Reece v Little

[2009] WASC 30

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   REECE -v- LITTLE [2009] WASC 30

CORAM:   TEMPLEMAN J

HEARD:   29 & 30 JANUARY 2009

DELIVERED          :   16 FEBRUARY 2009

FILE NO/S:   CIV 1181 of 2009

BETWEEN:   MARY REECE

Plaintiff

AND

NOELLA LITTLE
Defendant

Catchwords:

Administration of estate - Application for letters of administration and for an order granting burial rights to deceased's body - Dispute over who should arrange funeral and where burial should occur - Necessity for quick and practical solution - Statutory condition that de facto spouse entitled to estate if relationship with deceased continued for the two years prior to death - Living arrangements of deceased - Whether statutory condition satisfied - Whether evidence of living arrangements outweighed by evidence of deceased's wishes, cultural factors, deceased's connection with alternative place of burial, mediation between the parties, or children's wishes

Legislation:

Administration Act 1903 (WA), s 25

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr T F Percy QC & Ms F Hamlett

Defendant:     In person

Solicitors:

Plaintiff:     Clayton Utz

Defendant:     In person

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

Burrows v Cramley [2002] WASC 47

Calma v Sesar (1992) 106 FLR 446

In the Estate of Slattery (1909) 9 SR (NSW) 577

Jones v Dodd (1999) 73 SASR 328

Joseph v Dunn [2007] WASC 238

Smith v Tamworth City Council (1997) 41 NSWLR 680

Williams v Williams (1882) 20 Ch D 659

1. TEMPLEMAN J:  The plaintiff is the mother of a man who died on 1 January 2009, aged 32 years, apparently of a heart attack.

2. The plaintiff, her late husband, and the deceased are and were respectively, Aboriginal people of Yamaji descent.

3. The defendant claims to have been in a long term de facto relationship with the deceased who was the father of her two children, Melissa aged 10 and Robert James (Robert Junior) aged 7.  The defendant is also a person of Aboriginal descent.

4. A dispute has arisen between the plaintiff and the defendant about where the deceased's body should be buried.  The plaintiff wishes to have the deceased's body buried in Geraldton, whereas the defendant wishes to have the burial take place in Mount Magnet, where she and her children reside.

5. I am told that the deceased's body is at present in the State Mortuary in Perth, where it has been in the custody of the coroner who investigated the cause of the deceased's death.

6. I am told also that the coroner has released the deceased's body to the defendant. I do not know the basis on which the coroner made that decision. However, it has prompted the plaintiff to apply for an order pursuant to s 45(1) of the Administration Act 1903 (WA) that letters of administration of the deceased's estate be granted to her, and that an order be made granting the plaintiff full control of the deceased's body.

7. The application is made by originating summons. The plaintiff has issued also, a chamber summons in which she seeks an order that the time for service and hearing of the application be abridged; that the requirement for conferral under O 59 r 9(1) of the Rules of the Supreme Court 1971 (WA) be waived; that an injunction be granted to restrain the defendant from proceeding with the funeral arrangements for the deceased and that an order be made granting letters of administration for the estate of the deceased to the plaintiff.

8. The plaintiff's originating summons and chamber summons were filed on 28 January 2009.  The application is supported by a number of affidavits which were filed at the same time.

9. The defendant was informed on the afternoon of 28 January 2009 that the proceedings had been commenced.  I understand that the documents to which I have referred were sent to her by facsimile.

10. The application came before me on 29 January 2009, when Mr T F Percy QC and Ms F Hamlett appeared for the plaintiff.  The defendant appeared in person by video link from Mount Magnet.  Shortly before the hearing, the defendant sent facsimiles of affidavits and other documents to the court.

11. The defendant informed me that she had that morning contacted Mr Arthur Metaxas, and asked him to act as her solicitor.  The defendant said Mr Metaxas was willing to take her case but that he was in court that day and had asked her to adjourn the matter 'for a few more days' so that he would be able to represent her.

