State of South Australia v Smith - [2014] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
STATE OF SOUTH AUSTRALIA v SMITH & ANOR
[2014] SASC 64
Judgment of The Honourable Justice Nicholson
22 May 2014
HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES
HEALTH LAW - BURIAL AND CREMATION - POWERS OF AUTHORITIES
Application by Minister for the Department of Communities and Social Inclusion seeking orders with respect to disagreement concerning burial of intestate deceased - two applications for funeral assistance made to Minister - deceased of Aboriginal descent - first defendant (putative domestic partner who lives in Ceduna) submitted that deceased should be buried in Coober Pedy, in accordance with traditional beliefs - second defendant (son of the deceased) submitted that deceased should be buried at Port Augusta with his deceased young son and where other children including the second defendant live - relevant considerations to determine place of burial - the body of the deceased presently in the custody of an undertaker awaiting the Court's decision.
Held: that the deceased to be buried in Port Augusta in accordance with the wishes of the second defendant.
Crown Proceedings Act 1992 s5; Family and Community Services Act 1972 (SA) s10; Family Relationships Act 1935 s11A; Probate Rules 2004 (SA) Rule 32.01 , referred to.
Minister for Families and Communities v Brown & Ors [2009] SASC 86; Australian Conservation Foundation Inc v South Australia (1990) 53 SASR 349; Aboriginal Community Benefit Fund v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494; Smith v Tamworth City Council (1997) 41 NSWLR 680; Jones v Dodd (1999) 73 SASR 328; Williams v Williams (1882) 20 Ch D 659; R v Sharpe (1885) 10 CB 776, 138 ER 307; Meier v Bell [1997] Supreme Court of Victoria (Unreported, Ashley J, 3 March 1997); Jones v Dodd [1998] SASC 6769; Dodd v Jones [1999] SASC 458; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Technilock (Aust) Pty Ltd v Mondoquip Pty Ltd [1999] SASC 320; Dow v Margaret Anne Hoskings & Ors [2003] VSC 206; Reid v Love & North Western Adelaide Health [2003] SASC 214; Ugle v Bowra & O’Dea [2007] WASC 82 ; Frith v Schubert & Anor [2010] QSC 444, considered.

STATE OF SOUTH AUSTRALIA v SMITH & ANOR
[2014] SASC 64
NICHOLSON J.
Introduction

The Department for Communities and Social Inclusion (“the Department”) has caused an application to be brought, in the name of the State of South Australia,[1] seeking orders as to the final burial place and mode of burial of Raymond William Boland who died, intestate, on 3 December 2013. The need for the Court to intervene has arisen because there has been prolonged disagreement among family members of the deceased as to the appropriate burial location.
[1] Crown Proceedings Act 1992, s5.
The Department, together with the Minister for Family and Community Services, is responsible for the administration of the Family and Community Services Act 1972 (SA). One of the Department’s functions, in administering this act, involves operating a funeral assistance program. The program provides, upon application, financial and other assistance in circumstances where a person has died with minimal financial resources and where there is no other source of funding for a proper funeral.
Two written applications for an assisted funeral for the deceased were received by the Department. One, dated 6 January 2014, was made by or on behalf of the second defendant, Peter Boland-Wilton, a 17 year old son of the deceased. The second, dated 9 January 2014, was made by the first defendant, Melissa Gail Smith, the putative domestic partner of the deceased. Mr Boland-Wilton wishes for the deceased to be buried in Port Augusta whereas Ms Smith wishes for the deceased to be buried in Coober Pedy.
Notwithstanding significant efforts on the part of the Department and family members to mediate the dispute, an informal resolution has not proved possible. As a consequence, the plaintiff has sought declaratory relief in the following terms:[2]
1.A declaration as to the place of burial of the deceased.
2.A declaration that the plaintiff may direct the undertaker to bury the deceased in accordance with the order of this Honourable Court.
