Milson v Milson

[2020] NSWSC 919

Supreme Court

New South Wales

Medium Neutral Citation:

Milson v Milson [2020] NSWSC 919

Hearing dates:

2, 3 July 2020

Decision date:

20 July 2020

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See [85]-[87]

Catchwords:

SUCCESSION – burial rights – whether wife or mother should have carriage of the funeral and custody of the deceased's body – burial or cremation – consideration of deceased’s identification as Aboriginal man of Wiradjuri culture – where deceased had separated but not divorced from his wife – where deceased’s and deceased’s children’s wishes were that he be cremated

Legislation Cited:

Cemeteries and Crematoria Act 2013 (NSW)

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Cases Cited:

In the Estate of Jones (Deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458

NoaNayacakalou v Raeleen Vincent [2020] NSWSC 24

Reece v Little [2009] WASC 30

State of South Australia v Smith [2014] SASC 64

White v Williams (2019) 99 NSWLR 539

Texts Cited:

n/a

Category:

Principal judgment

Parties:

Julie Milson (plaintiff/first cross defendant)
Elisha Milson (first defendant/first cross claimant)
Deputy State Coroner Derek Lee (second defendant/second cross defendant)
Christopher Anderson-Milson (second cross claimant)

Representation:

Counsel:
D P O’Connor (plaintiff/first cross defendant)
D M Roberts (first defendant/first cross claimant)

Solicitors:
Sionea Breust, SCB Legal (plaintiff/first cross defendant)
Keith Gregory Sneddon (first defendant/first cross claimant)
Karen Smith, Crown Solicitor for NSW (second defendant/second cross defendant)

File Number(s):

2020/00148683

Judgment

The proceedings

1. These proceedings concern a dispute between the plaintiff (the mother) and the defendant (the wife) as to whom the Court should grant letters of administration to for the purpose of the burial of the remains of the deceased who took his own life on 27 April 2020. Both plaintiff and defendant have sought a grant of letters of administration for that purpose. As a fall back and perhaps in the alternative the defendant’s son has also sought a similar order by way of cross claim. I note that the second defendant, the Deputy State Coroner, filed a submitting appearance.

2. The deceased was an Aboriginal man. The plaintiff, who lives in Cobar, seeks to have the deceased buried on country in Gilgandra, whereas the defendant, who lives at Beresfield (a suburb of Newcastle) with her three children, seeks to have him cremated and for his ashes to remain in her possession.

3. The plaintiff further asserts that the deceased being an Aboriginal man and member of the Wiradjuri tribe should be buried according to tribal custom and is strongly opposed to cremation. The defendant contends that as the wife of the deceased she should deal with his remains, as does his son in the alternative.

4. The plaintiff further asserts that the deceased and the defendant had for all relevant purposes ended their marriage, providing an additional reason as to why the plaintiff is the more appropriate person to be granted letters of administration. The defendant denies her marriage to the deceased was at an end. In any event as I have already mentioned her son by cross claim in the alternative seeks letters be granted in his favour.

Background

5. The deceased was born on 9 July 1979 in Gilgandra. His wife, the defendant, was born on 24 September 1978. The couple were married on 23 March 2002. They had three children, Christopher born on 24 April 2001, Amelia born on 15 December 2004, and Breanna born on 14 August 2007.

6. The deceased lived in Gilgandra with his mother until he was 14 years of age, when he moved out to live with his father.

7. Originally the defendant and the deceased lived in Orange in New South Wales which is where they met in 1996. They lived there for about eleven years. At all times during their relationship they lived in rental accommodation.

8. For a time they lived in Cobar and then they moved to Singleton in 2009, then Cessnock in 2011, Raymond Terrace in 2015 and finally to Beresfield.

9. In about 2015 the defendant discovered the deceased was having a relationship with at least one if not two women. The couple separated and the defendant left the matrimonial home with the children for a period of about two weeks, after which time the parties reconciled. However, relations between the two became strained in approximately March this year and the parties separated again.

10. The deceased by agreement moved out of the matrimonial home on 17 March and moved into a cabin in a caravan park at Heatherbrae, near Raymond Terrace.

11. There is a dispute on the facts as to how often the parties saw each other between 17 and 22 March and indeed thereafter until his death.

12. It is uncontroversial that the deceased was having a relationship with Ms Lisa Bojkowski, a married woman, from about February. That relationship was conducted in secret and the defendant asserts she only discovered it as a result of these proceedings.

13. An incident occurred on 22 March between the deceased and the defendant which culminated in the police being called. An interim AVO was issued in favour of the defendant as against the deceased.

14. On 21 April at about 11.30pm the defendant received a text message from the deceased which included a photograph of him with a belt tied around his neck, holding up the belt to mimic a noose.

