Minister for Families and Communities v Brown - [2009] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MINISTER FOR FAMILIES AND COMMUNITIES v BROWN & ORS
[2009] SASC 86
Judgment of The Honourable Justice Gray
2 April 2009
SUCCESSION - EXECUTORS AND ADMINISTRATORS - RIGHTS, POWERS AND DUTIES - BURIAL, AND ERECTION OF TOMBSTONES
Application by Minister for Families and Communities seeking order with respect to disagreement concerning burial of intestate deceased - Minister sought declaration to direct undertaker to bury deceased or release body of deceased for burial by family members - two applications for funeral assistance made to Minister - deceased of Aboriginal descent and single at time of death - defendants unable to reach agreement on burial site for deceased - first and second defendants submitted that deceased should be buried at her birthplace, Coober Pedy, in accordance with traditional beliefs - third, fourth and fifth defendants submitted that deceased should be buried at Point McLeay with her deceased de facto partner - second and third defendants shared position to apply for grant of letters of administration in intestacy - relevant considerations to determine place of burial.
Held: body of the deceased to be delivered to third, fourth and fifth defendants to determine manner and place of burial - consideration given to practical circumstances and lifestyle as practiced by the deceased where persons share equal position to apply for grant of letters of administration in intestacy.
Family and Community Services Act 1972 (SA) s 10; Births, Deaths and Marriages Act 1986 (SA) s 36; Adoption Act 1988 (SA) s 9(1); Family Relationships Act 1975 (SA) s 11A and s 11B; Administration and Probate Act 1919 (SA) s 4, referred to.
Williams v Williams (1882) 20 Ch D 659; Calma v Sesar (1992) 2 NTLR 237; Smith v Tamworth City Council (1997) 41 NSWLR 680; Meier v Bell [1997] Supreme Court of Victoria (Unreported, Ashley J, 3 March 1997); Jones v Dodd (1999) 73 SASR 328; In the Estate of Jones Deceased; Jones v Dodd [1998] Supreme Court of South Australia (Unreported, Debelle J, 10 July 1998); Smith v Tamworth City Council (1997) 41 NSWLR 680; Joseph v Dunn [2007] WASC 238; AB v CD [2007] NSWSC 1474; Burrows v Cramley [2002] WASC 47; In the Estate of David Jones Deceased; Dodd v Jones [1999] SASC 458, considered.

MINISTER FOR FAMILIES AND COMMUNITIES v BROWN & ORS
[2009] SASC 86
Civil
GRAY J.

This is an application by the Minister for Families and Communities seeking an order in relation to a disagreement concerning the place of burial of an intestate deceased.
The Department of Families and Communities operates a funeral assistance program, pursuant to section 10 of the Family and Community Services Act 1972 (SA), which provides financial and other assistance where a person has died with limited financial means and where there is no source of funding for the holding of a funeral. The Minister is seeking a declaration to direct an undertaker to bury the deceased or to release the body of the deceased for burial at the request of her family members. The Court is being asked to decide where the deceased is to be buried.
Disputes involving burial rights are justiciable before this Court as part of its inherent jurisdiction. It is not provided for by statute.
Factual Background
The deceased died on 31 January 2009 in the Queen Elizabeth Hospital at Woodville, aged 56 years.A medical certificate of the cause of death as required under section 36 of the Births, Deaths and Marriages Act 1986 (SA) was signed the same day. The certified cause of death was cardiac arrest.
The deceased was of Aboriginal descent and was single at the time of her death. Her former de facto spouse, Cornelius Rankine, pre-deceased her. The first defendant, Dawn Margaret Brown, is the younger sister of the deceased. The second and third defendants, William and Heather Lang, are the adult children of the deceased.
The fourth defendant, Jodie Ellis, is the adult biological daughter of the deceased and the adopted daughter of Paulene Barbara Ellis and Donald William Ellis. The fourth defendant established contact with the deceased some years before her death and appears to have had a significant relationship with her. At the hearing, counsel for the Minister submitted that, although Ms Ellis is not a child for the purposes of the law,[1] she should be able to fully participate in the matter rather than be excluded on the basis of a legal fiction. This is a view I share.
[1] Section 9(1) of the Adoption Act 1988 (SA) provides:
Subject to this section, where an adoption order is made, the adopted child becomes in contemplation of law the child of the adoptive parents and ceases to be the child of any previous birth or adoptive parents.
The fifth defendant, Margaret Brown, was given leave at the hearing to be joined as a defendant. She is a half-sister of the deceased.
