McKenzie v McKenzie
[2023] SASC 71
•11 May 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MCKENZIE v MCKENZIE
[2023] SASC 71
Judgment of the Honourable Justice Bampton
HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES
HEALTH LAW - BURIAL AND CREMATION - CEMETERY AND CREMATORIUM LANDS
The deceased died intestate on 13 March 2023 survived by his adult daughter – where the deceased’s sole surviving sibling asserts the deceased expressed the wish during his lifetime to be buried in plot 2978 in the Hawker Cemetery, next to his brother and close to other predeceased family members – where the deceased’s daughter and his surviving sibling are in dispute regarding the deceased’s place of burial – where the parties agreed to exclude from the flexible balancing of common law principles and practical considerations any cultural and spiritual matters – where the deceased’s daughter is entitled to apply for letters of administration in the deceased’s intestate estate – where the wishes of members of the family of the deceased are taken into account – whether there is evidence of the deceased's wishes regarding burial.
HELD: The deceased be buried in plot 2985 in the Hawker Cemetery and the lease to plot 2985 be assigned to the deceased’s daughter – the lease to plot 2987 in the Hawker Cemetery be assigned to the deceased’s daughter for her future use (should she wish) – the lease to plot 2989 in the Hawker Cemetery be assigned to the deceased’s daughter or her mother for the mother’s future use (should she wish).
Probate Rules 2015 (SA) r 34, referred to.
Marschall v Elson [2023] SASCA 1, applied.
White v Williams (2019) 99 NSWLR 539; The State of South Australia v Smith & Anor (2017) 119 SASR 247; In the Estate of Jones (Deceased); Dodd v Jones [1999] SASC 458, considered.
MCKENZIE v MCKENZIE
[2023] SASC 71Civil: Application
BAMPTON J: DM,[1] an Adnyamathanha man of few words, died on 13 March 2023 at his home at Oraparinna Station, approximately 77 kilometres from Hawker in the Flinders Ranges. He is survived by his adult daughter Clare McKenzie (“Clare”). His only surviving sibling is his sister Tanya McKenzie (“Tanya”). DM died intestate and without a pre-arranged funeral plan. A dispute has arisen between Clare and Tanya concerning where the bodily remains of DM should be buried (“the dispute”).
[1] The deceased and members of his family referred to in this decision who predeceased him are referred to by their initials due to their cultural beliefs.
Tanya commenced these proceedings against Clare, naming Quinn Funerals (SA) Pty Ltd as an interested party and seeking orders that:
1.Clare be prohibited from disposing of or otherwise dealing with the bodily remains of DM except as expressly allowed for by orders of this Court or by agreement with her.
2.Quinn Funerals (SA) Pty Ltd (“Quinn Funerals”) be prohibited from releasing or disposing of the bodily remains of DM except as expressly allowed for by orders of this Court or by agreement between Clare and Tanya.
3.Insofar as is necessary to enable the burial of the bodily remains of DM in plot 2978, Hawker Cemetery, the Court declare that Tanya be charged with and be responsible for the disposal of the bodily remains of DM.
4.Further, or in the alternative to orders 2 and 3, the person charged with and responsible for the disposal of the bodily remains of DM is directed as far as that person is able, to do all things necessary to bury the bodily remains of DM in plot 2978, Hawker Cemetery.
On 5 April 2023, a Master of this Court ordered that until further order, Quinn Funerals be prohibited from releasing or disposing of the bodily remains of DM except as expressly allowed for by orders of this Court or by agreement between Clare and Tanya. Quinn Funerals, by its solicitor, informed Tanya’s solicitors that it would not take a position in the dispute and would abide any orders of this Court.
The evidence
Tanya’s application came on for hearing before me on 5 May 2023.
Tanya relied on three affidavits affirmed by her on 3 April 2023, 14 April 2023 and 25 April 2023, which were read into evidence.[2] She also relied on and read into evidence the affidavit of Narelle McKenzie affirmed 14 April 2023,[3] the affidavit of Trevor John Menzel affirmed 14 April 2023,[4] the affidavit of Pauline McKenzie affirmed 14 April 2023,[5] and two affidavits of Julia Henderson affirmed 14 April 2023 and 26 April 2023.[6]
[2] Exhibits A7, A8, and A9.