15. The defendant asserts she tried to contact the plaintiff by text message to which she received no response.

16. The defendant asserts that the deceased slept the night prior to 27 April 2020 at the matrimonial home and in the same bed as the defendant. On the morning of 27 April he went to Raymond Terrace High School to pick up some materials for his daughter, Amelia, due to the COVID-19 school closures. Having collected the materials, he returned to the house at about 9.30am where the defendant assisted him with an online Centrelink application. He then left to attend a 10am doctor’s appointment.

17. He later returned to the house in a distressed state. He had been given a script from his doctor for antidepressants but had not had it filled.

18. The deceased went outside ostensibly to have a cigarette. The defendant heard a loud bang. She thought it was just their dogs. Approximately ten minutes later she went outside to discover the deceased hanging from a rafter of the garage roof. She attempted CPR but was unable to revive him. His remains are in the custody of the Deputy State Coroner pending the resolution of these proceedings.

Legal Principles

19. As I recently observed when I reviewed the authorities in White v Williams (2019) 99 NSWLR 539 at 542-544 (a not dissimilar case) the starting point is that there is no property in human remains but if the deceased left a will, the executor has the right to arrange the burial. If on the other hand the deceased dies intestate, the administrator is in the same position.

20. Section 63 of the Probate and Administration Act 1898 (NSW) identifies the persons to whom the court may grant administration of a deceased’s estate. They include the spouse of the deceased and/or the next of kin. As I also pointed out in White v Williams the Succession Act 2006 (NSW) then guides who will be considered next of kin and given priority with respect to the grant of administration. Relevantly, priority is usually given to the surviving spouse (Pt. 4.2, Div. 1 & 3), then any surviving children of the deceased (s.127) and then the parent of the deceased (s.128).

21. In matters such as the present the court exercises its inherent jurisdiction. And because the deceased was an Aboriginal man that fact alone gives rise to its own special and important considerations.

22. The remarks of Doyle CJ, Chief Justice of South Australia, in the matter of In the Estate of Jones (Deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458 remain entirely pertinent where he said (at [29-[32]):

“[29] In the end, it seems to me that I am confronted with two fairly clear and opposing claims. One is the claim of a de facto spouse, which has some support by reference to common law principles, and also gets the support of community attitudes that are fairly widespread in Australian society. The other is the claim of the father, which is supported by genuinely held beliefs about Aboriginal custom and law, beliefs which should be respected as far as possible.

[30] There are a number of cases suggesting that usually the person with the best claim to the letters of administration of the estate of a deceased, who dies without making a will, have the right to determine the place and manner of burial. I refer to two in particular, they are Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680 and Meier v Bell, Butterworths Unreported Cases BC 9700457. In Jones v Dodd [[1999]] SASC 125; 202 LSJS 102 the Full Court accepted that this was the usual approach. That is, by the usual approach I mean the reliance on these common law principles. But the Full Court did not accept that this was a binding principle to be applied in all cases, especially if there was no likelihood that letters of administration would be obtained: at 111 in particular. Perry J, with whose reasons the other members of the court agreed, said in particular at 111:

‘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 matter in question.’

[31] To understand that statement in context, it is important to bear in mind that Perry J did recognise that what I might call the common law approach, was the usual approach. He merely said it was one not to be rigidly applied.

[32] Also in considering that statement I have to bear in mind that while the wishes and views of the defendant could be classed as religious and spiritual, and perhaps the wishes and views of the plaintiff cannot, nevertheless the plaintiff’s own beliefs have cultural significance because they are beliefs that would be widely shared in contemporary Australian society.”

23. The approach which I considered to be the correct one having considered subsequent authorities was that such a case requires a balancing of common law principles and practical considerations as well as attention to any cultural, spiritual and /or religious factors that are of importance.

24. As is the case here the deceased had no assets to speak of and died intestate. There are some monies (unquantified) in a superannuation fund and some modest personal possessions.

25. In the case of an intestate a spouse or de facto are obvious applicants for letters of administration. But in determining who is the best person however the nature of the particular relationship with the deceased is highly relevant. Views expressed by the deceased are important and it has been said that the views of the deceased’s children should be given very great weight (Reece v Little [2009] WASC 30 at [85], [86], [97] per Templeman J; see also State of South Australia v Smith [2014] SASC 64 at [72] per Nicholson J). But relevant religious, cultural and spiritual matters may also play a role and the authorities should be given considerable weight. Specific regard should be given to certain practices regarded as important by many Aboriginal people, in particular, the desire to be buried on country (that is, ancestral lands). But sometimes practical considerations may make that ideal unattainable.

26. In the end the court must make an evaluative judgment, taking into account all the relevant factors, including cultural and spiritual and the specific factual circumstances of the case.