There is a dispute between the members of the family as to the wishes of the deceased with respect to her place of burial. Two applications for funeral assistance have been made to the Minister.
The Minister has agreed to arrange and pay for the costs of a funeral, and has taken possession of the remains of the deceased. The remains of the deceased were removed from the Queen Elizabeth Hospital by Fulham Funerals SA Pty Ltd, an undertaker, and are currently stored at their premises pursuant to a contractual arrangement between the Minister and the undertaker.
The defendants are unable to reach agreement on a burial site for the deceased. A mediation was conducted by the Aboriginal Legal Rights Movement in an attempt to resolve the matter. This has delayed the funeral, during which time the deceased has been embalmed at the expense of the Minister, incurring a daily storage fee. The matter has proceeded with urgency due to the dignity of the deceased, the potential need for further embalming of the body to preserve it if the matter is delayed further as well as the ongoing cost and inconvenience of storing the body of the deceased.
A declaration has been sought against the defendants that the Minister is entitled to direct the undertaker to bury the deceased or release the body of the deceased. Counsel for the Minister submitted that the Minister wished to adopt a neutral position as to the disagreement regarding the place of burial of the deceased.
In support of the respective defendants’ contentions, affidavits and statutory declarations have been filed and received as evidence on the application from Ms Dawn Brown, Mr Lang, Ms Lang, Ms Ellis and Ms Margaret Brown. Affidavits deposing to the wishes of the deceased have been filed by Lola Haines, a niece of the deceased, Frank Jackson, a family friend of the deceased, Heather Jackson, a former carer of the deceased and Betty Gibson, a friend of the deceased. Where I refer to statements or evidence of these persons, it may be understood that I am referring to statements appearing in their affidavits.
Ms Dawn Brown and Mr Lang have expressed their desire for the deceased to be buried at her place of birth, Coober Pedy. It was said that she was a traditional tribal woman of the Yankunytjatjara Clan, whose traditional country was the Coober Pedy area. They have stated that it is Yankunytjatjara belief that if the deceased is not buried in her traditional lands, her spirit will not be at peace. It is said that the deceased expressed the desire that she be buried in her traditional lands.
Ms Lang, Ms Ellis and Ms Margaret Brown wish for the deceased to be buried at Raukkan, also known as Point McLeay. They have said that the deceased expressed a desire to be buried at Raukkan with her de facto partner, Cornelius Rankine, who died before her. There was documentary evidence that the deceased had entered into a purchase arrangement with S D Tillett Memorials for a headstone for Mr Rankine. It is said that she wished her name to be added to the headstone. The deceased expressed her desire to be buried with Mr Rankine on various occasions to different persons, including Ms Ellis, carers and a Pastor.
On the papers and at the hearing it became evident that there was a rift in the family, which has manifested itself in this unfortunate series of events. Mr Jackson stated that there was “bad blood” between children of the deceased, between Mr Lang on the one hand and Ms Lang and Ms Ellis on the other.
There is conflicting evidence as to the duration of the deceased’s de facto relationship with Mr Rankine.[2] It may be taken that they were in a relationship for a period of at least eight years.
[2] The second affidavit of Dawn Margaret Brown, who is resident in Coober Pedy, deposed that the deceased and Ms Rankine were in a relationship was of approximately 8 years’ duration. The affidavit of Lola Haines, who is resident in Adelaide, deposed that deposed that the deceased and Ms Rankine were in a relationship was of approximately 17 years’ duration.
Lola Haines attested to the urgent nature of the matter and the unsettling impact it had had on the deceased’s extended family. She deposed that the deceased was somewhat estranged from her son, William, and that spiritually, she would be most at peace buried next to Mr Rankine, whom she referred to as the deceased’s “husband”. This provides some insight into the nature and significance of their relationship.
According to Betty Gibson, the deceased was a tribal woman but considered Adelaide to be her home of some 30 to 40 years. Heather Jackson deposed that she had been the deceased’s carer for at least five years and that she wished to be buried at Raukkan.
Relevant authorities
It is generally accepted that there is no property in a dead body, and that the deceased’s body is incapable of ownership by any person.[3] As a general rule, it is the executors or the administrators of the estate of the deceased who have the right of property in the body.[4] Moreover, desires expressed by the deceased as to the place of burial are not conclusive. As the deceased has died intestate, other persons have a duty to bury the body of a deceased person.
[3] Williams v Williams (1882) 20 Ch D 659, 665 (Kay J).