[3] Exhibit A3.
[4] Exhibit A4.
[5] Exhibit A10.
[6] Exhibits A5 and A6.
Clare relied on and read into evidence her affidavits affirmed 21 April 2023 and 4 May 2023,[7] an affidavit of her mother Jillian Kay Marsh affirmed 21 April 2023,[8] and an affidavit of her grandmother Enice Marsh affirmed 21 April 2023.[9] Both Clare and Jillian supplemented matters deposed to in their affidavits with oral evidence‑in‑chief and were not cross-examined.
[7] Exhibits R3 and R4.
[8] Exhibit R2.
[9] Exhibit R1.
As it was agreed the Court could not make findings in this proceeding regarding cultural and spiritual matters, any such matters deposed to in the affidavits were not read into evidence.
DM’s family relationships
DM, his elder brother JM, and his younger sister SM are the children of FM and BM. Following FM’s death, BM formed a relationship with AC. BM and AC are the parents of Tanya.
DM and his former partner Jillian Marsh (“Jillian”) are the parents of Clare. Enice Marsh (“Enice”) is Jillian’s mother and Clare’s grandmother.
JM, who died in 2014, and Julia Henderson (“Julia”) are the parents of Jessica McKenzie (“Jess”). Julia is also the mother of Doogal and Barney from a previous relationship. Julia, Doogal, and Barney are not Aboriginal.
SM, who died in 1999, is the mother of Narelle McKenzie (“Narelle”). Trevor Menzel (“Trevor”) is Tanya’s partner. Pauline McKenzie (“Pauline”) is the daughter of FM’s brother.
Members of DM’s family buried in the Hawker Cemetery
To assist in understanding the dispute, the plan below identifies the locations of the graves of DM’s father FM, his mother BM, his mother’s partner (and Tanya’s father) AC, his sister SM, and his brother JM in the northeast corner of the Hawker Cemetery. The plan shows the location of plot 2978 being one of the 11 plots leased by JM’s former partner Julia.[10] The three plots the subject of the “open offer” discussed latter in this decision are located to the south of AC’s grave highlighted in green.
[10] Plot 2980 became JM’s grave in 2014.
Pathway 2975
Leased by Julia2778
FM (DM’s father)2977
SM (DM’s sister)2978
Leased by Julia2979
BM (DM’s mother)2980
JM (DM’s brother)
Leased by Julia2981
Lost between 2979-29832982
Leased by Julia2983
AC (Tanya’s father and DM’s stepfather)2984
Leased by Julia2985
Leased by Julia2986
Leased by Julia2987
Leased by Julia2988
Leased by Julia2989
Leased by Julia2990
Leased by Julia2991
GC (AC’s brother)Plot 2978 highlighted in red is the plot Tanya contends DM identified for his interment. The plots highlighted in blue are the graves of members of DM’s family. The green plots are the subject of the open offer put by Tanya.
Tanya’s contention
Briefly stated, Tanya seeks orders allowing for DM’s bodily remains to be buried in the far northeast corner of the Hawker Cemetery where many Aboriginal persons and their families are buried. It is Tanya’s case that plot 2978 was identified by DM during his life as the plot he wished to be buried in.
Clare’s evidence
Clare was born in Adelaide. She lived with DM and her mother in Hawker for the first six years of her life until her parents’ separation. Following the separation, she and her mother moved away from Hawker.
Clare deposed that from 2014 onwards, DM would contact her and her mother by telephone and would visit them regularly. Clare said she has been living and studying in Melbourne since 2018 and DM visited her in Victoria on many occasions. Clare and her mother stayed with DM earlier this year and Clare intended to stay with him for six weeks from 16 March, but his death intervened.
Clare deposed to and gave evidence about the very close relationship she and her mother had with DM for the last five or six years. She gave evidence about frequently speaking to DM on the phone and on many occasions her mother was also involved in the telephone conversations. She said DM would stay with them at their home and they would stay with him at Oraparinna Station.
Clare deposed that on the day after her father’s death, she and Tanya agreed to collaborate on funeral arrangements. She deposed that on 14 March 2023, she consulted Tanya to determine the most appropriate funeral director and Tanya recommended Quinn Funerals at Port Augusta. Clare was informed by the funeral director, Mathew Quinn, that any decisions relating to the funeral and the burial of DM required her approval as she was the next of kin.