27. There are some definitions in the Cemeteries and Crematoria Act 2013 (NSW) that are of some interest although they do not bear significantly on the outcome in this case. “Bodily remains” is said to mean:

the whole or any part of the body of a person who has died (whatever its physical state may be) but does not include the whole or any part of a body that has been cremated.

28. “Cremation” means “a process for the reduction of bodily remains by fire or heat, alkaline hydrolysis or by other means prescribed by the regulations.”

29. “Natural burial” of human remains means “burial in the ground”:

(a) without preparation of the remains using chemical preservatives and by containment of the remains only in a shroud or biodegradable coffin, and

(b) with no memorialisation on the interment site.

30. While “private burial” means:

placing human remains in a grave or vault located on private land where the area of landholding is 5 hectares or more and the location has been approved for that purpose by a local government authority or on other private land prescribed by the regulations.

31. It is of note that in Noa Nayacakalou v Raeleen Vincent [2020] NSWSC 24 (at [21(d)]) Professor Sue Greene, a Galari Wiradjuri woman and an expert called in that case, was of the view that in respect of an Aboriginal person being “buried” on country, “buried” could be used to mean to bury a body or to bury ashes. Professor Greene also said that traditionally, an Aboriginal person is buried but if the person dies off country, they may be cremated and their ashes returned to country; the decision was said to lie with the head person in the family (see [21(e)]).

The evidence

32. The plaintiff’s case involved the calling of three witnesses; herself, Ms Bojkowski and Mr Naden, the CEO of a Health Service in Coonamble and an operator of a funeral home. Only the plaintiff and Ms Bojkowski were cross examined.

33. The defendant gave evidence, as did her son, Christopher, and daughter, Amelia, all of whom were cross examined. Ms Ekert also gave evidence for the defendant but was not cross examined.

34. Before coming briefly to the evidence I should observe that no expert evidence was called by either side although an issue that arose in the proceedings was the attitude of Aboriginal people to burial as opposed to cremation, although depending on the circumstances a burial could conceivably take the place of a person’s ashes.

35. The plaintiff made three affidavits; one of 18 May 2020, one of 1 June 2020 and the third of 29 June 2020. Much of her evidence was limited to her belief and understanding because of its form. She purported to give evidence of the reason for the separation of her son from the defendant and other controversial matters to which she was not and could not have been privy. For example, how many times her son would stay at the home after he left and the circumstances leading to the making of an AVO against her son. She gave evidence that her son had entered a new relationship with Ms Bojkowski and that he wanted to spend the rest of his life with her (see [9], [12], [13], [14], [15] and [16] of the plaintiff’s affidavit of 18 May).

36. However, she also stated that the deceased was a proud Aboriginal man, part of the Wiradjuri tribe and proud of his culture and heritage and that he had participated in many Aboriginal activities. These facts were not really controversial but the extent of his activities was challenged.

37. She stated categorically that Aboriginal culture is against cremation and that she was not aware of any person from his family who had ever been cremated and that he had never mentioned ever wanting to be cremated (see [32], [34], [35], [43] and [45]).

38. Her wishes are that his remains be brought “home” to Gilgandra for the appropriate cultural ceremony and burial (see [48]-[49]). The ceremony would however incorporate aspects of his Christian heritage along with Aboriginal custom (see [50]-[51]). She also asserted (at [51]) that the deceased’s family would be put to shame if he was cremated and his soul would not be able to rest properly until he was buried on country. If cremated she and her family would lose all connections to him and there would be no-where for them to visit him ([55]). Finally the relationship between the defendant and the deceased was “well and truly over” and there was no intention to reconcile (see [64]-[73]).

39. Her affidavit of 1 June was largely responsive to other affidavits filed. However, she reiterated (at [15]) that because of his suicide the deceased needed to be returned for burial on country. However, annexed are some relevant documents which I will refer to below. Amongst other things she referred to a conversation with the deceased in which he told her his relationship with Ms Bojkowski was secret (see [18]). She stated that the defendant appeared intoxicated during a phone message in April and relayed many pieces of information generally critical of the defendant. She does, however, accept that she received a phone message from the defendant on 22 April in which the defendant said that she had a photograph of the deceased pretending to hang himself. She says she spoke to her son who assured her he would not do anything to harm himself (see [39]). The plaintiff apart from referring to Ms Bojkowski as the deceased’s partner (at [39]) states that she had not spoken to the defendant for two years but that she and the deceased spoke “regularly” (see [49]).

40. Annexed to this affidavit is a photograph of the deceased and Ms Bojkowski embracing and text messages. In particular, there is a text message in which the deceased expressed the view that Ms Bojkowski was “completely different” to the defendant. Other documents include materials relating to the events of 22 March. The plaintiff’s affidavit of 29 June attaches documents relating to her own Aboriginal heritage and that of the deceased from the Cobar Local Aboriginal Land Council.