[4] Calma v Sesar (1992) 2 NTLR 237; Smith v Tamworth City Council (1997) 41 NSWLR 680; Meier v Bell [1997] Supreme Court of Victoria (Unreported, Ashley J, 3 March 1997).
The approach to be taken by this Court when considering matters relating to the burial rights of those who have died intestate was outlined by the Full Court in Jones v Dodd.[5]In his judgment, Perry J observed:[6]
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 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.
It is true that in Calma v Sesar, (1992) 2 NTLR 37. Martin J, after referring to “… matters relating to burial in a homeland and the profession of the Roman Catholic faith: observed:
“… issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except insofar as they reflect a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values.” He went on to say:” The conscience of the community would regard fights over the disposal of human remains such as this unseemly. It requires that the court resolve the argument in a practical way, paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.”
(Emphasis added.)
In my opinion, proper respect and decency compel the courts to have some regard to what Martin J there refers to as “spiritual or cultural values”, even if the evidence as to the relevance of such considerations in a particular case may be conflicting.
This is not to say that the Court should have regard to expressions of pure emotion or arbitrary expressions of preference.
At the end of the day, pragmatic features of the case, such as those which were regarded by Martin J as decisive in Calma v Sesar have their place. But despite the difficulty of doing so in cases where there are conflicts in the evidence and a limited opportunity to resolve the conflicts, the court must nonetheless proceed as best it can to pay due regard to whatever cultural or spiritual factors arise.
[5] Jones v Dodd (1999) 73 SASR 328.
[6] Jones v Dodd (1999) 73 SASR 328, 336-337 (Perry J).
Perry J observed that due weight must be given to the views expressed by the deceased’s children.[7] He concluded:[8]
Here, the views put forward by the appellant on behalf of the deceased’s two children have been carefully considered, both by Debelle J and this Court. But they are not to be regarded as determinative of the issue. They must be balanced against the other considerations, more particularly relevant Aboriginal cultural and spiritual values.
[7] Jones v Dodd (1999) 73 SASR 328, 338 (Perry J).
[8] Jones v Dodd (1999) 73 SASR 328, 339 (Perry J).
Perry J held as follows:[9]
In any event, as I have explained, the common law principles, to the extent that they may be relevant, have regard to the extent of interest in the estate and eligibility to apply for a grant of letters of administration in intestacy, rather than on “kinship”. But as I have explained, such so-called principles are no more than a convenient method of approach to some cases, rather than a hard and fast rule. Furthermore, that approach is irrelevant where there is no estate and no likelihood of a grant ever being applied for.
In all cases, consideration should be given to cultural, spiritual and religious factors, where such factors are present.
In this case, those factors should be given appropriate weight, given that they were emphasised by the deceased’s father. According to the evidence, which in this respect was unchallenged, the views of the head of the family should prevail in such matters.
[9] Jones v Dodd (1999) 73 SASR 328, 339 (Perry J).
At first instance, Debelle J reached the same conclusion with different reasoning:[10]
I am very conscious of the fact that it has been necessary to resort to principles of common law to resolve this difficult and sensitive dispute. In matters relating to burial, it is appropriate to have regard to Aboriginal law and custom. In that respect it is relevant to note the undisputed evidence that, as the plaintiff is the father of the deceased and head of the family, he is the person empowered to make decisions in respect of family issues of this kind. On this issue, the common law and Aboriginal customary law appear to coincide.
In reaching this decision, I have been very much aware of the deep-seated desire of Ms Dodds that her former de facto husband should be buried near where the children now reside and where it is likely that they will continue to reside, at least in the immediate future. I am also very conscious of the emotions of the two children and their natural desire that their father will be buried near where they live so that they might tend his grave.
Equally, there are strong desires among other members of the family that the deceased should be buried at Oodnadatta. In emotional terms the conflict is incapable of resolution. It is unfortunately necessary to resort to legal principle to resolve an issue which the parties themselves cannot resolve. Without, I trust, being in any sense priggish or sanctimonious I hope that the defendant, Ms Dodd, and the children will understand that the order that the deceased be buried at Oodnadatta has been made because that is how this dispute is resolved not only by the rules of common law but also by the rules of Aboriginal customary law.
In this connection it is appropriate to refer to an affidavit sworn and tendered on behalf of Ms Dodd, an affidavit of Arnold Dodd. The affidavit was sworn after all of the evidence had been tendered and argument had been heard. It was sworn today. In that affidavit Mr Dodd, who is a Field Officer with the Aboriginal Legal Rights Movement based at Port Augusta, says that in his view the deceased is not a traditional Aboriginal as he has been brought up in the ways of the white man.
