Nayacakalou v Vincent - [2020] NSWSC 24

Supreme Court

New South Wales

Medium Neutral Citation: Noa Nayacakalou v Raeleen Vincent [2020] NSWSC 24
Hearing dates: 29 January 2020
Date of orders: 30 January 2020
Decision date: 30 January 2020
Jurisdiction: Equity
Before: Henry J
Decision:
See [52].

Catchwords: SUCCESSION – burial rights – where mother and father have equal ranking at common law – whether mother or father 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 – mother granted relief sought.
Legislation Cited: None.
Cases Cited: Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684
Carly White v Candice Williams [2019] NSWSC 437
Darcy v Duckett [2016] NSWSC 1756
Jones v Dodd [1999] SASC 125
Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701
Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197
State of South Australia v Smith (2014) 119 SASR 247
Texts Cited: None
Category: Principal judgment
Parties: Noa Nayacakalou (Plaintiff/Cross-defendant)
Raeleen Vincent (Defendant/Cross-claimant)
His Honour Magistrate Dick (Second Cross-defendant; submitting appearance)
Representation:
Counsel:
L Goodchild (Plaintiff/Cross-defendant)
P Muscat (Defendant/Cross-claimant)
Solicitors:
Walker and White (Plaintiff/Cross-defendant)
Cater & Blumer (Defendant/Cross-claimant)
Crown Solicitor for NSW (Second Cross-defendant)

File Number(s): 2019/153609
Publication restriction: Nil

Judgment

Before me is an urgent application to determine, as between one or other of the parents of a deceased, who should have the carriage of the funeral and full authority in respect of the disposal of the deceased's remains. As requested by the mother, for cultural reasons I will not repeat the name of the deceased in these reasons.
The deceased died between 28 and 29 December 2019 by his own hand. He was 19 years old. There is no dispute that the deceased identified as an Aboriginal man.
On 17 January 2020, the deceased’s father, a Fijian man, filed a summons in which he seeks a special grant of administration limited to custody of the deceased's body and authorisation to arrange the burial of the deceased.
The deceased's mother, an Aboriginal woman, has filed a cross-claim seeking carriage of the funeral of the deceased and full authority in respect of the disposal of the deceased's remains. The mother wishes to cremate the deceased’s body.
There was originally a difference between the parties as to the location of a funeral and where the deceased's remains should be placed following burial or cremation. The father initially contended that the funeral should take place and his body buried in Griffith. His mother contended that the deceased’s ashes should be scattered on country, in Euabalong, New South Wales.
At the hearing, the father undertook, if he is granted relief, to bury the deceased at a cemetery in Euabalong, New South Wales, in recognition that Euabalong is the deceased's traditional country and the place where some of his relatives are buried. The mother indicated that, if she is granted relief, she would bury the deceased's ashes (if the body is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nayacakalou v Vincent

Details

AGLC: Noa Nayacakalou v Raeleen Vincent [2020] NSWSC 24
Case: [2020] NSWSC 24
Decision Date: 30 January 2020

CaseChat Overview and Summary

In the case of Nayacakalou v Vincent, the High Court of Australia considered a dispute over burial rights involving the remains of an Aboriginal man who identified as a member of the Wiradjuri culture. The deceased's mother, Nayacakalou, sought to assert her rights over the funeral arrangements and custody of the deceased's body, including the decision between burial and cremation, against the wishes of the deceased's father, Vincent. The legal issues before the court revolved around the interpretation of common law principles concerning the equal ranking of mothers and fathers and how these principles should be applied in the context of Aboriginal burial customs.

The court was required to determine whether the deceased's identification as a member of the Wiradjuri culture influenced the application of common law principles regarding burial rights and funeral arrangements. Specifically, the court had to assess whether the mother, as the person seeking to assert her rights, could be granted relief in light of the father's objections. The court also needed to consider whether the mother's cultural identification with the Wiradjuri community was a relevant factor in determining the appropriate burial customs and the handling of the deceased's remains.

In reaching its decision, the court acknowledged the equal standing of both parents at common law, yet recognised the cultural context of the deceased's identification as an Aboriginal man from the Wiradjuri community. The court held that the mother's cultural connection to the Wiradjuri community and her role in the deceased's life provided a compelling basis for granting her the relief sought, which included the right to arrange the funeral and decide on the method of disposition of the deceased's body. Consequently, the court ruled in favour of the mother, Nayacakalou, allowing her to proceed with the funeral arrangements in accordance with her wishes and cultural practices.

Orders