41. In cross examination she said the deceased told her that he and the defendant had separated and that he was still staying at the house but sleeping in his daughter’s room (T.20). A couple of days later he told the plaintiff that he had been kicked out and that he would sleep in the car that night (T.20). When he had the AVO he could not go to the house but the defendant allowed the children to visit him in the caravan park where he was staying (T.20).

42. She was asked about how frequently she saw the deceased over the years. She appeared to accept that she saw less of him after he moved to the Newcastle area (T.22). She also appeared to accept that in the last few years she only saw him occasionally (T.23). She agreed the deceased and the defendant were married for twenty three years and that during that time he was a family man (T.23). The plaintiff agreed that during that time the deceased loved his children and that he loved his wife for “most of it” (T.24). The plaintiff said that she knew the deceased at one point was having a relationship with two women (T.24). In 2020 she spoke to the deceased whenever he called (T.25). He never told the plaintiff he was having trouble at work or suffering from mental stress (T.25). The plaintiff was it seems not called regularly by the deceased during March 2020 (T.26). She denied that her grandchildren tried to telephone her about her son’s problems (T.27). The plaintiff agreed that the deceased told her he was seeing a counsellor but she did not ask him the reasons why (T.27). She denied the deceased ever told her that he was seeking help for his mental health and/or to repair his marriage (T.28). She agreed the deceased was a good father (T.29). She wants the deceased buried in Gilgandra (T.30) and she agreed that the deceased had never discussed with her what would happen to his remains when he died (T.31).

43. She indicated that she was not aware of any Wiradjuri people who had been cremated (T.35) and that she would not participate in a funeral or a cultural ceremony in Newcastle (T.35). She does not want any of the ashes if a cremation takes place (T.36). Although she has not always had a good relationship with the defendant she would involve the defendant and the deceased’s immediate family in a funeral (TT.37-39). She agreed that the deceased and Ms Bojkowski, whose relationship commenced in March 2020, did not share a residence, finances, a bank account, property, car or children, and that the relationship was a secret (T.44).

32. Ms Bojkowski filed two affidavits, one dated 18 May 2020 and the other 4 June 2020. In the May affidavit she stated she first met the deceased in 2015 through lawn bowls (at [2]). Later in 2019 she and the deceased discussed their respective marriages and became friends on Facebook (see [10]). Their relationship started to “grow” from about mid February 2020. Having returned from a holiday to Bali with her husband she reconnected with the deceased (see [13]-[17]). She then stated (at [22]) that she and the deceased discussed relocating to Western Australia. She gave evidence about plans for their marriage and that they chose songs for the wedding and even decided on “catering” (see [24]). It was during one such conversation in 2020 the deceased said that he did not want to be cremated “…you’ve got to go home…” (T.53). At the conclusion of her first affidavit she requests the court to allow his family to have him home and buried with his people (see [35] – [36]).

33. Her subsequent affidavit is almost entirely devoted to responding to other affidavits. She has phone records she stated from the evening of 26 April. The balance of her affidavit is in effect a rebuttal of the defendant’s allegations about her ongoing relationship with the deceased. She also confirmed the relationship was a secret and it seems denied the relationship when questioned by her own son (see [46]).

34. She said that she believed she saw the deceased “every day”, even if only for a short period between 15 February and 26 April and that he stayed at her home on several nights (see [6]). She also stated (at [7]) she received over 3000 Snap Chat messages between 1 April and 27 April. Ms Bojkowski said that the defendant informed her via Facebook on 7 April that she and the deceased had separated. She stated she thought she and the deceased were in a committed relationship (at [20]).

35. In cross examination she said that her relationship with the deceased did not commence until she came back from a holiday with her husband (T.53). She contradicted this by saying that she and the deceased had a sexual relationship before she went to Bali with her husband in March 2020 (T.54).

36. She confirmed that she and the deceased owned no property, never lived together, undertook no household duties, and kept the relationship secret. But she added that she and the deceased “planned to acquire property” (T.55). She also clarified that the deceased was attempting to rebuild his relationship with his two sisters (T.55).

37. She first discovered the deceased had taken his own life at “8.06pm on the day that it happened” (T.58). She never suspected the deceased might do such a thing and as far as she was concerned she and the deceased were planning a future together (T.58). She also had no idea he had sent the photograph with the belt around his neck to his wife and he never discussed with her any internal conflict he was having (T.59).