12. As I have noted above, the deceased died on 1 January 2009.  It was therefore important that his body should be buried as soon as reasonably practicable.  However, it seemed to me to be in the interests of justice that the defendant should be granted a short adjournment so that she could obtain legal representation.  Mr Percy QC agreed that I should take that course.  I did so, on the basis that the defendant would not take any further steps in relation to the burial.  The defendant, who told me that she had only made some preliminary enquiry about arranging a funeral, gave that undertaking.  The plaintiff had previously filed an undertaking in damages.

13. My Associate was in contact with Mr Metaxas late on the afternoon of 29 January 2009, after the conclusion of his court commitments.  At that stage, of course, Mr Metaxas could do no more than to obtain instructions from the defendant so as to determine the nature and scope of the dispute and to consider whether he would be available to act as a matter of urgency.

14. On the morning of 30 January 2009, Mr Metaxas contacted my Associate by email.  He said that the plaintiff's solicitors would not send him the papers by email unless he agreed to act, or unless the defendant sent them a facsimile requesting them to pass the papers to Mr Metaxas.  In any event, Mr Metaxas understood that the defendant would send the papers to him by facsimile during the course of the day.

15. In the meantime, I had considered the papers in more detail, including further materials provided to me by both the plaintiff's solicitors and the defendant.  Having done so, I came to the conclusion that the plaintiff's application should be dismissed.  I therefore instructed my Associate to inform Mr Metaxas that I would not need to hear from him.  I reconvened the court at 2.15 pm on 30 January 2009.  Mr Percy QC and Ms Hamlett again appeared for the plaintiff and the defendant again appeared in person by video link from Mount Magnet.

16. I announced my decision, made an order dismissing the plaintiff's application and informed the defendant that she would be free to proceed with the funeral arrangements for the deceased.  I gave a brief outline of my reasons for reaching that decision and said that I would publish my full reasons in due course.  I now set out those reasons.

Legal principles

1. The following principles are well established:

   1.There is no property in a dead body.  That is to say, no one can own the body of a deceased person:  Williams v Williams (1882) 20 Ch D 659, 663.

   2.If the deceased person has made a will and named an executor, the person so named has the right to arrange for the burial of the deceased's body:  Smith v Tamworth City Council (1997) 41 NSWLR 680 (Young J).

   3.If the deceased has died intestate, that is, without having made a will, and has left an estate, the person entitled to a grant of administration of that estate is usually the person responsible for the burial of the body and the payment of the funeral expenses, which may be recouped from the estate.  As the burial usually takes place before there is a grant of administration, the court attempts to identify the person who is most likely to obtain the grant of administration:  In the Estate of Slattery (1909) 9 SR (NSW) 577 applied in Jones v Dodd (1999) 73 SASR 328.

   4.Although the common or usual approach referred to in subpar 3 above is not a principle of law 'it would have to be an extremely rare case to depart from the usual approach':  Burrows v Cramley [2002] WASC 47 [27] (Pullin J).

   5.If the case is contentious, then, even if the deceased's estate is small so that a grant of administration is unnecessary, the court will still consider who would be the person best qualified to obtain a grant:  Burrows v Cramley [28].

2. Section 25(1) of the Administration Act provides that the court may grant administration of the estate of a person dying intestate to the person or persons (separately or conjointly) who have attained the age of 18 years and is or are entitled to the intestate's estate.

3. Section 14 of the Administration Act sets out the scheme by which entitlements to the distribution of a deceased's estate are to be determined.  The scheme is set out in a table.  It is not necessary to refer to the table in any detail.  It is sufficient for present purposes to note that where, as here, the deceased's estate is small, a surviving husband or wife has a greater right to the estate than a parent of the deceased.

4. Section 15 of the Administration Act provides that if the intestate dies leaving a de facto partner, but no husband or wife, then where:

   the de facto partner and the intestate lived as de facto partners for a period of at least 2 years immediately before the death of the intestate, the de facto partner shall be entitled, in accordance with s 14, to the intestate property to which a husband or wife of the intestate would have been entitled, had the intestate died leaving a husband or wife.