I have had regard to that evidence but I do not believe it is of any assistance in resolving the issues in this case. There are several reasons for that view. First, it is well-known that, although an Aboriginal might not be a traditional Aboriginal, he may nevertheless believe that he is in one respect or another bound by particular aspects of Aboriginal law and custom. Secondly, it is very difficult me to understand without further enquiry what is meant by the statement that the deceased is not a traditional Aboriginal. Thirdly, as the reasons already given demonstrate the same result is reached if one has regard to the rules of the common law or the rules of Aboriginal customary law. Thus the assertion that the deceased is not a traditional Aboriginal does not materially affect the resolution of the issues in this matter.
[10] In the Estate of Jones Deceased; Jones v Dodd [1998] Supreme Court of South Australia (Unreported, Debelle J, 10 July 1998) 4.
It was accepted at the hearing that the authorities are of limited assistance in the present case. In particular, the leading judgment of Perry J in Jones v Dodd does no more than outline factors to be taken into account by this Court in determining where the deceased is to be buried. It does not establish or identify any guiding principles or test to be followed in these cases.
In the Estate of David Jones Deceased; Dodd v Jones,[11] Doyle CJ held that the plaintiff (the deceased’s spouse) was entitled to bury the deceased at Port Augusta, as against the traditional wishes of the deceased’s family to bury the deceased at Oodnadatta. Doyle CJ took into account the period of time the deceased and plaintiff had lived together and the fact that the plaintiff was entitled to a declaration under section 11B of the Family Relationships Act 1975 (SA), that she was the deceased’s putative spouse at the time of his death.[12] In that case, it followed that the de facto spouse of the deceased would thus have a claim to be appointed administrator of the deceased’s estate if one were to be appointed.[13] Doyle CJ observed the common law position to be that the person with the best claim to letters of administration has the right to determine deceased’s place of burial, and noted that the deceased did not leave a will and that it was unlikely that letters of administration would be taken out.
[11] In the Estate of David Jones Deceased; Dodd v Jones [1999] SASC 458.
[12] Section 11A of the Family Relationships Act 1975 (SA) provides:
A person is, on a certain date, the "domestic partner" of another person if he or she is, on that date, living with that person in a close personal relationship and-
(a)he or she-
(i)has so lived with that other person continuously for the period of 3 years immediately preceding that date; or
(ii) has during the period of 4 years immediately preceding that date so lived with that other person for periods aggregating not less than 3 years; or
(b) a child, of whom he or she and the other person are the parents, has been born (whether or not the child is still living at that date).
[13] Section 4 of the Administration and Probate Act 1919 (SA) provides:
[P]utative spouse", in relation to a deceased person, means a person adjudged under the Family Relationships Act 1975 to have been a putative spouse of that person as at the date of his death.

In Smith v Tamworth City Council,[14] Young J, as he then was, held that in the absence of a surviving husband, wife or de facto spouse, the right to burial vests in the next of kin, in order of their relationship to the deceased: children of full age, parents, brothers and sisters or more distant kin, in that order. The common law and Aboriginal customary law with respect to the degrees of kinship in this case do not coincide. The “letters of administration” rule does not assist in this case, as, on the basis of Young J’s judgment, both Mr and Ms Lang, as the deceased’s children, have an equal footing or common position in law. Furthermore, the reasoning of Debelle J is not strictly applicable, as in that case the plaintiff was the deceased’s father and was thus the deceased’s next of kin at both common law and in customary law.
[14] Smith v Tamworth City Council (1997) 41 NSWLR 680.
There is a line of authority that deals with burial disputes between parents of a deceased.[15] The approach to be taken when resolving a dispute over the right to bury an intestate deceased between those of equal kinship was addressed by Pullin J in Burrows v Cramley.[16]In that case, the deceased’s parents, who resided in different states, could not reach agreement as to where the deceased should be buried. In contentious cases such as the present case, where both Mr and Ms Lang have a right to apply for, and each are likely to be granted, letters of administration, Pullin J considered:[17]
I am therefore driven back to a consideration of practicalities. I will take into account family associations insofar as they are relevant to the consideration of the practicalities of the situation.
[15] Joseph v Dunn [2007] WASC 238; AB v CD [2007] NSWSC 1474.
[16] Burrows v Cramley [2002] WASC 47.