3.A declaration that in relation to matters other than the place of burial which is to be ordered by this Honourable Court, the undertaker bury the deceased in accordance with the wishes of either the first or second defendant.
[2] Statement of claim filed 24 April 2014; a summons filed earlier contained a prayer for relief in different (albeit broadly the same) terms.
The protagonists are the first and second defendants. However, the proceedings in this Court were initiated by the Department styling itself as the plaintiff. Disputes involving the right to bury a deceased person are justiciable before this Court as part of its inherent jurisdiction. No such jurisdiction has been conferred on this Court by statute.[3] Whilst the question of standing is a different matter, none of the parties suggested that the State might not have standing to bring such a dispute before the Court. Nevertheless, I make the following brief observations in this respect.
[3] Minister for Families and Communities v Brown & Ors [2009] SASC 86.
Ordinarily, a plaintiff must have a sufficient special interest in the subject matter of an action, in the absence of a special statutory or legal right to bring the action, before it will be found to have standing.[4] The criterion of special interest is a flexible one and does not necessarily speak of a commercial interest.[5] In this case, the plaintiff conducts a funeral assistance program pursuant to the objectives of the Family and Community Services Act 1972 (SA) and the very wide powers granted to the Minister for Communities and Social Inclusion and to the Department pursuant to s10 thereof. In particular, one of these objectives and the manner by which it might be achieved is as follows:[6]
[4]    Australian Conservation Foundation Inc v South Australia (1990) 53 SASR 349.
[5]    Aboriginal Community Benefit Fund v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494.
[6]    Section 10(1)(b) and (f).
(1)The objectives of the Minister and Department under this Act are –
(a)     …
(b)     to promote the dignity of the individual and the welfare of the family as the bases of the of welfare of the community,
in the following manner:
..  .  .
(f)     by providing individuals or families in need or distress with assistance by way of grants or loans of money or commodities, accommodation, financial counselling or any form of assistance;
The Department, in accordance with its internal rules governing the funeral assistance program, will provide funds for and will assist in arranging a funeral service where the immediate relatives of a deceased person have insufficient funds to cover the funeral expenses and where the estate is valued at less than $3,000.[7] It is common ground that the deceased in this case died with no estate of any value and that the immediate relatives are without funds sufficient to cover the costs of a funeral.
[7] Affidavit of Christine Anne Moore, Manager, Concessions and Support Services, Department for Communities and Social Inclusion, sworn 21 March 2014 at [1]ff.
The Department, in endeavouring to carry out its administrative functions in accordance with its statutory obligations, found itself in receipt of conflicting requests for assistance pursuant to the funeral assistance program. It was faced with circumstances where: family conflict could not be resolved by the Department; it was essential that arrangements for the burial of the deceased be resolved with as much haste as decently could be managed; the dignity of the deceased and of all interested family members was of paramount concern; the integrity of the Department’s processes needed to be protected and preserved and where it would seem that neither of the protagonists had the wherewithal, financial or otherwise, to take the necessary steps to bring this matter before the Court in a timely manner. In these circumstances, I am satisfied that the State, through the Department, has standing to bring this application.
Factual background
The deceased was born, in Port Augusta on 4 October 1975, of Aboriginal descent. He was brought up in Coober Pedy and the surrounding lands. It is common ground that, as an adult, he pursued an itinerant lifestyle. He regularly travelled between Coober Pedy, Port Augusta, and Ceduna. He remained in each location for up to two or three months at a time staying with and visiting family. The deceased died on 3 December 2013 in Ceduna. He was with the first defendant at the time.
The first defendant, Melissa Smith, is the putative domestic partner of the deceased. They first met in Coober Pedy in 1999 shortly after which they commenced a relationship. They have one child together, Norman Boland, who is seven years old. The first defendant and Norman have lived in Ceduna for all of Norman’s life. The first defendant maintains that her relationship with the deceased as domestic partners endured until his death. However, members of the second defendant’s Port Augusta family do not accept this.