   In other words, a surviving de facto partner who satisfies the two year qualification period is accorded status equal to a husband or wife in relation to the deceased's estate.

5. Applying these principles to the present case, the first question I have to determine is whether, on the balance of probabilities, the defendant and the deceased lived as de facto partners for a period of at least two years immediately before his death.  If so, the defendant would be the person best qualified to obtain a grant of representation.  It would then be necessary to consider whether there were other factors which justified a departure from that conclusion.

6. On the other hand, if the defendant and the deceased had not lived as de facto partners for the requisite period, the plaintiff would be best qualified for a grant of administration.  Again, it would be necessary to see whether there were any factors which justified a departure from that conclusion.

7. Disputes of the kind which have arisen in this case must necessarily be resolved quickly.  That is a particularly significant consideration in the present case, the deceased having died over four weeks ago.  The application can only be decided on affidavit evidence or documents produced to the court without objection from an opposing party.  Issues which would normally require a trial - or at least, cross‑examination on affidavits - must be decided on the relevant papers.  I respectfully agree with the approach taken by EM Heenan J in Joseph v Dunn [2007] WASC 238 [29] that disputes of this kind are to be determined on the merits, not by applying the well known tests for determining whether or not a court should grant interlocutory relief. That is because, for all practical purposes, the decision in cases of this kind will be final.

The relationship between the deceased and the defendant

1. I find that the deceased and the defendant entered into a de facto relationship in 1997.  As I have noted above, two children were born out of that relationship, Melissa on 13 April 1998 and Robert Junior on 22 February 2001.

2. The defendant says that the relationship continued until the deceased's death.  The defendant has produced a facsimile copy of a Centrelink document dated 8 January 2009, on which the deceased is shown as her partner.

3. It might be said that the deceased is shown as the defendant's partner only because that is what the defendant told Centrelink.  However, I have also a letter dated 8 January 2009 from Ronella Rose Kelly, in which Ms Kelly says she is the Centrelink Officer of the Mount Magnet Centrelink Agency.  She says she confirms the relationship of the deceased and the defendant, who, she says she has known 'as a couple' for 10 years.  Ms Kelly says that during that period, the deceased and the defendant 'have not separated'.

4. The letter is on the letterhead of the Shire of Mount Magnet Public Library and bears the Centrelink stamp.  Ms Kelly has also sworn an affidavit in which she gives her occupation as 'Librarian/Centrelink Officer'.  Ms Kelly says she is the deceased's cousin and also the defendant's first cousin.

5. Ms Kelly repeats in her affidavit the assertion that the deceased and the defendant 'were always in a de facto relationship'.

6. The defendant has produced a facsimile copy of her Medicare card. It contains the names of the defendant, the deceased and their two children.

7. The defendant has produced also a letter from the Customer Service Officer of the Pilbara Region of the Department of Housing and Works.  The letter confirms that the defendant and the deceased are currently listed together for a three bedroom house to be provided by the Department.  The letter attaches a form dated 4 June 2008 and signed by the deceased in which he gives his relationship to the defendant as 'de facto'. 

8. The defendant has produced other official documents showing the deceased's address as Mount Magnet.

9. In an affidavit sworn on 30 January, the defendant deposes to the fact that her de facto relationship with the deceased commenced in January 1997.  She says that when Melissa was born, she and the deceased were living in Koongamia, Perth.  Three months later, they moved to Mount Magnet, where they were living when Robert Junior was born.  Initially, they lived with the defendant's parents until they moved to a place of their own.

10. The defendant says that they moved to Cue in March 2002 and lived at the Thoo Thoo Warniha Camp, about 3 km west of Cue, where they stayed with the defendant's parents and other family members.

