Mourish v Wynne - [2009] WASC 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MOURISH -v- WYNNE [2009] WASC 85

CORAM: LE MIERE J

HEARD: 30 & 31 MARCH, 1 APRIL 2009

DELIVERED : 1 APRIL 2009

PUBLISHED : 2 APRIL 2009

FILE NO/S: CIV 1284 of 2009

BETWEEN: BRIDGETTE RAELENE MOURISH
CORAL WILSON
Plaintiffs
AND
BARBARA JEAN WYNNE
Defendant

Catchwords:

Originating summons for orders that plaintiffs have carriage of funeral - Right to arrange funeral - Dispute as to paternity of deceased - Dispute between maternal grandmother and aunt and disputed paternal grandmother - Deceased raised by defendant and lived and died in Albany

Legislation:

Administration Act 1903 (WA)
Supreme Court Ordinance 1861

Result:

Originating summons dismissed

Category: A

Representation:

Counsel:

Plaintiffs: Mr M L Segler
Defendant: Mr A P Skerritt

Solicitors:

Plaintiffs: Martin Lee Segler
Defendant: Great Southern Legal Pty Ltd

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

Burrows v Cramley [2002] WASC 47
Calma v Sesar (1992) 106 FLR 446
Dobson v North Tyneside Health Authority (1997) 1 WLR 596
Hartshorne v Gardner [2008] EWHC B3 (Ch)
Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328
Joseph v Dunn [2007] WASC 238
Leeburn v Derndorfer [2004] VSC 172; (2004) 14 VR 100
Meier v Bell (Unreported, VSC, Library No 4518 of 1997, 3 March 1997, Ashley J)
Re Boothman SM (Unreported, WASC, Library No 990031; 27 January 1999)
Reece v Little [2009] WASC 30
Smith v Tamworth City Council (1997) 41 NSWLR 680
Ugle v Bowra & O'Dea [2007] WASC 82
University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch)

LE MIERE J:

Application

The plaintiffs apply by originating summons for orders:
1.That they have carriage of the funeral of the late Bridgette Raelene Mourish who was born on 10 June 1993 and who died on 1 February 2009 (the deceased).
2.That the deceased be buried in a cemetery in Midland.
3.A permanent injunction restraining the defendant from burying the deceased in Albany.

The hearing

The plaintiffs commenced this matter by originating summons issued on 9 February 2009. The matter came before me on 10 February at which time the plaintiffs sought an ex parte injunction restraining the defendant from burying the body of the deceased. Counsel for the plaintiffs informed me that he had been in contact with a solicitor who in turn had been in contact with the defendant and that that solicitor had suggested that it was appropriate that upon the grant of an interim injunction the application for the continuation of the injunction should be adjourned for 14 days. I granted an interim injunction for the period of 14 days.
The matter was subsequently programmed, at the request of the parties, for the originating summons to be heard on 30 March 2009. The parties were directed to file and serve any affidavits to be relied upon on or before 12 noon on 26 March 2009. That direction was not complied with. The affidavits relied upon by the plaintiff were served on the defendant's solicitors at approximately 5.30 pm on Friday, 27 March 2009 for a hearing which was to commence on Monday, 30 March 2009. The defendant relied upon affidavits served on or about 24 February 2009 and 10 March 2009 and further affidavits served at about 5.30 pm on 27 March 2009. On the second day of the hearing, 31 March 2009, the plaintiffs tendered an affidavit sworn by Dwayne Parfitt. Finally, counsel for the defendant tendered a further affidavit of the defendant on the afternoon of 31 March 2009.
By agreement between counsel there was no cross‑examination of the deponents of any of the affidavits. The affidavits contain evidence that is controversial, in the sense that it is contradicted by other affidavit material or that is not accepted by the opposing party. Counsel for the plaintiffs submitted, at least in respect of some evidence, that where it is uncontradicted by other evidence then it should be accepted. It is not appropriate to do so. Notwithstanding that the plaintiffs commenced these proceedings on 9 February 2009 and that, by agreement between the parties, they were directed to serve any affidavits to be relied upon by 12 noon on 26 March 2009, all of the affidavits relied upon by the plaintiff were served at 5.30 pm on 27 March 2009, or later, and at a time which gave the defendant no practical opportunity to respond to the affidavits. In those circumstances I will make no findings of fact on any matter which is seriously in controversy between the parties because it would be unfair to do so. The alternative is to adjourn the proceedings for the purpose of enabling the other party to prepare and serve affidavits in reply and for cross‑examination of the witnesses to occur. That would further, and substantially, delay the resolution of this matter. The defendant is in Albany. Marilyn Mourish and James Wynne are both in prison. Both parties submit that a further delay should not occur. It is now two months since the deceased passed away and it is not proper that there should be any further delay in resolving these proceedings.

