Phillips v The State Coroner - [2024] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PHILLIPS v THE STATE CORONER & ANOR
[2024] SASC 134
Judgment of the Honourable Associate Justice Dart
SUCCESSION - PERSONAL REPRESENTATIVES - RIGHTS, POWERS AND DUTIES - DISPOSAL OF BODY
HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES
HEALTH LAW - BURIAL AND CREMATION - POWERS OF AUTHORITIES
The applicant is the mother of the late Scot Adam Phillips - the body of the deceased is held by the Coroner - the second respondent is the twin sister of the deceased - this dispute relates to the question of who should have the conduct of the funeral arrangements for the deceased - it also relates to whether there should be a burial or a cremation - the resolution of the dispute requires a consideration of the operation of the Burial and Cremation Act 2013 (SA) - it also requires a consideration of the inherent jurisdiction of the Court and the interaction of that jurisdiction with the Act.
Held:
1. The second respondent is to have conduct of the funeral of the deceased.
2. The second respondent is to arrange for the applicant to have a private viewing of the body of the deceased before the funeral.
3. There is to be a cremation of the body of the deceased.
4. The ashes of the deceased are to be shared equally between the applicant and the second respondent.
Burial and Cremation Act 2013 (SA) ss 5, 9, 10 and 11, referred to.
Smith v Tamworth City Council (1997) 41 NSWLR 680; Jones v Dodd (1999) 73 SASR 328; Marschall v Elson [2023] SASCA 1; State of South Australia v Smith & Anor [2014] SASC 64; Marschall v Elson (No 2) [2023] SASCA 3; Maros & Anor v Luca & Ors [2024] SASC 98; Dodd v Jones [1999] SASC 458, considered.

PHILLIPS v THE STATE CORONER & ANOR
[2024] SASC 134

This is a sad and distressing matter. Two family members are in dispute about who should have the conduct of the funeral arrangements for a recently deceased family member. Unfortunately, the parties have not been able to reach a consensus on the best way to proceed. It falls to the Court to make a determination. As of necessity a quick judgment is required.
Background
Scot Adam Phillips died on 10 September 2024 aged 19 years. A person has been charged with his murder. The body of the deceased is presently held by the Coroner. He has given an undertaking not to release the body until these proceedings have resolved.
The applicant is the mother of the deceased. The contest is between her and the second respondent who is a daughter of the applicant and the twin sister of the deceased. Each wants possession of the body to conduct a funeral. The other area of dispute is whether the funeral should take the form of a burial or a cremation.
The family history is very sad. The…

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 Phillips v The State Coroner

Details

AGLC: Phillips v The State Coroner [2024] SASC 134
Case: [2024] SASC 134
Decision Date: 26 November 2024

CaseChat Overview and Summary

The case of Phillips v The State Coroner involves a dispute between a mother and her daughter regarding the funeral arrangements for the deceased, Scot Adam Phillips, who passed away on 10 September 2024. The body is currently held by the Coroner, who has pledged not to release it until the matter is resolved. The applicant, the deceased's mother, and the second respondent, his twin sister, are both seeking possession of the body to conduct the funeral. The central issue is whether the funeral should involve a burial or a cremation. The family history is complex, with the deceased and his sister having been removed from the applicant's care and placed in foster care at a young age. Although there was some contact between the applicant and the deceased in the years leading up to his death, the relationship between them was strained. The second respondent had a closer relationship with the deceased and prefers a cremation, while the applicant wishes for a burial. The case requires the court to determine which party should have the final say on the funeral arrangements.

The primary legal issue in this case revolves around the rights and duties of personal representatives in relation to the disposal of a deceased person's body. The court must consider whether the applicant, as the deceased's mother, has a stronger claim to the body and the right to decide on the funeral arrangements compared to the second respondent. This issue is compounded by the lack of a will or executor, leaving the court to decide on the appropriate course of action. The court must also consider the statutory framework governing burial and cremation, as well as the powers of relevant authorities. The court's decision will ultimately depend on a careful consideration of the evidence and the principles of justice and fairness.

The court, after considering the evidence and the applicable legal principles, determined that a cremation is the most appropriate outcome in this case. The judge acknowledged the difficult and complex relationship between the applicant and the deceased, but ultimately found that the applicant's status as the deceased's mother should be respected and given proper weight. The judge considered the preferences of both parties and the reasons behind them, ultimately deciding that a cremation was the most suitable option. The court emphasised the inherent difficulty in resolving such disputes, acknowledging that the decision would cause pain to the unsuccessful party. The court ordered that the deceased's body be released to the second respondent for cremation, with the understanding that the ashes would be shared with the applicant. This decision reflects a careful balancing of the competing interests and a recognition of the importance of respecting the deceased's family members in making such decisions.