11. The defendant says they then moved to Geraldton because of her 'medical condition', so as to be closer to her doctors.  The defendant says that they lived in Geraldton for about six to nine months, and then returned to Cue.

12. In about September/October 2004, the defendant, the deceased and their two children moved to South Hedland.  They stayed for five to six months in the plaintiff's house and then moved to their own place in Daylesford Close.  They stayed in South Hedland until August 2006 and then moved back to Cue.

13. Because of the lack of work in the Cue area, the deceased returned to Hedland in mid‑January 2007. 

14. The defendant says that she soon followed the deceased, at his request, and went back to Hedland with her sister Joslyn Mary Little and her sister's partner Warren Walsh, who is the deceased's cousin.  The deceased, the defendant and their children stayed with Joslyn and Warren at 11A Beroona Loop, South Hedland, for the next 16 months.

15. The defendant's father passed away on 2 February 2008.  The defendant says that as true believers of Aboriginal culture, her whole family moved back to Mount Magnet to be close to her dearly beloved father.  However, the deceased and the defendant continued to live in Hedland until July 2008, when the defendant found the grieving process for her father to be too difficult to cope with in the absence of support from family members.  They then moved back to Mount Magnet, which was their home until the deceased's death.  However, the deceased travelled to Port Hedland on 11 December, in order to obtain work so that he could buy Christmas presents for the children.  While the deceased was in Port Hedland, the defendant sent him two express money orders, totalling $500.

16. The deceased travelled to Karratha on 27 December, and to Perth on 30 December to stay with the defendant and the children at her brother's house.

17. The deceased left for Karratha on 31 December, with Robert Junior.  On his arrival, he telephoned the defendant and said he was tired and needed to rest.  The deceased died the following day.

18. The defendant's evidence that there was an ongoing de facto relationship between her and the deceased is supported by evidence to that effect from various members of her family.  It seems, from the evidence of some of those witnesses, that the relationship was not always a good one.  For example, the defendant's sister, Joslyn Mary Little (to whom I have referred above) said of the relationship between the deceased and the defendant:

    They were like any other couple I knew, they argued and would fight, but they never split up.  [The deceased] was not a violent person and hitting [the defendant] was not in his nature.  Instead of hitting her he would run away and leave town.  He would always come back when he had cooled down.  Sometimes 2 days and other times 2 months, but he always came back to his [wife] de facto.

19. Joslyn Little confirms that the deceased and the defendant lived with her and her partner Warren Walsh at 11A Beroona Loop, South Hedland from March 2007 until July 2008. 

20. Lisa Mary Walsh, whose husband is a cousin of the deceased, said of the defendant and the deceased that:

    If they had an argument (as) I think everybody does, he [the deceased] would go for a break but always would come home to [the defendant] and the 2 children.

21. Donnette May Yates, who is also a sister of the defendant, said that the defendant and the deceased:

    Had their fair share of arguments like everyone else but he always came back.  They were never separated.

22. The picture which emerges from the evidence filed by and on behalf of the defendant, is, therefore, of an ongoing de facto relationship which was not without its difficulties.  Those difficulties resulted in the deceased leaving home from time to time, but always returning.  Also, the deceased lived away from home from time to time in order to obtain employment. 

23. The evidence filed by and on behalf of the plaintiff is not inconsistent with the defendant's evidence.  For example, the plaintiff herself referred to the relationship between the deceased and the defendant as 'always volatile'.  The plaintiff said that because of 'the constant interference and conflict' between the defendant's family and the deceased, he would regularly telephone the plaintiff, in tears, and would ask for money so that he could get away from the defendant and her family.  The plaintiff said this happened on many occasions.

24. The assertion that this happened 'on many occasions' supports the evidence given on behalf of the defendant that the deceased always returned to her.  It does not, therefore, signify the end of a de facto relationship.  Indeed, the evidence of Rodney John Reece, the deceased's brother, was that:

    [The deceased] wanted he and [the defendant] to be a family and [the deceased] tried many times to take [the defendant] and their 2 children away from [the defendant's] family so they could live as a family unit.

