Pryor v Huata - [2024] WASC 13

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PRYOR -v- HUATA [2024] WASC 13
CORAM:   HILL J
HEARD:   16 JANUARY 2024
DELIVERED          :   16 JANUARY 2024
PUBLISHED           :   19 JANUARY 2024
FILE NO/S:   CIV 1007 of 2024
BETWEEN:   DANIEL PHILLIP PRYOR
Applicant
AND
ALEXIA JANET HUATA
First Respondent
THE STATE CORONER OF WA
Second Respondent

Catchwords:

Burial rights - Person dying intestate - Where dispute arose between the deceased's father and mother as to appropriate burial and funeral arrangements - Where dispute involves competing cultural claims - Whether court should order repatriation to New Zealand - Dispute to be resolved in a practical way - Unreasonable delay to be avoided - Where funeral and burial should occur - Which parent should have carriage of funeral

Legislation:

Administration Act 1903 (WA) s 4, s 14, s 25

Result:

Plaintiff's application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	C Bahemia
First Respondent	:	S Boni
Second Respondent	:	R M Hartley

Solicitors:

Applicant	:	The National Justice Project
First Respondent	:	Western Legal
Second Respondent	:	State Solicitor's Office

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

AB v CD [2007] NSWSC 1474
Attwood v Office of the State Coroner [2020] WASC 198
Britt v Office of the State Coroner [2022] WASCA 75
Burrows v Cramley [2002] WASC 47
Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446
Dann v Office of the State Coroner [2020] WASC 486
Doodeward v Spence (1908) 6 CLR 406
Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328
Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94
Mourish v Wynne [2009] WASC 85
Reece v Little [2009] WASC 30
Smith v Tamworth City Council (1997) 41 NSWLR 680
The State of South Australia v Smith (2014) SASR 247
Williams v Williams (1882) 20 Ch D 659

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

The plaintiff commenced these proceedings by originating summons on 4 January 2024 and requested that the application be dealt with urgently.
At the hearing before me today, the plaintiff and the first defendant agreed that their son be referred to as Boy. I have adopted that terminology in the reasons that I now give for my decision.
Boy died on 23 December 2023. He was 19 years old at the time of his death. There is no evidence before the court that Boy left a will.
The plaintiff, who is the father of Boy, is a Noongar man, and the first defendant, who is his mother, a Māori woman. Both consider that Boy should be buried in accordance with their customs, which include burial on their ancestral land. As a result, they have been unable to agree on the funeral arrangements for their son. Both applied to the coroner for the release of Boy's body to them, but prior to the coroner making any decision in respect of the matter, the plaintiff commenced these proceedings.
By the amended originating summons, the plaintiff applies for an order appointing him as administrator of Boy's estate, as well as for orders for him to have the carriage or control of the funeral and burial of Boy and that he be entitled to arrange his funeral. The plaintiff also seeks an order requiring the coroner to release Boy's body to him.
The originating summons was initially listed for directions on 9 January 2024. At that hearing, orders were made for the filing and service of additional affidavits on behalf of the plaintiff, and orders were made for the first defendant to file and serve any affidavits in response, as well as for the filing of submissions by all parties.
These orders having been complied with the originating summons came on for hearing before me today on an urgent basis.