Birth of the deceased

The deceased's birth certificate records that she was born on 10 June 1993, that her mother was Marilyn Maree Mourish (Marilyn) and her father was James Eric Wynne (James). On 26 April 1994 Marilyn, James and the defendant (Barbara) signed an agreement pursuant to s 41 of the Family Court Act 1975 (WA) which recited that James and Marilyn acknowledge that they are the parents of the deceased. Barbara is the mother of James.
In her affidavit sworn 27 March 2009 Marilyn says that James is not the father of the deceased. She says that the natural father is Dwayne Parfitt, who is her second cousin on her mother's side of her extended family. Marilyn says she knows Dwayne Parfitt to be the natural father of her daughter because she had sex with him during the month of September 1992 and she was not having sex with any other boys or men at that time. She says that she was unaware that Dwayne was her second cousin and when she later found out that he was closely related to her she was too embarrassed to tell her family about what had happened. Dwayne was imprisoned within two months of that event in respect of another matter.
Marilyn says that her recollection is that she met James in or about January or February 1993, that at that time she was unaware that she was pregnant with her daughter and that she had sex with James on the first night that she met him. Marilyn says that when she knew that she was pregnant, and that the father was Dwayne, she 'felt ashamed in front of her family and pretended that James was the father'. After giving birth to her daughter Marilyn lived at the home of the second plaintiff, Coral Wilson, with her daughter, James, her mother and Coral Wilson. Marilyn's mother (Bridgette) is the first plaintiff. Coral Wilson (Coral), is the second plaintiff and is Marilyn's aunt.
In his affidavit sworn 27 March 2009, James maintains that he is the father of the deceased. He says that Marilyn always told him that he was the deceased's father. He says that soon after the deceased was born he rang his mother to tell her of the deceased's birth. During the call Marilyn spoke to Barbara and he heard Marilyn tell Barbara that he was the deceased's father.
Barbara has deposed that James and Marilyn telephoned her after the deceased was born to advise her of her birth. Barbara spoke to Marilyn and asked her twice if James was the father. Marilyn responded on both occasions that James was the father.
Counsel for the plaintiffs submits that I should find that Dwayne Parfitt is the biological father of the deceased. Counsel submits that the evidence of Marilyn is plausible and, if accepted, means that James cannot be the father of the deceased because she did not meet him until January or February 1993, which is only four or five months before the deceased was born. Furthermore, counsel submits that the plaintiffs requested that James provide a DNA sample for DNA testing but that James failed to provide a sample and, in effect, it is to be inferred that James did not do so because he knows he is not the biological father of the deceased.
I do not accept those submissions. There was no opportunity for James to respond to the evidence of Marilyn concerning when she first met, and had sex with, James. The way in which the matter proceeded to a hearing prevented the evidence of Marilyn being tested by cross‑examination. She is presently in Bandyup Women's Prison. Counsel for the plaintiffs submitted that cross‑examination of Marilyn could not have affected her evidence. That is speculation. In the affidavit of Bridgette in support of her originating summons she deposed that the deceased was born to Marilyn and Dwayne after he had raped her when she was only 15 years old. That affidavit was not tendered in evidence at the final hearing of the originating summons. However, it is another matter, together with her many statements that James was the father, that could have been put to her in cross‑examination. So far as the DNA evidence is concerned, counsel for the defendant pointed out that it could equally be submitted that Dwayne Parfitt had not submitted a DNA sample for the purpose of establishing that he is the biological father of the deceased.
In the circumstances of this hearing I find that at the birth of the deceased, James was, on the instructions of Marilyn, recorded as the father of the deceased. Marilyn again acknowledged that James was the father on 26 April 1994 when she signed the s 41 agreement. There is now a controversy over who is the biological father of the deceased. That controversy has not, and cannot at present, be resolved.
A short time after the deceased's birth Barbara met Marilyn and James in Katanning. The deceased went with Barbara to live at Barbara's home in Albany. Marilyn and James stayed with Barbara and the deceased for a short time and then went to Mount Barker for a short time until they returned to Perth.
On 26 April 1994 Barbara, James and Marilyn executed an agreement pursuant to s 41 of the Family Court Act 1975 (WA). The agreement was prepared by the Aboriginal Legal Service. The agreement recites that James and Marilyn are the parents of the deceased and that the deceased, who was then aged 10 months, resided with Barbara in Albany. The agreement provides that Barbara will have sole custody of the deceased, that Barbara, James and Marilyn have the joint guardianship of the deceased and that James and Marilyn shall have reasonable access to the deceased. The agreement is of no legal effect because at the time of its execution Marilyn was aged 15 and the agreement was not registered by the Family Court, or at least there is no evidence that it was.