Clare deposed that while making funeral arrangements with Tanya there was a sudden breakdown of the relationship on 17 March 2023, during a telephone call. Clare said that during this telephone call, she requested Tanya return to her confidential paperwork and DM’s wallet which were in Tanya’s possession. Clare asserted Tanya interpreted this request as Clare and her mother, Jillian, excluding Tanya from funeral arrangements. Clare maintained that she and her mother continually reassured Tanya during the phone call that this was not the case, and they would still continue to work with her. Tanya, according to Clare, ended the telephone conversation saying Clare could tend to the funeral arrangements herself and that she, Tanya, would not be attending a meeting at Quinn Funerals on 21 March 2023.
Clare asserted that both Tanya and Pauline have exhibited threatening and abusive behaviour towards her and her direct family members over the dispute.
Clare deposed that on 18 March 2023, Tanya assaulted her grandfather, Norman Marsh, at Andu Lodge in Oraparinna. She said she and her mother were staying in the lodge as they no longer felt safe staying in DM’s house following Tanya’s aggressive and threatening behaviour. Clare deposed that she reported Tanya’s threats to the police. Thereafter, Clare chose to block Tanya’s mobile phone number and social media accounts to avoid further abuse and aggression.
Clare requested a separate meeting for herself and her mother at Quinn Funerals on 23 March 2023. Mr Quinn contacted Clare several times to discuss Tanya’s requests for the funeral, some of which were not in dispute, for example, Clare and Tanya agreed on the minister to perform the funeral service, the location of the funeral service, the location of the wake, the flowers, and the coffin. Clare did not agree with Tanya’s request to live stream the funeral, nor with her request to hold the funeral on 28 March 2023.
Clare said that, when speaking with Mr Quinn on 23 March 2023, she became aware that Tanya was offering only one plot for her father’s burial. She said the location of the plot was not specified. Clare maintained she clearly stated that she would not accept Tanya’s offer as she wished to be buried next to her father. Clare deposed that she was only aware from the affidavits filed in this matter by Tanya and Julia that Tanya asserted that DM requested to be buried in plot 2978 in the Hawker Cemetery.
Clare deposed that DM did not ever mention the plot arrangement asserted by Tanya.
On 27 March 2023, Mr Quinn contacted Clare by telephone to let her know that Tanya would not be attending the funeral which was due to take place on 5 April 2023. Mr Quinn told Clare that she would now be responsible for arranging the wake. Clare deposed that she assumed that her responsibility would include arranging a plot for burial, pallbearers, and the funeral service program. Thereafter, Clare received correspondence from the solicitors acting for Tanya.
Clare said that on 28 March 2023, Mathew Quinn contacted her to notify her of the viewing of DM’s body the next day. Mr Quinn said he required Clare’s approval as next of kin to permit Tanya to attend a separate viewing. Clare advised Mr Quinn that she was prepared to permit Tanya to attend a separate viewing to prevent further abuse from Tanya’s side of the family.
Clare stated that following Tanya’s advice to Quinn Funerals that she would no longer be attending the funeral, Clare contacted the Flinders Ranges Council to arrange burial plots in the Hawker Cemetery.
Clare said it is her wish to be buried next to DM and Jillian. She explained that as she and her mother are Adnyamathanha people, DM would, in time, be buried with direct Adnyamathanha family. Clare also said she wanted her father to be close to his family. To this end, in arranging for three plots to be reserved in the Hawker Cemetery, she told the Flinders Ranges Council she wanted three plots near FM’s grave. Clare was informed that due to the limited space in the Hawker Cemetery, the closest available plots were 10 to 15 paces away from FM’s grave. Clare arranged for plot 292E to be prepared for DM’s committal. Clare contended the non-Adnyamathanha people in graves close to the three plots she reserved are persons she knows DM to have been close to.
Clare gave evidence about her intention to apply for letters of administration in DM’s estate. In her oral evidence, Clare estimated the value of his estate to be no more than $50,000, speculating that it may comprise a life insurance policy, superannuation accounts, a bank account, and two vehicles (one of which is subject to finance). Clare’s evidence was to the effect that she was unable to access DM’s MyGov account as the details were held by her cousin, Narelle, who had apparently helped DM set up a MyGov account.