38. Evidence on behalf of the plaintiff was also called from a Mr Phillip Naden. He was not cross examined. He stated that he was the CEO of a Health Service in Coonamble, operated a Funeral Home and was an Aboriginal man (see [1]-[3] of Mr Naden’s affidavit). He is a long standing friend of the Milson family which included the plaintiff. He said (at [7]-[8]) that burial on country was of significance. He gets many contacts about burial on country and of recent times he has facilitated 56 burials on country in the 18/19 financial year. He also requested that the court give possession of the deceased’s remains for burial on country (see [11]-[12]).

39. The defendant filed three affidavits; one dated 27 May, one dated 2 June and one dated 29 June 2020.

40. In the first affidavit she sets out the history of her relationship and marriage to the deceased and states that after the birth of her three children she suffered from postnatal depression. She asserted (at [21]) that for the most part she and the deceased had a happy marriage. The deceased assisted around the house and was very involved with the children (see [21]-[23]).

41. About five years ago she discovered the deceased was, she believed, seeing two women (see [26]). She took the children but returned two weeks later and she and the deceased reconciled (see [26]). She also outlined the deceased’s employment history and stated that recently he had been employed at a pet food company as a processor. Previously he had worked in the mines in Cobar. She considered she had had a close and loving relationship with the deceased.

42. Between February and March 2020 she felt that her relationship with the deceased became strained (see [27]). She states (at [30]) that during a discussion with the deceased in March and in the context of a discussion about a trial separation the deceased told the defendant he did not love her but he did love the children. On 17 March the deceased moved to a caravan park near Raymond Terrace ([31]). The defendant gave the deceased $1,120 towards his rent at the caravan park. During the period 17 to 22 March the deceased came to the matrimonial home every day and telephoned the defendant many times during the day (see [34]). The deceased told the defendant on one occasion that he had made a mistake in leaving and that he loved her (also at [34]).

43. On 22 March the deceased came to the house; the defendant was alone and a confrontation occurred. The defendant had had guests at the house, her friend, Michelle Ekert, and her boyfriend, who had left by the time the deceased arrived. The defendant called the police. However, following the events of 22 March, the defendant asserts the deceased called at the matrimonial home almost every day, mostly in the evenings (see [36]). On one occasion the deceased visited the defendant at her place of work. During a discussion the deceased burst into tears (see [37]). The deceased would also visit the home, have dinner and sleep over and stayed with the defendant on the evening before he died, sleeping in the same bed (see [39]).

44. On the day of his death the deceased went to Raymond Terrace High School to pick up some materials for his daughter Amelia. After he returned home the defendant helped him fill out a Centrelink application online. He told the defendant he had a doctor’s appointment. He came home and the defendant observed the deceased was sobbing ([42]). He told the defendant that the doctor had put him on antidepressants but he had not had the script filled ([42]). They hugged and the defendant told the deceased everything would be alright ([42]). The deceased went outside. The defendant went to the bathroom to have a bath and she heard a loud bang. She discovered the deceased hanging from a rafter in the garage (see [44]).

45. The defendant wants the deceased’s remains to be in Newcastle after cremation. The defendant asserts (at [62.10]) that she has always been faithful to the deceased. She asserts that at the time of the domestic violence on 22 March the deceased said that if the defendant rang the police he would say she was in bed with another man (see [62.14]). That is why she told the police she was in the bedroom with another man, which was not true; she was in fact alone ([62.14]). Further she had no knowledge the deceased was conducting a relationship until these proceedings.

46. The defendant said she is unable to say the deceased was a proud Aboriginal man. He would often say he was embarrassed about being Aboriginal. He did say he was a member of the Wiradjuri tribe and his totem was a sand goanna which he had tattooed on his arm. He also said he did not believe in Sorry Day (see [62.29]).

47. In October 2018, following the death of the defendant’s father, the defendant had a conversation with the deceased. Others including the children were present. The defendant recalled her daughters wanted a necklace made with a portion of her father’s ashes made into jewellery. The deceased said he would like to be cremated (see [62.44]).

48. The defendant’s second affidavit deals with her admission to the Maitland Hospital psychiatric unit. She sees her general practitioner and a psychologist via telephone because of COVID-19 ([4]-[5]). Each of the children has suffered emotionally as well ([8]-[11]).