25. This evidence conflicts with that of Nathaniel Moodie, who is the de facto partner of the deceased's sister, Joslyn Reece.  Mr Moodie says that on 3 October 2008, the deceased said he had 'had enough of living with the defendant … and her family, that he wanted to live and work in Port Hedland with his mother and sister, and wait for a house from 'State Housing''.

26. It is not necessary to decide whether the deceased said words to the effect attributed to him.  If he did, then it was clearly contrary to his intention to obtain a house for himself, the defendant and their children.  I have referred above to the relevant application form.

27. The plaintiff's evidence is that the deceased had been residing in South Hedland 'for at least the past two years':  par 6 of her affidavit sworn 27 January 2009.

28. The basis for that assertion is three documents showing the deceased's address as 6/4 Limpett Crescent, South Hedland.  These are:

    •An annual benefit statement for the year ended 30 June 2007 from a superannuation fund.

    •The licence and third party insurance policy dated 29 September 2007 relating to the deceased's motor vehicle.

    •A letter dated 15 November 2007 to the deceased from the Department of Housing and Works approving the deceased's application for rental housing.

1. 6/4 Limpett Crescent is the address given by Rodney John Reece, the deceased's brother, in his affidavit sworn 27 January 2009.  In his affidavit, Mr Reece says that for at least the last two years, the deceased was living and working in Port Hedland and South Hedland.  However, Mr Reece does not say that the deceased lived with him at Limpett Crescent: and the evidence to which I have referred above, of the defendant and her sister, Joslyn, does not suggest that the deceased lived at Limpett Crescent while he was working in Port Hedland.

2. The evidence suggests to me that the deceased used his brother's address as a convenience, but that it was not his residential address.  In any event, I prefer the defendant's direct evidence about her and the deceased's living arrangements, where it conflicts with the evidence about those matters given by the plaintiff's witnesses.

3. I note from medical records from the Port Hedland Hospital, supplied by the plaintiff, that in November and December 2004, the deceased was treated at the Emergency Department of the hospital.  On 29 November 2004, his address is recorded as 6/4 Limpett Crescent, but is preceded by a notation which is difficult to read but which might be an abbreviation for 'care of': and on 30 December 2004, the deceased's address was initially given as 6/4 Limpett Crescent, but this has been deleted and another address inserted in its place at 7 [illegible] Crescent, South Hedland.

4. I have referred above to the defendant's evidence that for the five to six months following September/October 2004, the deceased, the defendant and their two children were living in the plaintiff's house in South Hedland.  However, it is not clear whether the plaintiff was then living at Limpett Crescent.

5. The plaintiff relies on the medical records because it gives her name as the next of kin.  However, in the absence of any evidence as to the deceased's understanding of that term, I can place no weight on that entry.

6. I note also that the form contains a box entitled 'Marital status'.  It contains six options, 'NM, M, D, SEP, W, Def'.  On both forms, the abbreviation 'NM' has been circled not, 'Def'.  I take this to mean that the person completing the form understood that the deceased was not married.  I assume 'Def' to refer to a de facto relationship.  However, without knowing what questions the deceased was asked, I can place no weight on this entry.

7. Finally, the plaintiff produced an affidavit from a woman who said that from January 2006 until January 2007, she and the deceased had 'an ongoing relationship' which 'included that of a sexual nature'.  This witness said the deceased told her that he wanted to be with his children and not the defendant.  The witness says also that the defendant became aware of the relationship between her and the deceased in September 2006. 

8. In an answering affidavit, the defendant says that she knew about the witness to whom I have referred and the two nights the deceased had spent with her.

9. The defendant says she became aware of these matters in August 2006 when the deceased confessed to her.  The defendant says she then told the deceased she wanted nothing further to do with him.  However, the defendant says that the deceased came to her three days later and she forgave him.