Jillian’s evidence
Jillian gave evidence supplementing matters deposed to in her affidavit. Jillian said that DM is the biological father of Clare and that they had lived together for many years as a family. She gave evidence that following her separation from DM, they continued to have a relationship based on mutual respect and trust. She said they often confided in each other, their relationship was very strong, and they spoke almost daily.
Jillian gave evidence about discussions she had with DM several weeks before DM’s death regarding what they considered appropriate if either of them were suffering a terminal illness. She said these discussions were in the context of a relative with a terminal illness having recently died. She told DM that if she was ever suffering a terminal illness she just wanted to die on country. She said that she and DM had similar views on what they would like to happen in their final days and how they could best care for each other.
Enice’s affidavit
Enice deposed in her affidavit that she also had a special relationship with DM. DM would visit her about five times a year, bringing firewood or dropping off an esky of meat, and on occasion she would take him to Adelaide so that he could fly to visit Clare in Melbourne. Enice deposed that she is dismayed about the abuse toward Clare and the bad feeling that has arisen in relation to the burial of DM. Enice concluded her affidavit saying that Clare, as DM’s daughter, is the rightful next of kin.
Tanya’s affidavits
Tanya deposed that she, JM, DM, and SM grew up in Hawker and that she and DM lived in Hawker most of their lives. She said SM died in 1999 and JM died in 2014. She said after JM’s death, she and DM were the only immediate family left and they became very close. She said they both had worked for National Parks SA for 12 years and they talked regularly. She said after DM’s death, she learnt that he had nominated her as his next of kin in his medical records at the Hawker Memorial Hospital. She said that DM called her for assistance in the hours leading up to his sudden death and that she was the first to arrive to discover his body.
DM’s wishes
Tanya deposed in her affidavit affirmed 3 April 2023 that sometime around 16 September 2014, DM advised her and other family members that he wanted to be buried in plot 2978 at the Hawker Cemetery. Whilst she does not recall the specifics of the conversation, she recalled that at the time of JM’s death on 9 September 2014, JM had a domestic partner Lynn Edmondson (“Lyn”), a former partner (Julia), and a daughter (Jess). Tanya said she recalls that there were tensions between Lyn, Julia, and Jessica about who should make funeral and burial arrangements for JM in accordance with his wishes. Tanya explained that she and DM were involved in the funeral and burial arrangements. She said she, DM, Lyn, Julia, Jess, Narelle, and Crystal (Lyn’s daughter) discussed the burial plot for JM during a meeting at Quinn Funerals. The group discussed how the Hawker Cemetery was filling up and plots were limited. Tanya said she is not sure, but it may have been Julia who suggested arranging plots at the Hawker Cemetery so that the family could be buried together. She recalled a discussion regarding the rough location each family member said they wanted to buried in. She specifically recalled DM said words to effect that he wanted to be buried in the plot underneath his sister SM, and to the left of his brother JM, in plot 2978.
In her affidavit affirmed 14 April 2023, Tanya deposed that upon reflection she recalled there were in fact conversations regarding where family members wanted to be buried earlier than the meeting following JM’s death. She recalled conversations about the purchase of plots occurring sometime in 2012 when her uncle, GC, died. Tanya said following GC’s death she found out that GC had expressed a wish to be buried next his brother and Tanya’s father AC. Tanya said she was very upset by this as she wanted to be buried next to her father. She said her family then discussed the limited plots at the Hawker Cemetery and either Julia or JM suggested arranging plots alongside AC so that the family could be buried together. She recalled everyone in the family including DM agreeing to the purchase of plots and thereafter Julia purchased the leases to the plots in her name.
Tanya took issue with certain matters deposed to by Clare. In particular, she said she did not request to hold a separate funeral for DM, and she did not say she would not attend DM’s funeral (other than a suggestion she made to Clare on 21 March 2023 to resolve the matter). She said she told Clare on 17 March 2023, that DM needed to be buried next to JM at the Hawker Cemetery. She said that as soon as Clare told her she did not want her to be involved in making funeral and burial arrangements, she made it clear where DM needed to be buried. Tanya also deposed to attempts to resolve the matter with Clare, wherein she said that upon DM being buried in plot 2978, plot 2978 can be assigned to Clare if she wishes and that she can either choose to be buried with DM in plot 2978[11] or any of the other plots leased by Julia.