Legal principles

The legal principles that govern this application are not in dispute. They can be summarised as follows.
This court has jurisdiction pursuant to s 4 of the Administration Act 1903 (WA) (Act), as well as in its inherent jurisdiction, to determine who should have carriage of a funeral, and where and how a body should be disposed of.[1]
[1] Burrows v Cramley [2002] WASC 47 [3] (Pullin J); Mourish v Wynne [2009] WASC 85 [21] (Le Miere J).
It is an established principle at common law that there is no property in the body of a deceased person, but that executors are entitled to custody and possession of the body for the purpose of determining funeral arrangements.[2]
[2] Williams v Williams (1882) 20 Ch D 659; Doodeward v Spence (1908) 6 CLR 406; Burrows v Cramley [15] - [16] (Pullin J).
The legal principles that apply in this State as to how the court is to determine who should have possession and control of a body are also not in dispute. Whilst these matters have been the subject of several single judge decisions of this court, they were most recently considered by the Court of Appeal in the decision of Britt v The Office of State Coroner.[3] Mitchell JA, with whom Murphy and Beech JJA agreed, reviewed these prior single judge decisions and definitively set out the principles that guide the scope of the court's discretion to make orders as to who should have carriage of a funeral, both in circumstances where there is a will, and where there is no will.
[3] Britt v Office of the State Coroner [2022] WASCA 75 [52] ‑ [66].
These principles can be summarised as follows:
(a)where there is a will, the court will ordinarily order that the body be released to the executor;[4]
[4] Britt v Office of the State Coroner [54], [59]; Smith v Tamworth City Council (1997) 41 NSWLR 680, 691; Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [45] ‑ [46].
(b)if there is no will, the court will ordinarily order that the body be released to the person who appears, on the state of the evidence before the court, to be the person who is most likely to receive a grant of administration of the intestate estate. This will ordinarily be the person with the greatest interest in the estate;[5]
(c)these are the common or usual approaches that apply but are not approaches that must be rigidly applied by the court.[6] The approach to be taken and the weight to be given to the various considerations depends on the particular circumstances of each case;[7]
(d)other factors, to the extent they are known to the court, and which may be relevant to the determination, include:[8]
(i)cultural considerations;[9]
(ii)the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased,[10] including, where relevant, children;[11] and
(iii)the need for the funeral and burial to be held in a timely way and the costs and logistical difficulties with the competing proposals.[12]
(e)in determining the person to whom a deceased's body should be released, the court is not required to make any final determination of who is entitled to the intestate estate or administration of the estate. In many cases, the court will not be positioned to fairly and properly make such a final determination. Disputes about the release of a deceased's body should be resolved as soon as possible after the death, as it would be an affront to the dignity of the deceased and the emotional wellbeing of those close to the deceased, for the funeral to be delayed for many months after death to allow questions of interest and entitlement to be fairly and properly resolved;[13] and
(f)in proceeding in an expedited way, the court will not usually need to resolve every factual dispute that may be relevant to the grant of administration or to allow or undertake any extensive cross-examination of witnesses.[14]
[5] Britt v Office of the State Coroner [54], [59], [65]; Smith v Tamworth City Council 691; Jones v Dodd [45] ‑ [46].
[6] Britt v Office of the State Coroner [55], citing Jones v Dodd [46].
[7] Britt v Office of the State Coroner [18] (Murphy & Beech JJA), [59] (Mitchell JA).
[8] Including in cases where there is estate and where there is no likelihood of any application for a grant of administration ever being made, or there are claims by persons with equally-ranking rights to apply for administration: Britt v Office of the State Coroner [56] ‑ [57].
[9] Britt v Office of the State Coroner [58]; Dann v Office of the State Coroner [2020] WASC 486 [53].
[10] Britt v Office of the State Coroner [58]; Dann v Office of the State Coroner [2020] WASC 486 [48].
[11] Dann v Office of the State Coroner [62]; Reece v Little [2009] WASC 30.
[12] Britt v Office of the State Coroner [58].
[13] Britt v Office of the State Coroner [16] (Murphy & Beech JJA) [60] ‑ [61], [64] (Mitchell JA).
[14] Britt v Office of the State Coroner [65]; The State of South Australia v Smith (2014) SASR 247 [40].
Where those seeking to claim the privilege of the burial of a deceased have equal ranking rights of administration, the question turns largely to matters of practicality, paying due regard to the need to have the burial without unreasonable delay but with all proper respect and decency.[15]
[15] Attwood v Office of the State Coroner [2020] WASC 198 [12].
The question as to who is most likely to be granted letters of administration is governed by the Act. Under s 25(1) of the Act, the court can grant administration of the estate of a person dying intestate to any adult who is entitled to distribution of the estate. The normal approach to the exercise of this power is to grant letters of administration to the person who has the greatest interest as a beneficiary in the intestate estate.
This, in turn, is determined by reference to the table in s 14 of the Act, which sets out who is entitled to a distribution from an intestate estate. Relevantly in this case, the table does not distinguish between the priorities of parents. That is, the mother and father of a deceased person are not given different ranks, even if the deceased resided with only one parent, or if only one parent was the primary carer.
In a case of equal priority, as EM Heenan J stated in Joseph v Dunn:[16]
… the question turns largely to 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.
[16] Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94 [21].
His Honour further noted that:[17]
This was a test adopted by Martin J in the case of Calma v Sesar (1992) 106 FLR 446.
[17] Joseph v Dunn [21].
In Calma v Sesar,[18] Martin J considered which parent the body of a deceased adult son should be released to, and whether the burial should take place in Darwin, where the deceased had been living for a short term, or Port Hedland, where the father wished the deceased to be buried. After noting that questions were raised as to cultural values and customs, his Honour noted that:[19]
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.
[18] Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446.
[19] Calma v Sesar 452.
In that case, his Honour ultimately concluded that:[20]
The body of the deceased was in Darwin and proper arrangements had been made for burial here. There was no good reason in law why that should not be done and no good reason in law why the removal of the body from the Territory and burial in Western Australia was to be preferred.
[20] Calma v Sesar 452.
The only other case that I have been able to find which considered competing applications by parents of a deceased is the decision of AB v CD.[21] In that case, Harrison J gave significant weight to the fact that the mother in that case had the primary care and responsibility for her son since birth. In his Honour's view, this factor 'appear[ed] to dominate all others'.[22] It is important to note, however, that in that case, the deceased was only 14 months old.
[21] AB v CD [2007] NSWSC 1474.
[22] AB v CD [63].