10. It is hardly surprising that a man should tell a woman with whom he was having an affair, that he no longer wished to be with his wife or partner.  However, the fact that, in the present case, the deceased confessed his infidelity to the defendant tends to show where his true feelings lay.

11. I return to the question raised by s 15 of the Administration Act:  whether, for a period of at least two years immediately before the death of the deceased, he and the defendant 'lived as de facto partners'.

12. Clearly, people who live as de facto partners, do not necessarily spend every day under the same roof.  As Mr Percy QC put it in his submissions, the question is 'whether both members are unanimous in the relationship'.  It is a question of intent (t/s 5).

13. I accept that to be the correct approach.  Thus, a de facto relationship would continue, if the parties intended that it should, despite the absence of one partner (for example) on military service for an extended period, or for the purposes of employment.  Further, if the partners have personal difficulties and spend some time apart for that reason, their de facto relationship will survive, if they intend that it should.  Even infidelity will not necessarily result in the termination of a de facto relationship.

14. In the present case, the evidence as a whole satisfies me that for the two years immediately before the deceased's death, despite their difficulties he and the defendant were living as de facto partners.

15. The consequence of this conclusion is that the defendant is the person who is entitled to the deceased's property and therefore has a higher qualification than the plaintiff to a grant of administration of the deceased's estate, under s 25 of the Administration Act, and therefore, to burial rights.  However, as I have noted above, it is necessary to consider whether there are other factors present in this case which make it appropriate to depart from that conclusion.  The plaintiff has raised a number of matters, to which I now refer.

The deceased's wishes

1. The plaintiff's evidence is that about a week before Christmas 2008, the deceased came to her and said 'If I die, take me back to Geraldton'.  The plaintiff said that although she protested that she would predecease him, he made her promise that she would do as he asked.

2. Kylie Dalgety, who is the deceased's first cousin, said the deceased told her that when he died he wanted to be buried in Geraldton with his family.  Similarly, the evidence of the deceased's two sisters, Joslyn and Jonnelle Reece is to the effect that shortly before Christmas 2008, the deceased expressed the same wish to each of them and extracted similar promises.

3. Nathaniel Moodie's evidence is that on 3 October 2008, the deceased said that if anything happened to him, he should help Joslyn bury him in Geraldton with his father, grandmother and uncle.

4. There is no other evidence as to the deceased's wishes in relation to his burial.

Cultural matters

1. The plaintiff's evidence is that:

   In Aboriginal culture, there is a strong belief that the deceased's body has to be brought home so that his spirit can be at peace.  The exception to this is where an Aboriginal person has lived at another [Aboriginal] Country for a long time and asked to be buried in that [Aboriginal] Country.  This is not the case with [the deceased].  The opposite is true.  [The deceased] wanted to return to his Country.  If [the deceased's] spirit is not at rest, then our Aboriginal belief is that the family that prevented him from returning to his Country may be tormented by his spirit.  [emphasis supplied]

2. The plaintiff has filed also, an affidavit sworn by Elisabeth Kelly, the deceased's grandmother who is an Elder of the Yamaji community.  Mrs Kelly says that it is 'culturally significant' that the deceased be buried at Geraldton with his other family members:

   The reason for this is that if he is not buried in Geraldton with his family, his spirit will not rest.  His spirit will forever wonder the spirit world and not go to his Dreamtime.  His family know this and will always be in torment if he is not brought home.

3. It is not clear what is meant by the reference to 'his family' in this context.  If it is the deceased's immediate family, including the defendant and his two children, then the expression would have the same meaning as 'the family that prevented him from returning to his Country' referred to in the extract from the plaintiff's evidence set out above.  If that is the case, then it is the defendant who might, or will be, in torment if the deceased's body is not buried in Geraldton.  However, this is apparently not a matter about which the defendant is concerned.  Indeed, the evidence she has adduced, in particular from Elizabeth Anne Walsh, an aunt of the deceased, is that 'there is no culture in Geraldton, that died down a long time ago'.