[11] Plot 2978 has capacity for the remains of two persons.
Pauline’s affidavit
Pauline explained that she grew up with DM for the first 10 years of her life and that her father and FM were brothers. She said when FM died, her father took over caring for DM and his siblings, JM and SM. She deposed to having always had a close relationship with DM. She said she recalls DM told her a couple of times during his life that he wanted to be buried in the Hawker Cemetery with his close family. Pauline said she cannot now recall exactly what was said during the conversations however, she did recall that one of the conversations occurred when SM died in 1999. She recalled DM speaking to her after SM’s death and saying that he wanted to be buried in the Hawker Cemetery. Pauline said she believes that he also spoke to her about wanting to be buried in the Hawker Cemetery around the time of his mother and his brother’s deaths. She further recalled a conversation when she was having dinner with DM shortly after JM’s death, wherein he said he wanted to be buried as close as possible to his mother and brother with words to the effect ‘when the time comes that’s where I want to be’. Pauline said that Hawker was DM’s home and that she understood from the conversations she had with him that he always wanted to be buried in Hawker.
Narelle’s affidavit
Narelle stated she had a close relationship with DM throughout his lifetime. She deposed that she provided support to him following his separation from Jillian, she bought him groceries and cigarettes and that he was always involved in her life. She said that she can recall a few discussions between family members about being buried close together and that she recalls a specific discussion about four to five years ago when DM was staying at her house in Quorn, and they were watching a movie together. She said she recalls she said words to DM to the effect of ‘well I have no children or partner so I’m happy to go next to mum’. She said that they both laughed about it being a morbid conversation and that DM said words to the effect ‘yep well I will go there too’.
Narelle said that she understood the effect of their conversation to be that DM wanted to be buried in the plots that had been arranged in Hawker Cemetery and close to family members already buried there.
Trevor’s affidavit
Trevor deposed that he met DM approximately 12 years ago through his job at the National Park. He said that he and Tanya became partners in 2012 and that DM was like a brother to him. He said that he attended the funeral of JM, and he recalls that as JM was being put into the ground, Tanya was on one side and DM on the other. DM, who was upset, said words to the effect ‘at least I can be buried with my brother’ and pointed to the plot next to JM’s grave.
Julia’s affidavits
Julia deposed that she met DM when she moved to Hawker in the early 1980s. She said that in about 1991/1992 she started a relationship with JM, and they had a daughter, Jess. Julia has two children from a previous relationship, Doogal and Barney. She and JM separated in 2007 but she remained close to JM’s family following the separation. Although Julia is not Aboriginal, Jess is, and Julia has been involved in a number of family funerals. She said because of this, she has spent a lot of time at the Hawker Cemetery. Julia said, from her discussions with family members and other persons in the community, she is aware that the Hawker Cemetery has an Aboriginal section located in the far northeast corner and that there is not much space left in that section. As a result, she deposed some Aboriginal people are being buried in other sections of the cemetery away from their family.
Julia said following the death of GC, a family concern arose because GC had apparently expressed the wish to be buried next to his brother AC. This caused great upset as Tanya had always said she wanted to be buried next to AC. Julia commented that if GC was buried next to AC, then his wife and daughter would have been buried next to him which would not have left enough room for the McKenzie family, Julia, Doogal, and Barney to be buried. Julia explained that it was agreed between her and the immediate McKenzie family that they would purchase the plots so that Tanya could be buried next to AC, and they could all be buried together in the future. Accordingly, Julia purchased the leases to plots 2975, 2978, 2980, 2982, 2984, 2985, 2986, 2987, 2988, 2989, and 2990 (“the plots”) which were next, or close, to the graves of AC, BM, and SM.