The evidence

In this case, all parties have filed evidence in relation to the application.
The plaintiff filed four affidavits in support of his application, being:
(a)two affidavits of the plaintiff filed 5 and 16 January 2024; and
(b)two affidavits of Maureen Michelle Kelly, the plaintiff's mother and grandmother of Boy, filed 10 and 16 January 2024. The first affidavit of Ms Kelly annexes a letter from Ms Winmar, a Noongar female elder, who gave evidence of traditional Noongar lore and custom in respect of the burial of deceased persons.
The first defendant filed five affidavits, all on 15 January 2024, opposing the plaintiff's claim and setting out the basis for her claim for orders for the release of Boy's body to her. These affidavits were:
(a)an affidavit of the first defendant;
(b)an affidavit of Karen De-Anne Rarere, the first defendant's mother and maternal grandmother of Boy;
(c)an affidavit of Hemi Ngari Anthony Huata, the first defendant's father and maternal grandfather of Boy;
(d)an affidavit of Chena'e McConnell, a friend of the first defendant who has known the first defendant since January 2018; and
(e)an affidavit of Ngaire Culshaw, the great aunt of Boy, whose elder brother Wi Derek Huata/King is a senior law elder of the family's tribe in Raupunga, Hawkes Bay in New Zealand.
The second defendant filed one affidavit on 8 January 2024, being an affidavit of Kelly Marie Niclair, the Principal Registrar of the Coroner's Court. This affidavit gave evidence of the process that had been followed by the coroner and annexed various documents that had been obtained from the coroner's file.
I have also had the significant benefit of written submissions that were filed on behalf of each of the parties, and I acknowledge the assistance that I have gained from the appropriate and thoughtful submissions filed.
As I am required to reach a decision quickly, I am regrettably unable to refer in detail with respect to all evidence that has been filed. I have carefully read and considered all filed material, and accept that the plaintiff and first defendant both, as well as their immediate and extended families, have suffered a significant loss.
In making my decision, I am conscious that the plaintiff and first defendant are concerned to ensure the proper burial of their loved one. It is important that Boy be buried without unreasonable delay and with the respect and decency that he deserves.
I also accept that my decision will inevitably cause distress to the plaintiff or first defendant. Regrettably, it is necessary that this court decide who should have the right to arrange Boy's funeral and where he should be buried. In doing so, I must apply the established principles of law which I have summarised above.