The second defendant, Peter Wilton, at 17, is the oldest of three children of the deceased and another former partner, Katrina Wilton. One of those siblings, Alvin Wilton, is deceased and is buried in Port Augusta. The second defendant lives and has been brought up in Port Augusta.
As already mentioned, two separate applications for funeral assistance have been made. The Department has agreed to arrange and pay for the costs of a funeral subject to the dispute over the place of burial being resolved. Whilst the applications for funeral assistance were made by or on behalf of the first and second defendants respectively there is a sense in which each represents the interest of a wider group of family members of the deceased, one in Coober Pedy and one in Port Augusta.
It also seems to have been the case that each defendant has been under significant pressure from members of their respective communities to ensure that the deceased is buried appropriately, particularly given the importance placed on the final resting place of the deceased in Aboriginal culture. This much has been made clear by what transpired in the weeks following the making of the two applications.
The Department, having received two conflicting applications, contacted both sides of the family to advise of the conflict and explain that a funeral could not take place until they had reached agreement as to a burial location. Attempts, over an extended period of time, were made to reach an agreement but without success.
On 17 January 2014, the Department received a letter purportedly signed by a large number of (at least 21) members of the deceased’s extended family in Coober Pedy. The letter expressed a desire for the burial to take place in Coober Pedy. However, the first defendant sent a signed letter to the Department on 6 February 2014 advising that she then consented to the burial of the deceased in Port Augusta. As a result, the second defendant’s application for funeral assistance was approved and authority was given for a funeral to take place in Port Augusta.
In order to facilitate this, on 10 February 2014, the deceased’s body was released by the Coroner to Fulham Funerals SA Pty Ltd, the undertaker contractually engaged by the Minister to perform funerals under the funeral assistance program. However, later that same day, the first defendant orally withdrew her permission to have the burial in Port Augusta and reiterated her desire to have the burial in Coober Pedy. The Department arranged for the undertaker to postpone the funeral arrangements.
Further attempts to mediate a resolution between the family members followed. These were unsuccessful and the Department filed a summons in this Court on 21 March 2014. However, attempts at resolution continued and another possible resolution of the dispute (in favour of Coober Pedy) was almost reached during late March, early April but this also, ultimately, failed to come to fruition.[8] As a consequence, the plaintiff filed an interlocutory application, on 16 April 2014, seeking a direction that the matter be called on as a matter of urgency.
[8] See the second affidavit of Christine Anne Moore sworn 17 April 2014.
A directions hearing took place on Wednesday 23 April 2014, with the first defendant appearing unrepresented and by telephone from the office of the Aboriginal Legal Rights Movement in Ceduna. The second defendant was represented. Notwithstanding the need for an early resolution of the matter, it was clear that the first defendant, who has difficulty with reading and writing, required an opportunity to obtain legal representation. The matter was adjourned for this to occur. Once representational issues were sorted out directions were made for the filing of affidavits.
Both defendants have now had the benefit of legal assistance in the preparation and presentation of their respective cases. It is my understanding that the assistance has been provided partly on a pro bono basis for which the Court is grateful.
The position of the plaintiff at all times has been to provide assistance with the factual background and the relevant legal principles without advocating either cause. The plaintiff will abide the orders of the Court.
It is regrettable, but has been unavoidable due to the prolonged disagreement between family members, that the deceased’s remains have been with the Coroner and with the designated funeral home for some months now. It is in the interests of all parties and necessary, in order to maintain the dignity of the deceased, that a swift resolution be reached by this Court.
Relevant legal principles
The received view at common law is that there is no property in a dead body; no person is entitled to ownership of a deceased’s remains.[9] It is usually accepted that, where a deceased has left a will, the executor of the estate has the right to arrange for the burial of the body, or where there is no named executor or no will, the person who is entitled to take out letters of administration of the estate with or without a will annexed has the right.[10] The common law position was summarised by Young J in the matter of Smith v Tamworth City Council:[11]
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, the person with the largest interest will normally be the person who is the one expected to bury the body.