The life of the deceased

Marilyn deposes that she went back to Albany to visit her daughter regularly until the age of 6. Barbara says that after Marilyn returned to Perth she only came to see the deceased in Albany approximately five times until the deceased passed away. Barbara says that Marilyn did return to Albany to give birth to Eric and Heath, children of Marilyn and James, and when Marilyn was in Albany she stayed with Barbara for a short time.
The deceased came to Perth on a number of occasions and there stayed with Coral. The circumstances concerning the deceased travelling to Perth and returning to Albany are a matter of controversy and I make no finding concerning those matters. The last occasion on which the deceased travelled to Perth and stayed with Coral was in January 2009, shortly before her death. Again, the circumstances concerning that visit are a matter of controversy and I make no finding concerning those circumstances.

Death of the deceased

On 1 February 2009 the deceased took her own life. She was then aged 15.
I was informed by counsel for the defendant that the body of the deceased is presently held in the mortuary at the Albany Regional Hospital. The Coroner intended to release the corpse to the defendant on 10 February 2009. The defendant made arrangements for Albany Funeral Directors to collect the body of the deceased from the mortuary and to conduct the funeral. However, before the funeral directors could collect the body I granted the injunction of 10 February 2009 which prevented that being done. Counsel for the plaintiffs accepted that, notwithstanding that those matters were not all the subject of sworn evidence, I should accept them as facts.

Funeral arrangements

The defendant has made arrangements for Albany Funeral Directors to conduct the funeral. The arrangements are at an advanced stage. A plot at Allambie Park Cemetery in Albany has been reserved. The defendant has prepared a slide show of the deceased's life to be played at the church service and prepared the eulogy and made arrangements for it to be printed. She has chosen the flowers and engaged the florist to prepare them. She has chosen the music to be played at the funeral and made a tentative booking for the hall at the Albany Aboriginal Corporation for the wake. The defendant has arranged the catering for the wake and engaged the pastor to conduct the funeral service and tentatively booked the Albany Baptist Church. The defendant has made arrangements to pay for the funeral service. The defendant has contributed $300 towards the cost. The balance is to be paid by the Department of Child Protection. The burial plot has been paid for by the Southern Aboriginal Corporation.
The plaintiffs have not deposed that they have made any funeral arrangements. However, on 31 March 2009 counsel for the plaintiffs tendered an affidavit of Dwayne Parfitt in which he says that the families of Marilyn and himself have arranged for Peaceful Funeral Services to conduct a funeral and a family plot for burial next to the late Lloyd Mourish or the late Evelyn Mourish who are relatives of Marilyn, in the Swanview Cemetery at Midland. Dwayne Parfitt says that the cost of the funeral proposed including the retrieval of the deceased's body from Albany has been estimated by the funeral director at $6,000 and 'our extended families have all agreed to contribute to that cost'. Dwayne says that: 'We have together contributed to the costs of family funerals at Midland on many occasions previously'.

Jurisdiction

In Burrows v Cramley [2002] WASC 47 Pullin J held that this court has jurisdiction to determine who should have the carriage of a funeral and where the deceased should be buried. Jurisdiction is conferred by s 4 of the Administration Act 1903 (WA). Section 6 of the Supreme Court Ordinance 1861 stated that the Supreme Court should be a court of ecclesiastical jurisdiction. That section was repealed by s 2 of the Administration Act 1903 (WA), but s 4 preserved the former jurisdiction. The burial of bodies was a matter for ecclesiastical courts: see Smith v Tamworth City Council (1997) 41 NSWLR 680, 685.