The final orders of the court are as follows: the body of Scot Adam Phillips is to be released to the second respondent for cremation, with the understanding that the ashes will be shared with the applicant. The cremation is to take place in accordance with the relevant statutory provisions, and the Registrar is to issue a permit to facilitate the cremation. The court's decision recognises the difficult nature of the dispute and aims to provide a resolution that is fair and just to all parties involved.

Orders

Orders of the court

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Background

Background to the litigation

This is a sad and distressing matter. Two family members are in dispute about who should have the conduct of the funeral arrangements for a recently deceased family member. Unfortunately, the parties have not been able to reach a consensus on the best way to proceed. It falls to the Court to make a determination. As of necessity a quick judgment is required.Background Scot Adam Phillips died on 10 September 2024 aged 19 years. A person has been charged with his murder. The body of the deceased is presently held by the Coroner. He has given an undertaking not to release the body until these proceedings have resolved. The applicant is the mother of the deceased. The contest is between her and the second respondent who is a daughter of the applicant and the twin sister of the deceased. Each wants possession of the body to conduct a funeral. The other area of dispute is whether the funeral should take the form of a burial or a cremation. The family history is very sad. The deceased and the second respondent were taken from the applicant at a few months old and placed into foster care. The applicant had visitation rights and it seems that those rights were utilised until the children were about nine years old. There was then a period until the children were about 14 during which there was little or no contact. There was a resumption of some contact at about the age of 14 with the deceased. The extent is not clear but there was some text message contact. The deceased got into difficulties with the law. For a period when he was 17 and 18 he was incarcerated. The last period of incarceration was at Yatala Labour Prison. He was released from prison about nine months before he died. During that period the applicant was in contact with the deceased, predominantly by way of text messages. Some evidence of Facebook contact was tendered at the hearing. During that period the applicant also visited the deceased at his home on at least one occasion. She said that she had other text message contact with the deceased in that period. The evidence suggests that the relationship between the applicant and the deceased was not straightforward. It is not clear to what extent the deceased wished to resume a relationship with his mother. There is some evidence from the second respondent that he regarded the applicant as someone who could be used for the purpose of obtaining money. A fair summary of the position would seem to be that the applicant wished to resume a relationship with the deceased. That position may not have been fully reciprocated. There is no dispute that the second respondent had a much closer relationship with her brother than did the applicant. The legal issues There is a considerable amount of law that is relevant to resolving this dispute. The common law position is that an executor named in a will is entitled to take possession of the body of the deceased and is responsible for organising the funeral of the deceased. The common law position was discussed by Young J in Smith v Tamworth City Council.[1] His Honour said:[2]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; 26 WN (NSW) 116, the person with the largest interest will normally be the person who is the one expected to bury the body. [1] (1997) 41 NSWLR 680.[2] (1997) 41 NSWLR 680 at 691.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issue of the Court’s inherent jurisdiction and its interaction with the Act needs to be considered more fully in an appropriate case. If the Court has the power to order a cremation, notwithstanding the provisions of the Act, it should make a supplementary order permitting the Registrar to issue a permit so that the cremation takes place in conformity with the Act.Consideration of the issues Before I move on to a consideration of the issues that will determine the outcome of this dispute, I wish to adopt the sentiment expressed by Doyle CJ in Dodd v Jones:[11]Sadly, the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weigh the competing claims and arrive at what one would truly call a legal judgment. I understand and respect the wishes and beliefs of the plaintiff and of the defendant. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party. [11] [1999] SASC 458 at [36]. The situation is the same in this matter. All the Court can do is make a decision. Someone will be hurt by the outcome. At the commencement of the hearing the Court was advised of two open offers. The offer put by the applicant was that the second respondent could have conduct of the funeral arrangements but that those arrangements would involve a burial of the deceased. The competing offer from the second respondent was that she would have the conduct of the funeral arrangements, there would be a cremation but she would share the ashes with the applicant. She was also prepared to allow the applicant to have a private viewing of the body of the deceased. In the circumstances then, the difference between the parties really came down to whether there should be a burial or cremation. Unsurprisingly, there is no serious evidence about the deceased’s wishes in regard to whether he should be buried or cremated. He was a young man entering adulthood and such matters would not have been on his mind. It is the second respondent who wishes a cremation. Her evidence was to the effect that in her extended foster family cremation was the normal approach. She gave evidence that she was concerned about possible vandalism of any grave of the deceased if he was buried. She also wished to keep the ashes of the deceased with her. The applicant indicated she would prefer a burial. She wanted a gravesite to be able to visit so that she could remember her son. I accept that the applicant was attempting to establish a relationship with the deceased during the period before he died. Since the hearing, I must admit that I have changed my mind several times as to the appropriate outcome. The applicant is the mother of the deceased and even though her relationship with her son had been difficult and fractured, the fact that she was the mother of the deceased should be respected and given proper weight. I have given serious consideration to whether a burial was the most appropriate outcome, but ultimately I have decided a cremation is required.