[9] Jones v Dodd (1999) 73 SASR 328 at [27], Perry J citing Williams v Williams (1882) 20 Ch D 659, 665 and R v Sharpe (1885) 10 CB 776; 138 ER 307.
[10] Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 (Young J); Jones v Dodd (1999) 73 SASR 328 at [30].
[11] Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 (Young J).
In circumstances where a deceased has died intestate, as in this matter, there remains support for the notion that the person eligible to apply for a grant of letters of administration has the right of burial.[12] However, as noted in the judgment of Perry J (with whom Millhouse and Nyland JJ agreed) in Jones v Dodd,[13] such an approach is problematic in situations where it is highly unlikely that a grant will be sought.
Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality.[14]
[12] For example, Meier v Bell [1997] Supreme Court of Victoria (Unreported, Ashley J, 3 March 1997).
[13] (1999) 73 SASR 328.
[14] Jones v Dodd (1999) 73 SASR 328 at [50].
Rule 32.01 of the Probate Rules 2004 (SA) sets out the order of priority in seeking a grant of administration as follows:
(i)Where the spouse [or the domestic partner] of the Deceased has survived the Deceased for 28 days, the surviving spouse [or the domestic partner];
(ii)The children of the Deceased, or the issue of any such child who died before the Deceased;
(iii)The father or mother of the Deceased;
(iv)Brothers and sisters of the Deceased, or the issue of any Deceased brother or sister who died before the Deceased;
(v)Grandparents of the Deceased;
(vi)Uncles and aunts of the Deceased and the issue of any Deceased uncle or aunt who died before the deceased
According to Rule 3.01, “Domestic partner” means, for this purpose, “a person declared under the Family Relationships Act 1975 to have been a domestic partner of the deceased person as at the date of his or her death.”[15]
[15] Section 11A of the Family Relationships Act provides:
“11A—Domestic partners
A person is, on a certain date, the "domestic partner" of another person if he or she is, on that date, living with that person in a close personal relationship and—
(a)he or she—
(i) has so lived with that other person continuously for the period of 3 years immediately preceding that date; or
(ii) has during the period of 4 years immediately preceding that date so lived with that other person for periods aggregating not less than 3 years; or
(b)a child, of whom he or she and the other person are the parents, has been born (whether or not the child is still living at that date).”
If this approach were to apply, unalloyed, to the current matter and provided that the first defendant could substantiate her claim that she was the domestic partner of the deceased at the time of his death, she would have the primary claim to administration.
The case of Jones v Dodd[16] also involved a dispute between members of an Aboriginal family over the burial location of an intestate and impecunious deceased. The dispute was between the former de facto spouse of the deceased who had two children with the deceased and the deceased’s father.
[16] [1998] SASC 6769 (Debelle J) and (1999) 73 SASR 328 (FC).
At first instance, Debelle J held that, in the circumstances and according to the law as it then stood, the de facto spouse would have had no legal right to apply for letters of administration. His Honour thereupon resorted to an application of the common law “next of kin” approach. His Honour found on the law as it then stood that:
in the absence of a surviving husband or wife, the right to burial vests in the next of kin, in order of their relationship to the deceased, that is to say, children of full age, parents, brothers and sisters or more distant kin.
As the two children were not of full age, the father of the deceased was found by his Honour to have the right to the body for the purpose of conducting a burial.
Debelle J also placed some reliance on Aboriginal customary law, which according to his Honour gave rise to the same conclusion.
I am very conscious of the fact that it has been necessary to resort to principles of common law to resolve this difficult and sensitive dispute. In matters relating to burial, it is appropriate to have regard to Aboriginal law and custom. In that respect it is relevant to note the undisputed evidence that, as the plaintiff is the father of the deceased and head of the family, he is the person empowered to make decisions in respect of family issues of this kind. On this issue, the common law and Aboriginal customary law appear to coincide.[17]
[17] Jones v Dodd [1998] SASC 6769.