The issues

There are two issues of contention between the plaintiff and first defendant: first, which of Boy's parents should have the right to arrange his funeral; and second, where he should be buried.
Having heard submissions from the parties, it appears to me that the primary disagreement concerns where Boy should be buried. The plaintiff wishes Boy to be buried in Midland, Western Australia in Australia, whereas the first defendant wishes Boy to be buried in Raupunga, Hawkes Bay in New Zealand.
As a result, during the hearing, I asked counsel for the plaintiff and first defendant as to whether, in their submission, these issues were inextricably linked or whether, if the court did not accept that Boy should be buried in New Zealand, the court should consider granting the carriage of the funeral to the first defendant.
In the plaintiff's submission, these issues are inextricably linked.[23]
[23] ts 38.
In contrast, the first defendant, while maintaining her position that she be appointed administrator and entitled to decide where Boy should be buried, sought in the alternative an order that even if the court considered that Boy should be buried in Midland, Western Australia, that she be granted carriage of his funeral arrangements.[24]
[24] ts 36 - 37.

Funeral arrangements proposed by the parties

Alternative funeral arrangements have been proposed by the plaintiff and first defendant. If the plaintiff's application is granted, the plaintiff proposes that Boy be buried in Midland on Noongar land, at a cemetery where his paternal grandfather and other paternal family members are buried.[25] The evidence on behalf of the plaintiff is that his family has sufficient funds to pay for any funeral and does not require any contribution from the first defendant or her family.[26]
[25] Plaintiff's submissions filed 8 January 2024 [3].
[26] Affidavit of Maureen Michelle Kelly filed 16 January 2024 [7].
In contrast, the first defendant proposes that Boy be buried in Raupunga, Hawkes Bay in New Zealand, at what she describes is a family cemetery. A funeral director has been instructed by the first defendant to attend to the repatriation of Boy to New Zealand, which on her evidence can occur within 5-7 business days.[27] This is subject to the provision of a number of documents, and there is no evidence before the court as to how long it will take to obtain these documents.[28]
[27] First defendant's submissions filed 15 January 2024 [44], [61] - [62].
[28] Affidavit of Alexia Janet Huata filed 15 January 2024 'AH04', p 23.
The first defendant is not seeking any contribution to the costs of the repatriation of Boy or for his funeral. Before the repatriation of Boy, if this is to occur, the first defendant has proposed holding a service in Perth which she will pay for, unless the plaintiff wishes for a service to be held in Perth other than what she proposes. In that case, the first defendant states that she will seek a contribution to the costs of the service from the plaintiff.[29] She states that both ceremonies can be attended by relatives and friends by TeamViewer or a similar service, which could ensure direct involvement by both sides of the family in the funeral services and burial.[30]
[29] First defendant's submissions filed 15 January 2024 [63] - [65].
[30] Affidavit of Alexia Janet Huata filed 15 January 2024 [57].

Factual background

There are some facts which are not in dispute, namely, that Boy was born in October 2004 in Perth, and was 19 at the time of his death. He had 3 siblings, one of whom had a different biological father.
The first defendant was almost 16 years old when she had Boy. During the relationship of the plaintiff and first defendant, they lived together at various times, including with the plaintiff's mother, for 6 to 7 years.
The plaintiff and first defendant separated approximately 10 years ago. It is not in dispute that, notwithstanding their separation, Boy maintained a relationship with the plaintiff and his extended family.
It is also not in dispute that Boy lived in Perth all of his life and that during his life, he has never visited New Zealand. All of his siblings currently live in Perth, as does the plaintiff, the plaintiff's extended family, the first defendant, and the first defendant's parents.

Plaintiff's case

The plaintiff is aware the first defendant wants Boy to be buried in New Zealand. His evidence is that Boy never lived in New Zealand and did not feel strongly about that connection.[31]
[31] Affidavit of Daniel Phillip Pryor filed 5 January 2024 [19], [24].
The plaintiff says that Boy strongly identified as a Noongar man and valued his cultural heritage.[32] The plaintiff says that while Boy acknowledged his Māori heritage, he did not feel strongly about that connection for a number of reasons, including because he had never been to New Zealand.[33]
[32] Affidavit of Daniel Phillip Pryor filed 5 January 2024 [21].
[33] Plaintiff's submissions in reply filed 16 January 2024 [20].
The plaintiff's evidence is that there was a close relationship between Boy and the plaintiff's family.[34] Ms Kelly's evidence is that she taught Boy about Noongar culture, as well as her culture as a Yamatji woman. Ms Kelly's evidence is that Boy understood his Noongar, Yamatji, and Māori heritage and was respectful of all of his family.[35]
[34] Plaintiff's submissions filed 8 January 2024 [50], [54].
[35] Affidavit of Maureen Michelle Kelly filed 10 January 2024 [6] - [8].