4. If, on the other hand, the reference to 'family' in Elisabeth Kelly's evidence has a different meaning from the expression used in the plaintiff's evidence, then the extent of the cultural belief is unclear.

The deceased's connection with Geraldton

1. It appears to be common ground that the deceased was born and brought up in Geraldton, and attended school there.  I have referred above to the defendant's evidence that she and the deceased and their two children lived in Geraldton for a period of six to nine months, apparently between 2002 and 2004, so that the defendant would be able to obtain necessary medical treatment.

The deceased's connection with Mount Magnet

1. I have referred above to the defendant's evidence that from 1997, when she and the deceased commenced their de facto relationship, they have regarded Mount Magnet as their home, even though they moved away from time to time.  Mount Magnet is clearly the place in which the defendant and her children now live and in which, according to the defendant, they will remain.

2. The plaintiff says she has 'real doubts' that the children will remain in Mount Magnet.  However, it is obviously impossible to know where the children (or indeed the defendant) are likely to spend their lives.

The mediation agreement

1. Because of their inability to agree where the deceased's body should be buried, the plaintiff and the defendant took part in a mediation held on 10 and 15 January 2009, at Yalgoo, a small town between Geraldton and Mount Magnet, albeit closer to the latter.

2. The plaintiff's evidence is that when she and her son arrived for the mediation on 10 January 2009, they encountered about 30 people from the defendant's extended family.  The plaintiff said she felt anxious and threatened by this.  She said further, that the defendant's extended family intimidated her and she felt coerced in agreeing that the burial should take place in Mount Magnet.

3. Perhaps for this reason, the parties entered into a second mediation on 15 January 2009.  On that occasion, the Aboriginal Alternative Dispute Resolution Service (AADRS) acted as facilitator.  The plaintiff says that the mediation lasted approximately five hours.  The plaintiff says she had fallen ill before the mediation and had difficulty sleeping.  She believed she could not make a considered decision about the burial.

4. The plaintiff says that during the second mediation, the defendant stated 'that her first instinct was to bring [the deceased] back home to Geraldton'.  The plaintiff said that it was only after 'talks' with the defendant and her children, that the defendant changed her mind and wanted the deceased's body to be buried in Mount Magnet.

5. The plaintiff said she believed that a mutually acceptable agreement was not reached during the mediation as there were time limits and a decision was made in haste.

6. The plaintiff exhibits a document prepared by Halsmith Consulting, apparently under the auspices of the AADRS.  The document sets out the various elements of the agreement said to have been reached at the mediation.  There is nothing in the document which supports the plaintiff's contention that the agreement recorded was not acceptable or was made in haste.  There is no evidence from the mediator.

7. Further, the document contains a clause recording an agreement between the parties that if any further clarification relating to the issues was needed, they would first attempt to resolve those issues 'by respectful communication':  and if that was not satisfactory, they would contact AADRS for a further mediation session.  The parties further agreed that there would be no legal action, nor threats of any sort, regarding the matters under discussion.

The children's wishes

1. As I have noted above, it is the defendant's evidence that her children would like to have their father's body buried in Mount Magnet, where they will be able to take care of his grave.  The defendant has produced a letter dated 28 January 2009 from Jo‑Anne Burgemeister, a Community Mental Health Nurse with the Midwest section of the WA Country Health Service of the Department of Health.  Ms Burgemeister says:

   My client advises me that she identified herself as a partner in a marriage‑like relationship, and therefore one of her roles is the right to bury her partner with consideration to what is best for herself and her children, and also to give consideration to any wishes her deceased partner may have expressed to her.  To be denied that right is suggesting that she has no rights as a partner and their children are not important, this is contributing to a great deal of emotional distress, [the defendant] is not only grieving the death of her partner, she is also grieving the lack of respect shown her, from her partner's family, as the mother of his children.

   The children are responding to the loss of their father and the distress of their mother in a way that is further traumatizing them.