49. The third affidavit deals with funeral arrangements.

50. The defendant agreed that after the deceased left the house he never returned to live at home before he died (T.71) but she said he was there most of the time. He never gave up the caravan park and his possessions were there when he died. She alleged she did not tell the police the truth about the events of 22 March because the deceased said if she did not tell the police a man was in her bedroom he would come back and she was frightened (T.73). It was put to the defendant that that version could not be the truth (T.74). This version was not in her affidavit it was suggested. She also denied a confrontation with the deceased on the day he died (T.77). She was shown a police report (Ex.P1). She maintained there was no confrontation (T.78). She denied telling the police she had ignored the deceased’s threats to kill himself (T.79). She denied the relationship with the deceased was finally at an end and that was the reason she reverted to her maiden name (T.80). She insisted the separation was still a trial (T.81). She only found out about Ms Bojkowski when the deceased died (T.84). She asserted that she and the deceased never really spoke of his Aboriginality (T.85). She agreed, however, that he identified as Aboriginal (T.86), and she also agreed that he probably was a proud Aboriginal man (T.87). She also agreed that persons in the Aboriginal community knew him as an Aboriginal man (T.89).

51. Ms Ekert filed one affidavit dated 22 May 2020. She said that she visited the matrimonial home on 22 March. She and her boyfriend stayed for a meal and left around 9pm. No other person was at the house during that time. She was not cross examined.

52. Mr Christopher Milson, the deceased’s son, filed one affidavit dated 27 May 2020. He said (at [7]) he always considered his family to be a generally happy one. He was close to his father and would from time to time spend time alone with his father in the absence of his sisters (see [8]). He noticed a change in his father’s demeanour in February this year (see [10]). His father denied he was seeing anybody else (see [11]). His father visited him on or about 3 March, when he was at his girlfriend’s house. He told his son he was looking for another job but again denied he was seeing anybody else (see [13]). The deceased left the home on 17 March but he was at home all the time. He would sometimes sleep in his sister’s room, sometimes in the defendant’s room (see [14]). On one occasion he asked his mother if she and the deceased could work things out. She said that they would work things out and were trying to do so (see [17]). He always knew his father was an Aboriginal man but it was rarely discussed at home (see [18]). After the family left Cobar he only saw his grandmother (the plaintiff) annually ([20]-[21]). He recalled an occasion when the whole family were discussing his maternal grandfather’s funeral and the fact that a cremation was planned. He recalled the deceased saying that he wanted to be cremated and “snippets of my ashes” put into jewellery (at [23]). He wants his father to be cremated as he wished and the ashes to remain in the Newcastle area (see [26]). In lieu of his mother, he would want to be regarded as “senior next of kin” and make an application for letters of administration (see [35]). In addition, on 25 April he observed his father staying at the matrimonial home as they ate their breakfast together (see [36]).

53. In cross examination he said that at times his father was a proud Aboriginal man (T95). He did not recall going to Aboriginal events with the deceased (T.96). But he did see his father as Aboriginal (T.97). He does not wish to visit a gravesite and wants his father cremated as that is what he wanted (T.97).

54. Ms Amelia Milson, the deceased’s daughter, filed one affidavit dated 27 May 2020. She said she had a close and loving relationship with her father (at [6]-[9]). She was always aware of her father’s Aboriginal heritage ([10]). She never met her paternal grandfather ([14]). However, when her father went to the caravan park, he was nonetheless frequently at the house or in the garden, lounge room or in the main bedroom. He would stay overnight at least three or four nights a week ([15]). On the evening of 26 April the deceased stayed at the house all night ([18]). She remembered her father on 27 April crying in the lounge room and she did not observe any arguments take place ([19]). She would like his ashes kept in Newcastle and a small amount made into jewellery ([22]-[23]).

55. In cross examination she said it was more important to have a keepsake than visit a burial site (T.100).

Consideration

68. There are a number of factual issues to be resolved before any of the relevant factors, properly can be weighed.

69. The first factual matter where there is a controversy is the state of the deceased’s marriage. What is clear is that at the time of his death he and his wife had agreed to a separation. But what is important is that they had not agreed on a divorce, nor on the evidence had divorce been discussed.

70. The deceased had at least taken a lease of some sort of cabin in a caravan park from 17 March but there is no evidence of any term. He had taken certain possessions there but apart from some items of clothing and some medication, little else. He had not, for example, any photographs or other personal items.

71. There is a dispute on the evidence as to how much time the deceased spent there as opposed to the matrimonial home. The respective protagonists comprise the defendant and her two children, Christopher and Amelia, on the one hand and Ms Bojkowski on the other. The impression both sought to give provided for stark contrast. The impression given by Ms Bojkowski was that after she returned from a holiday with her husband the deceased was rarely out of her company or he could not have been with his family. The latter conclusion was based in part on how often they communicated with each other. His family, on the other hand, would have it that he was at the house almost daily and on many days stayed overnight. It seems clear that, notwithstanding the AVO, the defendant permitted the deceased to see the children and attend the house regularly. There is undoubtedly exaggeration on both sides but on balance I prefer the evidence of the defendant and her two children.

72. There was an attack on the credit of the defendant on the basis that she must have been lying about her evidence about a man being in her bedroom on 22 March, and that there had been a confrontation with her husband on the morning he took his life. And there are police records to support these criticisms.