The plaintiff accepts that he was not involved in Boy's life for a period of time but says that during this time, he financially supported the first defendant and his children.[36]
[36] Affidavit of Daniel Phillip Pryor filed 16 January 2024 [3] - [4]; Plaintiff's submissions in reply filed 16 Janaury 2024 [2].
A letter from Ms Winmar, a senior Noongar female elder, states that traditional Noongar custom holds that when a child is born on Country, they belong to Country and must be buried on the same Country they are born on.[37] Ms Kelly's evidence is that until Boy is buried on Country, his soul cannot rest.[38]
[37] Affidavit of Maureen Michelle Kelly filed 10 January 2024 'MMK16', p 16.
[38] Affidavit of Maureen Michelle Kelly filed 10 January 2024 [9].
The plaintiff says that his children and parents want Boy to be buried in Perth so that they can respect him, grieve for him, and visit him. The plaintiff says that if the burial occurs in New Zealand, they will be denied the opportunity to do these things.[39] The plaintiff also says that if Boy is buried in New Zealand, it is possible that he may be unable to attend the burial.[40]

First defendant's case

[39] Affidavit of Daniel Phillip Pryor filed 5 January 2024 [25] - [26].

[40] Affidavit of Daniel Phillip Pryor filed 5 January 2024 [31].

The first defendant was born in Raupunga, Hawkes Bay in New Zealand to Māori parents. All of her extended family are Māori, and she identifies as a Māori woman.
Her parents moved the family to Perth, Western Australia in 2002 when she was 13 years old, and she has lived here since that time.
She met the plaintiff at school and was almost 16 when Boy was born. After his birth, she lived with the plaintiff at the plaintiff's family home or with the plaintiff's extended family for lengthy periods of time. Her evidence is that over this time, she frequently went home and lived with her parents.[41]
[41] Affidavit of Alexia Janet Huata filed 15 January 2024 [10] - [14].
The plaintiff and the first defendant have two other children, who were born in 2009 and 2010.
After the birth of their youngest child, the first defendant says that she and the children, including Boy, have lived permanently with her parents. Her evidence is that she has shared the responsibility of caring for the children with her parents and maternal grandmother, although she has had sole responsibility for the decisions that have been made about the children's lives.[42]
[42] Affidavit of Alexia Janet Huata filed 15 January 2024 [17] - [22].
The first defendant accepts that the plaintiff's family have been involved with the children, and that she encouraged this.[43]
[43] Affidavit of Alexia Janet Huata filed 15 January 2024 [23].
The first defendant's evidence is that Boy was aware of his Aboriginality, and was proud of it, but that it was not an integral part of his existence. Her evidence is that Boy understood that he was part Aboriginal and part Māori, and lived in a Māori home, was raised by Māori's, and interacted with many Māori friends and relatives who came to stay or visit. At these times, 'Māori stories were told, traditions discussed, songs sung', and that he participated in each of these activities.[44]
[44] Affidavit of Alexia Janet Huata filed 15 January 2024 [36].
The first defendant's evidence is that Boy held an affinity for both of his cultures but did not display or profess any strong attachment to either culture. Her evidence is that Boy was principally attached to the first defendant, his siblings and maternal grandparents who raised him.[45]
[45] Affidavit of Alexia Janet Huata filed 15 January 2024 [37].
From about 18 months prior to Boy's death, the first defendant discussed moving back to New Zealand. Her evidence is that Boy did not express any reluctance about the move but wanted to remain together as a family. She says that she will, in the 'not too distant future', return to New Zealand and that the thought of not having her son with her is not a thought she can process. Her evidence is that being able to take Boy home to New Zealand was a core value of her and her immediate family.[46]
[46] Affidavit of Alexia Janet Huata filed 15 January 2024 [39], [55]-[56].
The evidence of the first defendant's parents is that they never intended to live permanently in Western Australia and have always intended to return to New Zealand. Their evidence is that they initially started to consider relocation approximately 18 months ago, but delayed those plans for a number of reasons, including so that they could assist the first defendant with the care of Boy. Their evidence is that they will move back to New Zealand within approximately 6 to 18 months.[47]
[47] Affidavit of Karen De-Anne Rarere filed 15 January 2024 [8] - [9]; Affidavit of Hemi Ngari Anthony Huata filed 15 January 2024 [20].
The affidavits filed by and on behalf of the first defendant refer to the relationship between the plaintiff and the first defendant and make a number of statements about the behaviour of the plaintiff towards the first defendant.[48] It is not possible on the hearing of this application to make any findings as to these matters. It is sufficient for the purpose of this application to say that the plaintiff did not reside with the first defendant or Boy for some considerable time prior to his death.