The matter went on appeal. Perry J delivered a judgment on behalf of the Court.[18] The appeal was unanimously dismissed. However, Perry J placed greater weight on practical considerations and elevated the importance of cultural and spiritual factors, as opposed to common law principles, to the determination of the issue.[19]
In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.
. . . .
In my opinion, proper respect and decency compel the courts to have some regard to…"spiritual or cultural values", even if the evidence as to the relevance of such considerations in a particular case may be conflicting.
This is not to say that the court should have regard to expressions of pure emotion or arbitrary expressions of preference.
At the end of the day, pragmatic features of the case, such as those which were regarded by Martin J as decisive in Calma v Sesar have their place. But despite the difficulty of doing so in cases where there are conflicts in the evidence and a limited opportunity to resolve the conflicts, the court must nonetheless proceed as best it can to pay due regard to whatever cultural or spiritual factors arise.
[18] Jones v Dodd (1999) 73 SASR 328 (Millhouse, Perry and Nyland JJ).
[19] Jones v Dodd (1999) 73 SASR 328 at [51]. [53]-[55].
His Honour also disagreed with Debelle J’s reliance on a kinship approach, and held that whilst common law principles concerning rights of administration offer a convenient approach in some cases, they are not capable of universal application as a rigid proposition or principle of law.[20] According to Perry J these common law principles are irrelevant to situations where no estate exists and a grant of administration is unlikely to be sought.[21]
In my opinion, Debelle J, with respect to him, erred in basing his conclusion on the approach which finds expression in the following passage from his judgment, to the exclusion of other relevant factors:
"In this case the children are aged 10 and 11 years respectively. They are not of full age, thus the next in degrees of kinship at common law as distinct from kinship in Aboriginal customary law, is the father of the deceased. He therefore has the right to the body for the purpose of conducting the burial. I will therefore make an order permitting the plaintiff to bury his deceased son." (emphasis added)
Although Debelle J later refers to what he describes as "the rules of Aboriginal customary law" and states that a similar conclusion would be reached by reference to those rules, it is clear that his decision is pivoted upon what he regards as an appropriate application of common law principles to the exclusion of considerations stemming from the deceased's aboriginality.
In any event, as I have explained, the common law principles, to the extent that they may be relevant, have regard to the extent of interest in the estate and eligibility to apply for a grant of letters of administration in intestacy, rather than on "kinship". But as I have explained, such so-called principles are no more than a convenient method of approach to some cases, rather than a hard and fast rule. Furthermore, that approach is irrelevant where there is no estate and no likelihood of a grant ever being applied for.
In all cases, consideration should be given to cultural, spiritual and religious factors, where such factors are present.[22]
[20] Jones v Dodd (1999) 73 SASR 328 at [37] and [46].
[21] Jones v Dodd (1999) 73 SASR 328 at [67].
[22] Jones v Dodd (1999) 73 SASR 328 at [65] to [68].
The tension between common law principles and Aboriginal culture in the context of a burial dispute arose for consideration in a subsequent matter of Dodd v Jones.[23] This dispute also involved a disagreement between the de facto partner and children of a deceased on the one hand, and the father of the deceased on the other. Doyle CJ identified the issue as follows:[24]
In the end, it seems to me that I am confronted with two fairly clear and opposing claims. One is the claim of a de facto spouse, which has some support by reference to common law principles, and also gets the support of community attitudes that are fairly widespread in Australian society. The other is the claim of the father, which is supported by genuinely held beliefs about Aboriginal custom and law, beliefs which should be respected as far as possible.
[23] Dodd v Jones [1999] SASC 458.
[24] Dodd v Jones [1999] SASC 458 at [29].