73. There are inconsistencies between what the defendant says occurred on the evening of 22 March and police records (see Annexure “E” of Julie Milson’s affidavit of 1 June 2020 which is a Court Attendance Notice addressed to the deceased and dated 25 March 2020). The defendant insists that she told an untruth to police about a man being in her bedroom that evening to placate the deceased who insisted that she concoct that story. She insists there was no man in her bedroom that evening. There was certainly no man there when Ms Ekert, a friend of the defendant, was at the house in the earlier part of the evening. Ms Ekert was not cross examined. It may be that the deceased thought that if the police thought the violence was based on jealousy it would somehow be explicable. The defendant denied ever being unfaithful to her husband and no evidence to the contrary was called.

74. Exhibit D1 is a recorded interview between the deceased and police officers at Maitland Police station on the afternoon of 25 March 2020 conducted as a result of the defendant’s complaint about the deceased’s behaviour towards her at her home on 22 March. For much of the interview the deceased is in tears and it runs for approximately thirty minutes. It is clear that the deceased attended the police station voluntarily and likewise participated in the interview. He stated that he and the defendant had separated and he was living in a caravan park. He went to the house on the evening of 22 March because he was worried about his daughter who the defendant had told him was ill and he could not get any information from the defendant about his daughter. He said that the defendant was at home and in the company of a male person whom he did not know who left immediately upon his arrival. He agreed that he assaulted the defendant. He was depressed and remorseful and rang the next day to apologise to the defendant. He said that the next day was their wedding anniversary (23 March). He was trying to get help because he had had thoughts of self-harming recently and said that he and the defendant had been seeking help in an attempt to rebuild their relationship. He also said that he had been staying over at the house from time to time to be with his children. Apart from the defendant and his children, he made no mention of any other family member or for that matter Ms Bojkowski.

75. The deceased presents during the interview as a man seriously in distress and in the midst of marital problems and clearly not coping. He is concerned for his family and especially his children. His version of arriving at the house and seeing an unidentified man, when coupled with what it appears the defendant originally told the police, does harm to her credit, along with what can be described as recent invention about concocting the story at the deceased’s request. In the end, in the absence of the deceased, the matter cannot finally be resolved. However, I consider in any event it does not matter. Even assuming there was a man at the house, what is much more important is the state of the deceased’s distress during the interview and his patent concern for his children and the defendant to the exclusion of anyone else. His own evidence does not in my opinion support the view that the marriage was at an end.

76. As to the alleged confrontation on 27 April, the defendant again denies such an event. However, again, police records would tend to suggest to the contrary (see Ex.P1, the COPS report with entry created on 27 April 2020). However, the defendant’s daughter, Amelia, gave evidence that she was at home on the morning of 27 April and did not observe any arguments take place on that day. It was not suggested to Amelia that she was telling untruths or mistaken when she said she did not observe any such arguments. Again, not without some hesitation, I accept the evidence of the defendant and her daughter.

77. There is no doubt that the defendant was the victim of domestic violence at the hands of the deceased but I am satisfied that the defendant loved the deceased nonetheless. And the defendant was the person, not his mother or Ms Bojkowski, with whom he shared his worries, anger and despair. He had never discussed ending his life with Ms Bojkowski and he assured his mother he would not do so. He sent neither of them the photograph depicting his own suicide. He told neither he was depressed nor it seems about going to the doctor in relation to his mental health.

78. Ms Bojkowski asserts she discussed their wedding with the deceased and the choice of a dress and the idea of she and the deceased acquiring property. I have no doubt her feelings were intense but the notion of the deceased, unless he told untruths, being able to afford such things or even making a contribution to them seems more than a little fanciful. In any event the duration (possibly eight weeks) of their relationship and the fact it was kept secret suggests it was at the very best in its infancy.

79. The plaintiff has asserted that the marriage was over, but on the facts as I see them I am not satisfied that it was. The defendant told her son she was trying to work things out with the deceased. True she had reverted to using her maiden name and to that extent was asserting her independence. There is also no doubt that the deceased was infatuated with Ms Bojkowski but on 25 March he told police that he and the defendant were seeking help to try and rebuild their relationship. He was clearly depressed about work and of course the restrictions caused by COVID-19 must surely have added to his stress. He was deeply conflicted about his relationship with Ms Bojkowski and the defendant and importantly his children. The text messages which comprise Ex.D3 are poignant. They show a couple trying to resolve conflict about themselves and in particular the deceased’s love for his children and how he felt he had let the defendant down. Notwithstanding what had occurred, the defendant clearly in my view wanted the deceased to come home. Sadly by now whatever relationship he may have had with Ms Bojkowski was entirely insufficient to get him through his depression. He felt he had no other way out but to take his life.