Julia deposed that, following JM’s death, at a meeting at Quinn Funerals on or about 16 September 2014, a discussion took place regarding where JM would be buried. Plot 2980 was chosen for JM’s interment, leaving 10 plots. That discussion turned to a discussion about where the rest of the family would be buried. Julia deposed it was agreed amongst those present that DM would be buried below SM and next to JM, Tanya would be buried next to AC, Jess would be buried next to JM on his righthand side, that she – Julia – would be buried next to Jess, and Doogal and Barney would be buried next to her. Julia deposed she made a handwritten note of this discussion a copy of which is annexed to her affidavit affirmed 14 April 2023. Julia states DM was actively involved in this discussion. Julia said she consents to one of the 10 remaining plots in her name being used to bury DM and that, having regard to the conversations she was involved in with him, it should be plot 2978.
A copy of the northeast corner of the Hawker Cemetery is exhibited to Julia’s affidavit affirmed 14 April 2023 identifying the 11 plots leased by her in 2012. Exhibited to Julia’s affidavit affirmed 26 April 2023 is a copy of a cemetery lease dated 23 March 2023 certifying Julia is the lease holder of plots 2975, 2978, 2982, 2984, 2985, 2986, 2987, 2988, 2989, and 2990 for 10 years from the date of the lease.
Following the hearing of Tanya’s application, I requested a copy of the 11 plot leases Julia said she purchased in 2012. Tanya’s solicitors provided a copy of the cemetery leases for each of the 11 plots, all dated 8 November 2012.
The proposed compromises
At the commencement of the hearing, Clare’s counsel informed me that Clare no longer wished for DM to be buried in the Hawker Cemetery because of the breakdown in the relationship with Tanya and other family members, which included alleged threatening and violent behaviour towards her and her family.
I was informed that Tanya was prepared, with Julia’s consent, for Julia to assign the lease to plot 2978, and/or another nearby plot of Clare’s choosing, to Clare so that Clare could be buried with or near DM. This proposal, named the “practical compromise” by Tanya’s counsel, was not acceptable to Clare who wishes to be buried next to both her parents.
The parties were given an opportunity to attempt to reach an agreement before evidence was received. Following an adjournment to allow discussions to take place, I was informed by Tanya’s counsel that Tanya was prepared to forgo her position that DM’s bodily remains be buried in plot 2978 and make an open offer that Clare be assigned the leases to plots 2985, 2986, and 2987 (again with Julia’s consent), and that DM’s bodily remains be buried in plot 2985 (“the open offer”).
Clare contended the compromises offered by Tanya would force her to bury “her father among people who have demonstrated threatening and violent behaviour towards her and her family” and further if she wished “to be buried with her mother, this would require her mother to forsake her own burial arrangements and be amongst people who have demonstrated threatening and violent behaviour towards her and her family”.[12]
[12] Written submissions of the respondent.
Applying a flexible and practical approach to the resolution of the dispute
As noted by counsel for Tanya and Clare, the authorities concerning the legal principles applicable to the disposal of bodily remains spans several centuries. Those principles have been settled by the Court of Appeal in Marschall v Elson.[13] In reviewing past authorities, the Court of Appeal stated the key propositions in burial disputes appear to be:[14]
[13] [2023] SASCA 1.
[14] [2023] SASCA 1 at [59].
1.There is no property in a dead body, and it may not be owned by anyone. Nonetheless in certain circumstances the law may protect the lawful possession of a corpse or body parts.[15]
2.When a person dies possessed of sufficient property, the duty of burying the body falls on his or her personal representative. Where there is a will, that is the executor or executrix named in the will. There is no longer any obligation in a husband to meet the reasonable funeral expenses of his deceased wife.[16]
3.Where the deceased does not have the means to pay for burial, the occupier of the premises in which the person dies has the duty to cover the body and convey it for burial. That obligation extends to hospitals and medical facilities.[17]
4.Where there is no executor named, but the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup those expenses out of the estate.[18]
5.Where the deceased dies intestate, but there is no significant estate, or it is unlikely that an application will be made to take out letters of administration, the wishes of the person best placed to obtain an order for administration will not necessarily be accorded significant weight on account of that fact alone.[19]
6.Rather, in all cases involving intestacy, the proper approach requires a flexible balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious matters that are of importance on the evidence. This extends to taking into account, at the least, the wishes of the deceased and the members of the family of the deceased.[20]
7.It is not always necessary to resolve all disputes that may emerge on the evidence, and the Court must be mindful that the dignity of the deceased,[21] and the conscience of the community,[22] require that a declaration as to the mode and place of burial be made promptly, albeit with all proper respect and decency for the interests of those involved.[23]
(Emphasis added, footnotes in original)
[15] Doodeward v Spence (1908) 6 CLR 406, 414 (Griffith CJ with whom Barton J agreed, Higgins J dissenting).