The former Chief Justice observed that the common law approach was the usual approach to be taken.[25] However, as recognised by Perry J in Jones v Dodd, it was not decisive of the issue.[26] His Honour also observed that it was impossible to weigh the competing claims and arrive at a truly legal judgment.[27] After considering all relevant factors, Doyle CJ found the de facto partner’s claim to be stronger than the claim of the father. Those factors included that the common law approach supported her claim but also included practical considerations such as her nine year relationship with the deceased and that the relationship had borne two children.
In the end, trying to crystallise things, it is the fact that the plaintiff gets some support from common law principles and the strength of her claim as a de facto spouse which entitled her to succeed. Although it is not the full picture, the fact is that the deceased had left his family and had gone to make his life and his home with the plaintiff, and her children, in Port Augusta. It is for those reasons that I find in favour of the plaintiff.[28]
[25] Dodd v Jones [1999] SASC 458 at [30].
[26] Dodd v Jones [1999] SASC 458 at [37].
[27] Dodd v Jones [1999] SASC 458 at [36].
[28] Dodd v Jones [1999] SASC 458 at [40].
The authorities decided in this State, considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded. This was the approach applied, more recently, by this Court in Minister for Families and Communities v Brown & Ors.[29]In that matter, Gray J considered not only which party had a stronger claim under common law, but also the “lifestyle, relationship and practices of the deceased”,[30] in reaching a conclusion as to burial rights.
[29] [2009] SASC 86.
[30] [2009] SASC 86 at [31].
The evidence
The evidence received by the Court was by way of affidavit only. There was no cross-examination of any of the deponents. The plaintiff read the following affidavits:
(i)affidavit of Christine Anne Moore (Manager, Concessions and Support Services, Department for Communities and Social Inclusion) sworn 21 March 2014;
(ii)second affidavit of Christine Anne Moore sworn 17 April 2014; and
(iii)third affidavit of Christine Anne Moore sworn 15 May 2014.
The following affidavits were read in the first defendant’s case:
(i)affidavit of Melissa Gail Smith (first defendant) affirmed 14 May 2014;
(ii)affidavit of Lulu Renee Boland (maternal aunt of the deceased) affirmed 1 May 2014;
(iii)affidavit of Jennifer O’toole (maternal aunt of the deceased) affirmed 1 May 2014; and
(iv)affidavit of Julie O’toole (maternal aunt of the deceased) affirmed 1 May 2014.
The following affidavits were read in the second defendant’s case:
(i)affidavit of Peter Wilton (second defendant) affirmed 27 April 2014;
(ii)affidavit of Katrina Marissa Wilton (mother of the first defendant) affirmed 9 May 2014;
(iii)affidavit of Bevan Wilton (maternal grandfather of the second defendant) affirmed 9 May 2014; and
(iv)affidavit of Leanne Wilton (maternal step-grandmother of the second defendant) affirmed 9 May 2014.
The Court also had available to it, in addition to the oral submissions made by counsel for each of the three parties, written submissions filed on behalf of each of the three parties.
Three close family members of the deceased did not provide an affidavit setting out their wishes (if any) or their understanding (if any) of the deceased’s wishes: the deceased’s father, Mr Simon Boland, who is alive and living in Coober Pedy; the deceased’s youngest living son, Norman, who is seven years old and lives in Ceduna with his mother the first defendant (although, I am content to infer that Norman’s position is aligned with that of the first defendant); and the deceased’s daughter, Victoria, who is a minor and the younger sister of the second defendant (although again, I am prepared to infer that her position is aligned with that of the second defendant and their mother, Katrina Wilton).
Significant aspects of the affidavit evidence were, of necessity, of a hearsay nature, in particular, assertions by various deponents as to what the deceased had told them about his attitude to Aboriginal culture and his attitude or desires concerning his own burial and the burial of other members of his family. I raised the matter with counsel. All were content for me to receive all affidavit material without objection and to give it such weight as, in the circumstances, it should properly bear.[31] There was no application by any counsel to cross-examine any deponent and I doubt very much whether I would have allowed any such application were it to have been made.[32]
[31] At least in a civil case, hearsay evidence having been received, unobjected to, may be used as “proof to the extent of whatever rational persuasive power it may have”, Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219; see also Technilock (Aust) Pty Ltd v Mondoquip Pty Ltd [1999] SASC 320.