[17] Burrows v Cramley [2002] WASC 47 at [30] (Pullin J).
Pullin J described his approach as the “balancing [of] practical considerations”.[18] He considered who provided the greater care and comfort for the deceased, the deceased’s place of residence and the nature of the relationships maintained, and observed that “evidence about where the deceased lived and why, is relevant”.[19] I respectfully agree with this approach.
[18] Burrows v Cramley [2002] WASC 47 at [32] (Pullin J).
[19] Burrows v Cramley [2002] WASC 47 at [32] (Pullin J).
Pullin J also considered the feasibility for concerned persons to attend the deceased’s funeral. This is relevant in the present case, where it appears many of the parties are dependent on government benefits for survival, may not be able to meet the cost and expense of attending a funeral in Coober Pedy. Further, it may not in be possible for many of these same friends or relatives to visit the grave as they wish. Raukkan, or Point McLeay, is approximately 82 kilometres from Adelaide, and may be considered as more accessible to those wishing to attend the funeral and visit the grave of the deceased.
Pullin J considered that a deceased should be buried close to the place of their death. He acknowledged that it is not unusual for bodies to be flown to other locations, but observed that “that will occur in circumstances where the purpose is to achieve burial in the place where all concerned agree burial should take place”.[20] Pullin J considered the above considerations to be determinative of the dispute between the parents of the deceased. The facts in Burrows v Cramley were significantly different in that the dispute centred more on the feasibility of grave visiting and two persons of equal kinship residing interstate.
[20] Burrows v Cramley [2002] WASC 47 at [36] (Pullin J).
It has been necessary to consider to the lifestyle, relationship and practices of the deceased in order to give effect to the factors outlined in the approaches of Pullin J in Burrows v Cramley and that of the Full Court in Jones v Dodd.
Doyle CJ In the Estate of David Jones Deceased; Dodd v Jones[21] observed that the claim of the deceased’s “surviving partner” would be widely respected in Australian society,[22] particularly their desire to visit the grave and other matters relating to grief. Doyle CJ based his reasoning on the significant value accorded de facto relationships by members of the community, particularly in recent years. The outcome in that decision also accords with the common law position that burial rights are accorded to the person in a position to apply for a grant of letters of administration in intestacy.
[21] In the Estate of David Jones Deceased; Dodd v Jones [1999] SASC 458.
[22] In the Estate of David Jones Deceased; Dodd v Jones [1999] SASC 458 at [33].
The facts of the present application strongly favour the claim of Ms Lang and Ms Ellis. The family unit between the deceased and her former de facto was located in Adelaide. It was submitted that Raukkan, or Point McLeay, was significant as a place of burial for the couple as it was the former home of Mr Rankine. Moreover, I consider the purchase of a headstone for her deceased de facto and her wish to have her name added to the headstone to be significant factors in determining the wishes of the deceased. The deceased maintained a strong relationship with Ms Lang. On the papers it is clear that the deceased established a relationship with Ms Ellis.[23]
[23] The affidavit of Jodie Barbra Ellis deposes that the deceased and the deponent met in 1986, through an organised meeting of the deponent’s adoptive mother.
There was evidence that the lifestyle as practiced by the deceased did not adhere to traditional Aboriginal practices and customs.
Mr and Ms Lang, as the deceased’s children, are each able to file a claim to letters of administration. It is to be acknowledged that the next of kinship rule is not to be rigidly applied.[24] However, in the present application, both the common law approach and the next of kinship approach of customary law as adopted by Debelle J reach the same conclusion and favour the second and third defendants equally. I consider that the decision of the Full Court in Jones v Dodd, and the factors outlined in that authority provide a clear basis to find in favour of Ms Lang, Ms Ellis and Ms Margaret Brown. The weight of the evidence strongly supports their request. In these circumstances, I have concluded that the burial should be at Raukkan, also known as Point McLeay.
[24] Jones v Dodd (1999) 73 SASR 328, 336 (Perry J).
Order
That the plaintiff is entitled to deliver the body of the deceased to Ms Lang, Ms Ellis and Ms Margaret Brown so that they may make arrangements as to the manner and place of burial.
That Ms Lang, Ms Ellis and Ms Margaret Brown are entitled, as against the first and second defendants, to bury the deceased at Raukkan, or Point McLeay, if they wish.
That three days’ notice of the funeral should be given in “The Advertiser” providing detail of the funeral arrangements and that all family members be permitted to attend.
That there be no orders as to the costs of the application and order.