[16] Jones v Dodd (1999) 73 SASR 328, [29] (Perry J, with whom Millhouse and Nyland JJ agreed). Cf Smith v Tamworth City Council (1997) 41 NSWLR 680, 691-692 (Young J).
[17] Kate Falconer, “Reconceptualising the Law of the Dead by Expanding the Interests of the Living” (2019) 45(3) Monash University Law Review 757, 761 cites University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch); Lakey v Medway NHS Foundation Trust [2009] EWHC 3574 (QB).
[18] Smith v Tamworth City Council (1997) 41 NSWLR 680, 691 (Young J).
[19] South Australia v Smith (2014) 119 SASR 247, [53] (Nicholson J).
[20] South Australia v Smith (2014) 119 SASR 247, [34] (Nicholson J).
[21] Burial and Cremation Act 2013 (SA) s 6; Minister for Families and Communities v Brown [2009] SASC 86 at [10].
[22] Calma v Sesar (1992) 106 FLR 446, 452 (Martin J).
[23] Calma v Sesar (1992) 106 FLR 466, 452 (Martin J).
Clearly, in this matter it is not possible or necessary to make findings regarding all issues in dispute, for example, the allegations of threats and violence.
In her submissions, Tanya reiterated her position that DM should be buried at the Hawker Cemetery, specifically plot 2978. Tanya submitted that Clare has not stated where she would bury DM, only that she should be the person charged with his burial. Tanya contended the Court is empowered to make orders in terms of the practical compromise or her open offer, detailed above.
In her submissions, Clare contended that she attempted to arrange disposal of DM’s remains in conjunction with Tanya. However, Tanya proved unwilling to compromise and unwilling to recognise Clare’s position as the only child of DM, and that Tanya, along with family and friends, resorted to violent and threatening behaviour toward Clare and her family.
Clare submitted Tanya’s behaviour has made it impossible to reach a solution and has contributed to Clare’s grief over losing her father. As a result, Clare seeks to make the arrangements for the disposal of DM’s remains without input from Tanya, though she has indicated she is willing to take Tanya’s views into consideration. Clare submitted that she is the person with highest priority to obtain letters of administration[24] and, whilst that does not give her burial rights, it is an important factor to be considered.
[24] Probate Rules 2015 (SA) r 34.
Clare submitted that there is no recent or particularly compelling evidence of DM’s wishes. She argued that certain evidence regarding his alleged wishes was approximately 10 years old, vague, and unspecific. Clare submitted that Narelle’s evidence of a discussion four to five years ago is also vague and unspecific. Clare pointed out that the evidence Tanya relies on regarding DM’s purported wishes makes no provision made for her to be buried next, or even close, to DM and that would have been his wish. Accordingly, Clare argued that little weight can be placed on the evidence relied on by Tanya regarding DM’s wishes.
Clare submitted the close and loving relationship she enjoyed with DM would have an impact on what his wishes were at the time of his death.
Clare further submitted she was not aware until after DM’s death that Tanya was related to him as she did not observe they had a close relationship.
In contrast, she argued that she is the only child of DM and had a very close and loving relationship with him. It was submitted that as the only child of DM, strong emphasis should be accorded to her wishes. In this regard, Clare cited Sackar J in White v Williams:[25]
Particular emphasis should be placed on the wishes and needs of the children in this case. … In my view, the wishes of the children in this case are of the utmost importance and are afforded significant weight in my decision.
[25] (2019) 99 NSWLR 539 at [113].
Clare also relied on Nicholson J’s comments regarding the importance to be placed on the wishes of children in The State of South Australia v Smith & Anor:[26]
Ultimately, in my view, the interests of the deceased’s children should be accorded a greater weight … The nature and closeness of the respective relationships (children as against extended family) supports this. …
…
… the court should take an approach that best serves the interests of all three surviving children … I am satisfied that it cannot be said that this is necessarily inconsistent with the wishes of the deceased, nor that there is a contrary cultural imperative so clear and so strong that it should overwhelm this consideration.