Legal principles

I have been referred to, and had regard to, a number of decisions of single judges of this court: Re Boothman SM (Unreported, WASC, Library No 990031; 27 January 1999); Burrows v Cramley; Ugle v Bowra & O'Dea [2007] WASC 82; Joseph v Dunn [2007] WASC 238; Reece v Little [2009] WASC 30. I have also been referred to, and had regard to, a number of single judge judgments in other jurisdictions: Calma v Sesar (1992) 106 FLR 446; Smith v Tamworth City Council (1997) 41 NSWLR 680; Meier v Bell (Unreported, VSC, Library No 4518 of 1997, 3 March 1997, Ashley J). I have also had regard to the judgment of Byrne J in Leeburn v Derndorfer [2004] VSC 172; (2004) 14 VR 100, the decision of the Full Court of the Supreme Court of South Australia in Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 and a number of English decisions including Dobson v North Tyneside Health Authority (1997) 1 WLR 596; University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch) and Hartshorne v Gardner [2008] EWHC B3 (Ch).
In Smith v Tamworth City Council Young J reviewed a large number of authorities and then stated the propositions that followed from his analysis. The propositions included:
1.If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased's body, the person named as executor has the right to do so.
2.Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.
3.A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
4.Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.
…
6.Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
…
14.The holder of the right of burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.
15.After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the right of burial.
Those principles, or some of them, have been cited with approval in Re Boothman, Burrows v Cramley, Joseph v Dunn and Reece v Little.
In Jones v Dodd the dispute was about the place where the body of a deceased person was to be buried and the contenders were the father of the deceased and the de facto spouse of the deceased. The de facto spouse contended that the question about who should determine where burial occurred should be resolved in accordance with the wishes of the person best placed to obtain an order for administration in intestacy of the estate of the deceased.
Perry J, with whom Millhouse and Nyland JJ agreed, reviewed relevant authorities, including Smith v Tamworth City Council. At [34] Perry J referred to the submission of counsel, relying on the decision of Ashley J in Meier v Bell, that the question should be resolved in accordance with the wishes of the person best placed to obtain an order for administration in intestacy of the estate of the deceased. In rejecting that argument Perry J said:
In my opinion, that argument wrongly elevates the approach found to be convenient in some cases, namely, that burial rights be accorded a person in a position to apply for a grant of letters of administration in intestacy, to a rigid proposition or principle of law [37].
…
In the first place, with great respect to Ashley J, in my view, the authorities do no more than support the view that in some cases such an approach may be appropriate, but that there is no principle of universal application which compels such an approach in all cases. Furthermore, again with great respect, I cannot accept that it is right to reject consideration of emotional, spiritual and cultural factors when they are present, however inconvenient it may be to do so in the short time which is commonly available to decide these cases [40].
Perry J acknowledged that there is other authority in favour of leaving the decision to the administrator or person entitled to apply for administration. His Honour referred to the following statement of Young J in Smith v Tamworth City Council:
It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and 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 such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, [In the estate of Slattery (1909) 9 SR (NSW) 577,] the person with the largest interest will normally be the person who is the one expected to bury the body. (emphasis added by Perry J) [45].
Perry J said:
I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration [46].
In that case there was little or no estate of the deceased and Perry J considered that it was unlikely that there would ever be an application for administration. His Honour said:
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 [50].