Evidence from the coroner's file

[48] Affidavit of Alexia Janet Huata filed 15 January 2024 [15]; Affidavit of Karen De-Anne Rarere filed 15 January 2024 [25] - [31]; Affidavit of Hemi Ngari Anthony Huata filed 15 January 2024 [11] - [18].

The affidavit of Ms Niclair, the Principal Registrar of the Coroner's Court, annexes the Mortuary Admission Form which gave the address of Boy as the first defendant's address. It also records that after the incident which led to Boy's death, the police attended the first defendant's home to speak to her, but she was unable to speak because of her extreme distress. The coroner's documents also describe the first defendant and her mother as Boy's next of kin.[49]
[49] Affidavit of Kelly Marie Niclair filed 8 January 2024, p 5 - 8.

Relevant factors

Is there a party who has the highest ranking privilege to take out administration of Boy's estate?

The first relevant factor is whether there is a party who has the highest ranking privilege to take out administration of Boy's estate.
It is common ground that Boy died intestate, that letters of administration have not been granted, and the plaintiff and first defendant rank equally in the ability to seek administration.
As a result, it is my view that this factor is a neutral factor.

Wishes of Boy

Neither party adduced any evidence as to whether Boy had expressed any wishes as to where he wanted to be buried, which is not surprising, given his age at the time of death.
As a result, I also consider this factor as neutral.

Costs and logistics of each proposal

On the evidence before me, I accept that each of the plaintiff and the first defendant has the funds to pay for the funeral service that they propose.
If the burial occurs in New Zealand, the plaintiff's evidence is that he may be unable to attend the service. He will, however, be able to attend the service proposed by the first defendant in Perth. I also accept that, given the cost of travel to New Zealand, this may and is likely to have an impact on who of Boy's friends and paternal family can attend any burial service that is held in New Zealand.

Evidence which favours burial in Western Australia

The factors which favour burial in Western Australia, of which there are a number, are as follows.
First, Boy was born in Perth and lived his entire life in Western Australia. He has never lived in New Zealand or visited it.
Second, at present, both of Boy's parents, his siblings, and grandparents, live in Western Australia and can attend the funeral. In addition, members of his extended family and his friends will be able to attend the funeral if it occurs in Perth. If the burial occurs in New Zealand, this may not be possible.
Third, if Boy is buried in Perth, the plaintiff, his extended family, and the first defendant and her children will all be able to visit his grave, at least in the short-to-medium term. This will not be the case if Boy is buried in New Zealand.
Fourth, the cultural matters deposed to by the plaintiff and Ms Kelly and the importance in Noongar culture that Boy, having been born on Country, be buried on Country.

Evidence which favours burial in New Zealand

There are also a number of significant factors which favour burial in New Zealand.
First, the cultural matters deposed to by the first defendant and her family, and the importance in Māori culture that Boy be buried on Country.
Second, that this is the preferred option of the first defendant and her family, who were the primary carers of Boy for all of his life and who was recognised by Boy as his next of kin.
Third, given the first defendant and her family intend to return to New Zealand, this will enable the first defendant to continue to visit Boy's grave, which will not be the case if he is buried in Western Australia.

