of MT. Mr Mays deposes that he does not propose to share the ashes of MT nor invite the applicant to the funeral. This is most regrettable. Mr Mays maintains that he believes that the applicant will be verbally abusive towards him and his mother if she attends the funeral.
I now turn to the factors that I must consider. The first relevant factor is who has the highest-ranking claim to undertake administration of MT's estate. The applicant has the highest-ranking claim being the mother of MT.
Section 12A of the Administration Act 1903 provides, relevantly:
12A.Entitlement to participation in distribution of intestate estates
(1)Where, after the coming into operation of the Administration Act Amendment Act 1971, any person dies intestate as respects all or any of his property, for the purpose of determining who is entitled to participate in the distribution of that part of his estate to which the intestacy applies the relationship between a child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly.
(2)In any proceedings where a person relies on a matter of fact made relevant by the provisions of subsection (1) -
(a)that fact shall not be taken to be proved unless it is established to the reasonable satisfaction of the Court; and
(b)where the parents are not, or have not been, married to each other, the relationship between a child and his parent, and all other lineal or collateral relationships, shall be recognized only -
(i)if parentage is admitted by or established against the parent in his lifetime; and
(ii)where the purpose for which the relationship is to be determined enures for the benefit of the parent, if parentage has been so admitted or established in the lifetime of the child.
The reference to 'parentage' in s 12A(2)(b)(i) of the Administration Act on its proper construction requires the paternity of the father only be recognised if it is admitted or established against the father in his lifetime. This section is applicable to a situation where a child dies, and a biological father seeks to participate in the distribution of the child's estate. In the present case, Mr Mays does not claim paternity of MT. In The Public Trustee v Gulvin,[34] the fact that the first defendant's mother married the deceased sometime after her birth was not sufficient to allow her to participate in the estate as a child of the deceased in accordance with s 12A(2) of the Administration Act.
[34] The Public Trustee v Gulvin [2004] WASC 140 [17].
Accordingly, Mr Mays is not able to participate in the distribution of MT's estate in accordance with s 12A(2) of the Administration Act.
In this case there is no evidence, understandably, that MT expressed any wishes as to who should arrange his own funeral.
Based upon the evidence before me, both the applicant and Mr Mays are in a position to arrange the funeral and to meet the financial costs of the burial. I am satisfied that both the applicant and Mr Mays would do so in a timely manner. As I have observed, the applicant is willing to arrange a funeral to which both Mr Mays and Ms Myles are able to attend. However, Mr Mays and Ms Myles will not permit the applicant to attend her own son's funeral. At the hearing of the matter, I sought a compromise between the applicant and Mr Mays. I made it plain to Mr Mays that to not allow the applicant to go to the funeral of her 8‑year‑old son was deeply regrettable. Mr Mays and Ms Myles will not compromise.
Since 2019, Mr Mays has been MT's sole parent and caregiver. MT lived with Mr Mays for nearly his entire life with Mr Mays being the person who was a constant presence in MT's life. The Family Court orders made in 2020 continued throughout the life of MT.
I am satisfied that there is a deeply entrenched acrimony from both Mr Mays and Ms Myles towards the applicant.
In making my decision, I am mindful there will be significant distress to the person who is not given carriage of the funeral. It is most unfortunate that the respective parties are unable to reach an agreement. I am satisfied that the body of MT should be released to the applicant and that she should have carriage of the funeral. I am mindful that Mr Mays has been the person who has had day-to-day parental responsibility for MT. In the circumstances of this case, I find myself in the position of being very concerned that a mother is being excluded from her son's funeral.
I make this decision on the understanding that there will be a private cremation. The funeral organised by the applicant may be attended by Mr Mays and Ms Myles. If Mr Mays and Ms Myles do not wish to attend, then they may proceed with their own memorial service which they are already planning. Mr Mays and Ms Myles will decide who will attend their own separate private memorial service. They can do so in the knowledge that the young boy has been cremated as is their wishes.
I will not order that the ashes be divided. To do so would be contrary to the wishes of Mr Mays and Ms Myles. However, should Mr Mays and Ms Myles change their mind and wish the ashes to be divided, then the applicant has expressed a willingness to meet such a request.

Conclusion and orders

Accordingly, I order that the body of MT be released to the applicant who is to have carriage of the funeral. I do not make any order as to costs. Each party should bear their own costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CEM
Associate to the Hon Justice McGrath
19 SEPTEMBER 2025