Perry J then expressed his opinion as to the correct approach in that case:
In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question [51].
Perry J considered that due weight must be given to the views expressed by the deceased's children but that consideration should also be given to cultural, spiritual and religious factors. It was those factors that were determinative in that case.
In Leeburn v Derndorfer the dispute concerned the disposition of the ashes of the deceased, rather than the right to arrange burial. However, in the course of a careful judgment Byrne J discussed the relevant authorities. Byrne J said:
In general terms, the law's solution for disputes as to the manner and place of disposition of a dead body is to select a person who is to have the right and responsibility for the disposition and then to leave the choice to that person. But even this process of selection reflects an uncharacteristic awkwardness in the law's response. The cases establish the general priority for selection for this office, in which the executor named in the will stands first, followed by those in order of entitlement to a grant of administration. But even this order of entitlement has been varied to suit the exigency of the particular case and to meet the practicalities of the situation. It may happen, too, that a person's right to administration is itself a matter of some difficulty [11].
The authorities were reviewed, and the principles underlying them considered, by Rosalind Atherton 'Who Owns Your Body?' (2003) 77 ALJ 178. Ms Atherton wrote:
The cases sit broadly within the framework or hierarchy set out in Smith, although some of the cases like Jones at least acknowledge that cultural issues may have a place. What is challenging, however, is to consider the 'why' behind these rules ‑ what is the logic in the summary of results in cases to date, if there is one, apart from the mantra‑like reaffirmation of the 'no property in a body' principle? Looking at the rules in other ways reveals an underlying logic and ethical rationale that can be used as a guide in assessing new problems and weighing up the relevance of a range of intruding factors. Why, for example, give precedence to the executor? All the cases recite that this is the rule, but why? The logic for this rule is that it reflects, though sotto voce and not expressly, an element of extended, or surrogate, autonomy. The deceased's autonomy is limited to choosing an executor, trusting to the chosen person to carry out the deceased's inter vivos wishes with respect to burial or other disposal, usually expressed in the will itself. The executor, in this trusted capacity, is the repository for the deceased's wishes with respect to his or her body. But when the deceased has made no choice, or the chosen person cannot execute the responsibility, then the decision is left to another in a further surrogate sense ‑ a second layer or second generation effect by seeing the deceased as part of a kin network.
The deceased's personhood finds expression as kin of others; and the kin may choose what is to happen with the body. And it is here that cultural or religious views may be particularly significant and relevant ‑ as the expression of the wishes of the kin. But there have been times where the court has been required to act as umpire, in cases where there are kin of equal standing. Even in such cases, however, it can be argued that the broad ethical position remains clear: namely, that at this point, with respect to the particular issue in question, the deceased is treated as person with an ability to control (or request) what is to happen to his or her body either through the choice of a surrogate (the executor) or by being kin of others who act as surrogate decision makers. The body in these contexts continues not to be 'owned', but custody (called 'possession') is awarded through a process of umpiring family claims that respect and reflect the body as person, rather than as thing. The claim in the second generation surrogate sense is far less compelling than that of the executor, chosen by the deceased personally, and so at this point greater weight can be, and has been, given to the practical. At this point utility can limit or provide the means for arbitrating the claims of kin (188).
In most cases the person entitled to a grant of letters of administration will be the next of kin, who in turn will most often be the person with the closest connections to the deceased. In this context connections include familial relationship, cultural or religious values, bonds of affection, friends and acquaintances and attachment to places. In the particular circumstances of a case those factors may assume more or less importance than the entitlement of a person to obtain letters of administration. The deceased in this context is seen as a family member and it is the family which expressed the extended autonomy of the deceased with respect to his or her body. In most cases the person entitled to a grant of letters of administration will be the person with the closest connections to the deceased in a relevant sense and saying that that person has the right to determine the funeral is unobjectionable. But when you move away from that sort of connection the basis of making the decision as to who will decide needs to be considered and understood ‑ and this may lead to a decision, using the analysis suggested by Ms Atherton, of giving custody of the body for funeral arrangements to a person with close connections to the deceased and not to the person with the highest ranking entitlement to a grant of letters of administration.

Who should have charge of the funeral?