68. There is no controversy that the deceased was an Aboriginal man. Again, however, the issue is clouded by matters of degree. For example, the plaintiff places emphasis amongst other things on the fact that the deceased had his totem spirit, the goanna, tattooed on his arm in an Aboriginal design. However, it is to be observed from the record of interview (Ex.D1) that the deceased had multiple tattoos in addition to that one. From the defendant’s point of view the deceased to some extent downplayed his Aboriginality. I am unable to accept that evidence. I consider the children, however, gave a more balanced view, namely that the deceased identified as Aboriginal but his pride was exhibited much more modestly than the plaintiff suggests. It is of some significance that the deceased did not discuss with the plaintiff his wishes about how his remains should be treated on his death. That may say something about the degree of intimacy between the deceased and the plaintiff. She certainly never sought to raise the issue with the deceased.

69. There seems little controversy that for many Aboriginal people burial on country and therefore on ancestral lands is of great importance. However, whilst the plaintiff says that in her view cremation is contrary to Aboriginal custom, Mr Naden, himself an Aboriginal man and a funeral director, did not say so. Whilst he speaks of the importance of burial on country, he says nothing, but more to the point nothing negative, about cremation and he could so easily have said so had that been his view. Although no expert evidence was called by either side, it is of interest to say the least that in Noa Nayacakalou v Raeleen Vincent [2020] NSWSC 24 Professor Sue Greene, a Galari Wiradjuri woman and an expert called in that case, clearly was of the view for example that a person dying off county could be cremated and their ashes buried on country.

70. Importantly, however, there is evidence that the deceased wished to be cremated. He expressed that view at a family meeting which concerned funeral arrangements for the defendant’s father in October 2018. The defendant gave that evidence, as did her son, Christopher. In neither case was it suggested they had fabricated that evidence. It is also important that he never discussed such matters with his mother.

71. Ms Bojkowski says that she however recalled a conversation in March this year with the deceased about the defendant’s father’s funeral and how “he had been buried” and as a result Ms Bojkowski had said she wanted to be cremated to which the deceased said the opposite (see Ms Bojkowski’s affidavit of 18 May 2020 at [27] and T.530). I do not accept her evidence as reliable and indeed I regard it as highly implausible. First, I find it somewhat remarkable that she and the deceased happened to be speaking about the defendant’s father’s funeral (which took place it seems in 2018) in 2020 apropos nothing as it were. In addition, when she gave evidence in chief she said that the conversation had arisen because the deceased had discussed the defendant’s father being buried. In my view that simply could not have happened. From the unchallenged evidence of the defendant and her son the decision taken was for her father to be cremated and that the deceased was party to that discussion so he would not have been discussing the burial of the defendant’s father. In short, my impression is that in all likelihood at best Ms Bojkowski is mistaken about that or worse is making it up. In any event, I consider the best evidence of the deceased’s wishes is that he wanted to be cremated and I accept the evidence of the defendant and her son in that regard.

72. There is no doubt that, like their maternal grandfather, the children (that is Christopher and Amelia) want their father cremated. There are several reasons. First, not only as they see it is it their father’s wish, but he also wanted a keepsake made from a small portion of the ashes for each of the children and the defendant. In addition, they do not want to go to a gravesite but want the remaining ashes in the house and near them at all times.

73. I am of the view that the defendant should have the privilege of dealing with her husband’s remains. Notwithstanding the deceased was Aboriginal and notwithstanding the rocky nature of his marriage at the time of his death, he wished it seems to me to be cremated. Clearly not unmindful and notwithstanding his respect for his heritage, he put his family above it for entirely sentimental reasons. His wishes should be respected, as should the wishes of his wife, but most importantly should the wishes of his children. The beliefs and wishes of his mother are clearly to be respected as well but should not in all of the circumstances in my view govern the outcome in this case.

74. Therefore, I would dismiss the plaintiff’s summons and make the orders sought in paragraphs one and two of the defendant’s First Cross-Claim Cross-Summons filed 28 May 2020. The relief sought in paragraph one is that the defendant (and first cross claimant) be appointed as administrator of the estate of the deceased “for the purpose of a special grant of administration, custody of the Deceased’s body and authorisation to arrange the funeral and cremation of the Deceased.” The defendant has not applied for a general grant of administration. In my view it would be appropriate for the defendant to be appointed the administrator of the deceased’s estate if further application was made. If for any reason I had rejected the defendant’s claim, I would have had no hesitation in granting the same relief to the deceased’s son.

75. I invite the parties to bring in short minutes reflecting these reasons and if necessary I will hear the parties further on the questions of costs.

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Decision last updated: 20 July 2020