[26] (2017) 119 SASR 247 at [72], [74].
Clare submitted that it would be of severe detriment – emotionally, spiritually, and culturally – to prevent her from being allowed to make arrangements for her late father’s bodily remains.[27] It was submitted that Clare is entitled to make all arrangements for DM’s remains having regard to her priority ranking to obtain letters of administration, her wishes as DM’s only child, there being no recent or equivocal evidence of DM’s wishes, and the nullification of cultural considerations. Accordingly, she contended that the determination of this matter requires a balancing of factors and that a balanced approach should result in her being given full control over DM’s bodily remains.
[27] This submission was made in written submissions received after the hearing. As the parties, at Clare’s counsel’s urging, agreed not to adduce evidence regarding cultural and spiritual matters, the reference to cultural and spiritual detriment must be an oversight.
Applying the flexible balancing of common law principles and practical considerations approach in this matter, I need to determine what is going to provide the most justice and the least injustice between Tanya and Clare. As agreed between the parties, I can make no finding and have received no evidence regarding cultural and spiritual matters. The considerations I must therefore balance are Clare’s entitlement to apply for letters of administration in DM’s intestate estate, the wishes and sensitivities of Clare and Tanya being his living closest relatives, and any evidence I accept of DM’s wishes.
DM died without a will or a pre-planned funeral. As DM was not married or in a domestic partnership when he died, his only child Clare ranks highest in priority to apply for letters of administration in his intestate estate. The nature and closeness of Clare’s relationship with DM is of the utmost importance and should be accorded greater weight than Tanya’s relationship with DM. These considerations must be balanced with the evidence regarding DM’s wishes.
DM lived and worked most of his life in the Flinders Ranges, around Hawker. The graves of his deceased relatives are in proximity in the northeast corner of the Hawker Cemetery where many other Aboriginal persons are buried. He had a close and loving relationship with Clare. He had a close relationship with Tanya and other members of his family.
Noting that DM lived and worked in and around Hawker for most of his life and continuously for at least the last 12 years, I accept that he would have been engaged in the discussions deposed to by Tanya, Julia, Narelle, Pauline, and Trevor.
I am satisfied the evidence establishes that DM had discussions with Tanya, Julia, Narelle, Pauline, and Trevor regarding his wish to be buried in the Hawker Cemetery, close to his family. His family includes Clare. Clare deposed that she wanted DM buried close to FM and was informed by the Flinders Ranges Council that, due to limited space in the Hawker Cemetery, the closest available plots were 10 to 15 paces from FM’s grave. Clare also gave evidence that the non‑Adnyamathanha people buried in graves near those available plots were people who had been close to DM. I infer from Clare’s evidence that until she and her mother are interred, DM’s grave would be surrounded by the graves of non‑Aboriginal people.
It is reasonable to infer that DM wanted to be buried in Hawker Cemetery, close to his family members who predeceased him and eventually his daughter, who wishes to be buried next to her parents.
I find that during his lifetime DM expressed his wish to be buried in the Hawker Cemetery close to family who predeceased him and, following the death of JM in 2014, expressed the wish to be buried next to JM.
I find Julia purchased the leases to 11 plots in the Hawker Cemetery in 2012 consequent upon family members (including DM) becoming aware of the limited availability of plots and expressing the wish to be buried close to each other. One of the plots, plot 2980, became JM’s grave.
In balancing common law principles and practical considerations, including taking into account the wishes of DM, Clare, and Tanya, I embrace the following sentiments of Doyle CJ in In the Estate of Jones (Deceased); Dodd v Jones:[28]
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 one would truly call a legal judgment. I understand and respect the wishes and beliefs of the plaintiff and of the defendant. 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.
[28] [1999] SASC 458 at [36].
The appropriate resolution to the dispute is to make orders in accordance with the open offer whereby Julia (noting she has deposed she will abide by orders of the Court regarding the plots) assigns plots 2985, 2987, and 2989 in Hawker Cemetery to Clare in order that DM be buried in plot 2985, Clare can be buried next to him in plot 2987 if she wishes, and Jillian can be buried in plot 2989 if she wishes.
I will hear from the parties regarding the form of orders to be made.
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