The plaintiffs advance four factors in favour of the plaintiffs. First, they submit that the natural father of the deceased, Dwayne Parfitt, is the only person who is a potential administrator.
Section 25(1) of the Administration Act 1903 (WA) provides that the court may grant administration of the estate of a person dying intestate to one or more of the persons entitled in distribution to the estate of the intestate or any other person, if there be no such person entitled in distribution to the estate of the intestate resident within the jurisdiction and fit to be entrusted or if the person so entitled fails, when duly cited, to appear and apply for administration. The persons entitled in distribution to the estate are set out in a table in s 14(1) of the Act. The persons so specified include a parent of the deceased. A grandparent is only entitled if the intestate dies leaving, amongst others, no parent.
In his affidavit sworn and tendered on 31 March 2009 Dwayne Parfitt says that he will seek the rights to manage the deceased's estate, which he understands from the first plaintiff's lawyer, to be known as letters of administration. Counsel for the plaintiffs agreed that I should infer from that evidence and its timing that Mr Parfitt has formed that intention solely for the purpose of strengthening his support for the plaintiffs' case. I do draw that inference. The deceased has left no estate and there is no purpose in obtaining letters of administration other than for the purpose of furthering a claim to have charge of the funeral arrangements. The question of who will arrange the funeral will be decided before any letters of administration are made and it is unlikely that Mr Parfitt will proceed with an application.
For the purposes of these proceedings I find that Dwayne Parfitt's claim to be the biological father of the deceased is not established. Mr Parfitt was informed of the deceased's death on the day following her death but took no steps in relation to these proceedings until he walked into the offices of the plaintiffs' solicitors on 30 March 2009. Mr Parfitt is not a party to these proceedings. Neither he nor the plaintiffs seek an order that he be given responsibility for making the funeral arrangements.
Marilyn is a person entitled in distribution to the estate of the intestate. However, she is not fit to be entrusted with the administration of the estate because she is in Bandyup Women's Prison. Marilyn has not applied for an order entitling her to make the funeral arrangements. Her involvement in these proceedings is limited to swearing an affidavit at the request of the solicitor for the plaintiffs.
Neither the plaintiffs nor the defendant are persons entitled in distribution to the estate of the intestate. In the circumstances of this case I do not find that the common or usual approach to accord burial rights to the person in a position to apply for a grant of letters of administration in intestacy is a factor that assists in determining the proceedings.
The second matter advanced by the plaintiffs is that cultural values are all important or highly important particularly where the parties have all testified to the link of the Noongar people to the land where their forebears have been buried. The plaintiffs, the defendant, Marilyn, James, Dwayne Parfitt and the deceased all are, or were, Noongar people.
There is a conflict of evidence concerning the cultural values or beliefs of Noongars. Bridgette says that for generations, members of 'our family' have been buried in Midland and 'our family' has always related to the Midland area and 'we' regard it as our traditional home. Bridgette says that the 'Noongar people have a link to the land area in which they were born and believe that it is extremely important that when they die they are buried where at least the last generation of their forebears have been buried or their spirit will be lost, it will wander and not settle'.
On the other hand, Phoebe Margaret Wynne deposes that she is an elder of the Noongar community in Albany and the Great Southern. She says that she was born in Gnowangerup and has lived in Albany for approximately 50 years. Ms Wynne says that it is the Noongar way for a person to be buried where they lived and where they were raised. Ms Wynne says that even though she was born in Gnowangerup she has lived in Albany for a very long period of time and it is her desire that when she passes away that she be buried in Albany as that is her home and where her family and loved ones are. Ms Wynne says that she believes the deceased should be buried in Albany as that is where she was raised and that was her home.
In light of that conflicting evidence, I find that cultural values and beliefs are a neutral factor in determining this matter.
The plaintiffs submit that there is evidence that named forebears of the deceased are buried in Midland and there is no evidence naming forebears of the deceased buried in Albany. Those matters are further aspects of the cultural values and beliefs issue that I have already discussed.
The defendant submitted that the question should turn largely on matters of practicalities, paying due regard to the need to have the body disposed of without unreasonable delay but with all proper respect and decency.
The body lies in a mortuary in Albany. The funeral arrangements made by the defendant were underway when stopped by the injunction granted on 10 February 2009. It is true that the plaintiffs' extended family have made some tentative funeral arrangements. Those arrangements appear to be not as well advanced as those of the defendant. For example, the money to pay for the funeral has not yet been collected or arranged, although, there is evidence giving rise to reason to believe that the money can be raised. Overall, the practicalities favour the defendant. The deceased died in Albany, that is where the body lays and arrangements for a funeral service in Albany are well advanced.
The matter which weighs most heavily in my decision is that during her lifetime the deceased had a greater association and connection with Barbara and Albany than with the plaintiffs and Midland. Barbara raised the deceased. The deceased had much less, and only intermittent, contact with the plaintiffs. The deceased lived most of her life in Albany. That is where her school and other friends reside.
The plaintiffs are supported by Marilyn and Dwayne Parfitt. Marilyn is the mother of the deceased but she had little to do with the deceased during her lifetime. Marilyn is in no position to make, or assist in the making of, funeral arrangements. Marilyn has lived in different places during her life and most of her contact with the deceased, at least since she ceased being a baby, was in Albany. Dwayne Parfitt may or may not be the biological father of the deceased. He had no relationship with the deceased. She believed her father to be James. It was James who carried out the role of father to the deceased. In those circumstances the wishes of Dwayne Parfitt carry little weight in my decision.
I understand and respect the wishes and beliefs of the plaintiffs and of the defendant. There is no solution or compromise available to me that will satisfy all interested parties. I can only make a decision mindful that it will cause pain to the unsuccessful party or parties. In this case I consider that the defendant's claim should prevail. As I have said, the practicalities favour the funeral arrangements of the defendant for a burial in Albany. Furthermore, although it is not the full picture, the deceased was raised by the defendant and lived most of her life in Albany.
The defendant should recognise the beliefs and interests of the plaintiffs and other extended family members. She should inform them of the funeral arrangements that she makes and she should permit them to attend the funeral if they wish to do so.

Orders

The plaintiffs have sought orders that they have carriage of the funeral of the deceased. The defendant has not formally sought any orders. I will order that the plaintiffs' claims be dismissed. I have determined that the defendant should have carriage of the funeral but I will not make any order to that effect. However, lest any difficulties should arise, I will grant liberty to apply in relation to the funeral of the deceased.