Practicality of burial of Boy's body without delay

I note that there has already been a delay of more than 3 weeks in enabling the burial of Boy with the proper respect and decency that both of his parents accept should occur.
The evidence before the court is that both the plaintiff and first defendant are ready and able to attend to the organisation of the funeral without delay, on the court making orders.
I accept that there will inevitably be some delay in the event that burial is to occur in New Zealand. This is for two primary reasons.
First, prior to any repatriation of Boy to New Zealand, it is proposed that there be a funeral service in Perth.
Second, there will be a further delay of at least 5-7 business days in repatriating his body to New Zealand.

Conclusion

While both the plaintiff and the first defendant seek orders for a grant of letters of administration, I am not satisfied that it is necessary to make this order or that this order should be made on an urgent basis. In my view, in order to make an order for administration, this will require findings to be made on evidence that is contested and which has not been the subject of cross-examination.
In this case, as in many of the cases that come before this court, the court is asked to make a choice as to who should have the right within a family to have the carriage of the funeral of a much-loved family member.
As I have indicated earlier, I accept that whatever decision I make will inevitably cause very significant distress to the losing party. There is a dispute on the evidence about the nature and extent of both the plaintiff's involvement with his son, as well as the extent to which Boy identified as Noongar or Māori. It is simply not possible on the evidence before me to resolve these disputes, nor in my view, is it necessary.
In making my decision, it is important to emphasise that the decision does not concern whether the plaintiff was a good parent; what contributions he made to the life of Boy, or resolve whether Boy's primary cultural identity was Noongar or Māori. Resolution of these issues could take a significant period of time to enable the evidence that has been adduced to be tested and findings of fact to be made.
As I indicated during submissions of the parties, in my view, the totality of the evidence before the court indicates that Boy was extremely fortunate to have the influence of a great number of family members and extended family members in his life, and that he embraced the richness of his cultural background.
This has been an extraordinarily difficult decision to make.
However, on balance, having considered all of the evidence filed on behalf of the parties and taking account of the submissions which have been made by counsel, I am not persuaded that Boy's relationship with the first defendant should take primacy over all other factors. I consider that, for the following reasons, Boy's funeral should take place in Perth.
First, the body of Boy is in Perth, which is the place that he was born and lived the entirety of his short life. Proper arrangements have been made for his burial to occur here.
Second, Boy died in Perth. In practical terms, this suggests he should be buried here. While I accept the submission of counsel for the first defendant that is it not unusual for bodies to be flown to other locations for burial, this generally occurs when all parties agree that this should occur and should be the case.
Third, a burial in Perth will enable all immediate family members, who currently reside in Perth, to attend both Boy's funeral and burial.
Fourth, while I accept that the first defendant had the primary care and responsibility for Boy since birth and was recognised by him as his next of kin, this is not, in my view, a sufficient reason at law for Boy not to be buried in Perth, or for his body to be removed from Western Australia to enable burial to occur in New Zealand.
In my view, these factors are sufficient to mean that the balance of factors favour a funeral taking place in Perth.
That said, I am satisfied on the evidence before me that it is the first defendant who should have the carriage of Boy's funeral. This is because when all relevant matters are considered on balance, the first defendant has had the primary care and responsibility for her son since birth, she made all major decisions in respect of his life, and, importantly, was described by Boy as his next of kin in medical records.
In my view, each of these matters these are significant factors that must be given weight to.

Orders of court

For these reasons, it is my view that the orders that should be made by the court are as follows:
1.The first defendant have the carriage and control of the funeral and burial of [Boy] with such burial to occur in Midland, Western Australia.
2.The first defendant shall arrange the funeral and burial of [Boy] and is entitled to carry out steps which are considered necessary and appropriate to arrange the funeral and burial of [Boy], consistent with order 1, subject to consultation with the plaintiff as to those arrangements.
3.The State Coroner is to release the body of [Boy] to Sheridan Funerals or as otherwise directed by the first defendant.
4.No order as to costs such that each party shall bear its own costs of these proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
19 JANUARY 2024