   I respectfully request that [the defendant] be allowed to arrange a funeral and allow the children to participate in this very important cultural tradition.  I believe this will help them work through the grief process.

2. In relation to the trauma suffered by the defendant's children, I note her evidence that it was her son who first discovered that his father had died.  This is clearly a most traumatic experience for a 7‑year‑old.  It is common ground that the deceased had a very close and loving relationship with his children.  He always wanted to do his best for them.

Conclusion

1. In Jones v Dodd [52], Perry J referred to the decision of Calma v Sesar (1992) 106 FLR 446 in which Martin J was required to decide whether the remains of a deceased son of the parties should be buried in Darwin or Port Hedland.

2. Martin J said:

   To state that the Court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables.  Further, 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 in so far as they reflected a legal duty or right.  That solution will not embrace the resolution of possibly competing spiritual or cultural values.

   The conscience of the community would regard fights over the disposal of human remains such as this as 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. 

3. Perry J went on to say that in his opinion, proper respect and decency would compel the courts to have some regard to what Martin J had referred to as 'spiritual or cultural values', even if the evidence as to the relevance of such considerations in a particular case may be conflicting.  I accept that proposition.

4. In the present case, for the reasons given above, the evidence about the cultural significance of a burial in Geraldton is by no means clear, even if regard is had only to the evidence of the plaintiff and her witnesses.  Further, there is an issue as to the extent of the deceased's connection with Geraldton, having regard to the fact that it has not been his permanent home for at least the past 12 years.  Similarly, the extent of the deceased's connection (in cultural terms) with Mount Magnet is unclear.

5. What is clear, particularly having regard to the outcome of the mediation, is that a burial in Mount Magnet would take place with due respect for the Aboriginal customs relating to such events.  So far as the defendant, her children and their extended family in Mount Magnet are concerned, a burial there would clearly be regarded as a homecoming.

6. I appreciate that a burial in Mount Magnet might well be contrary to the wishes of the deceased, at least as expressed to the plaintiff and his sisters.  However, according to the defendant and her witnesses, the deceased never expressed any wishes to them as to his place of burial. 

7. In any event, I consider that the wishes of the defendant, as the person best qualified to obtain a grant of administration of the deceased's estate, must prevail over the wishes of the deceased's mother, the defendant, and the other members of her family.  This is especially so, when the deceased's wishes were not expressed in any testamentary way.

8. The plaintiff submits that I should not apply that principle, but make a judgment based on practical considerations, including the better ability of the plaintiff to arrange the funeral, and the threat of violence if the funeral was to take place in Mount Magnet.

9. I do not accept this submission, having regard to the agreement reached at the mediation, that the defendant and her family would be responsible for the funeral expenses, and that the plaintiff and the defendant would do what they could to ensure everyone's safety. 

10. In any event, I do not think that the court should be influenced in making a decision by the consideration that it might provoke acts which would not only be disrespectful of a deceased person, but also, unlawful.

11. Further, in my view, the wishes of the deceased's children carry very great weight in the circumstances of this case, particularly having regard to the traumatic effect on Robert Junior, the defendant's son, who was the first to discover that his father had died.  This view is based not only on my own perception of the evidence but is informed by the opinion of Ms Burgemeister, the Community Mental Health Nurse, to which I have referred above.

12. I appreciate that if the burial takes place in Mount Magnet, the plaintiff might well suffer some distress, as might the members of her family and extended family.  The same would be said of the defendant, her family and extended family if the burial was to take place in Geraldton.  That is the unfortunate consequence of disputes such as this.

13. However, although I have had regard to the factors to which I have referred above, I have concluded that there is nothing which warrants a departure from the usual approach to be taken in cases of this kind.  Further, the position of the children of the deceased and the defendant reinforces my view that the usual approach is appropriate here.

14. For all these reasons, I conclude that the plaintiff's application should be dismissed.  The defendant, to whom the deceased's body has been released by the coroner, will therefore be free to make funeral arrangements in accordance with her wishes, without further hindrance.