[32] On this issue, I agree, with respect, with the observations of Debelle J in Jones v Dodd [1998] SASC 6769, Perry J in Jones v Dodd (1999) 73 SASR 328 and Doyle CJ in Dodd v Jones [1999] SASC 458 to the effect that the practicalities attendant on matters such as these mean that it will not be possible and often unnecessary to resolve every factual disagreement and extensive or perhaps any cross-examination is unlikely to be warranted.
I have already canvassed the approach to be adopted by a court in cases of this nature, as discussed in some of the authorities. However, and consistently with the expressions of principle in those authorities, it was common ground at the hearing that I should be cautious before making critical findings of fact and, indeed, given the very limited and untested evidence before the Court, it may well be that I would be unable to make findings of fact with respect to a number issues.
In summary, the first defendant’s case was that she had been in a relationship with the deceased since about 1999. The relationship had had its ups and downs. At one stage, the first defendant obtained a restraining order against the deceased after a particularly bad fight. However, she said that they had reconciled shortly after, had become very close to one another and had been talking about getting married.
The deceased’s maternal aunties, LuLu Boland, Jennifer O’toole and Julie O’toole, deposed to the deceased’s close relationship with his mother, who passed away in 2007. They deposed to a number of reasons why the extended family, on the deceased’s mother’s side, wanted the deceased buried near his mother in Coober Pedy in order to keep his spirit safe. Furthermore, according to the first defendant, the deceased had told her on a number of occasions that he wanted to be buried in Coober Pedy to be reunited with his mother who was buried there.
In summary, the second defendant’s case was, to the effect, that the deceased identified as a Dieri man, that Dieri culture required that he be buried with his father, that the deceased’s father wanted to be buried in Port Augusta, and that the deceased had intended to bury his father in Port Augusta. In addition, the second defendant pointed to the deceased’s wish, as expressed to various of the second defendant’s family members, to be buried in Port Augusta and next to his infant son, Alvin, who was buried there.
I now summarise the factual matters addressed in the affidavit evidence.
First defendant’s factual contentions as to the proper “connection” being with Coober Pedy
(i)The deceased grew up in Coober Pedy.
(ii)The deceased’s mother is buried in Coober Pedy.
(iii)The deceased’s father lives in Coober Pedy. The deceased’s father identifies as Dieri-Adnyamathanha but speaks Yankunytjatjara.
(iv)A number of maternal aunties together with a substantial number of extended family on the deceased’s mother’s side (including numerous cousins, aunties, uncles, nephews and nieces) live in Coober Pedy. Their traditional lands are to the north and north-west of Coober Pedy and include Mintabie and Ernabella.
(v)The deceased was brought up in the Antekarinya and Yankunytjatjara cultural traditions (on his mother’s side). For example, the deceased crawled and walked the country in Coober Pedy, Mintabie and Ernabella learning the ways of the Antekarinya and Yankunytjatjara culture.
(vi)The deceased was primarily raised by his mother and his “mother” aunties and had a poor relationship with his father, Simon Boland, who was not fond of the deceased.
(vii)The deceased’s maternal grandparents spent time with the deceased around the camp fire telling stories and involving him in their culture when they were living in Mintabie.
(viii)The deceased’s maternal grandmother is in aged care in Coober Pedy and the deceased’s paternal grandfather is also in aged care in Coober Pedy. Both these grandparents have signed Exhibit CM6 to the first affidavit of Christine Anne Moore, sworn 21 March 2014. Exhibit CM6, is a letter signed by 21 people said to be uncles, aunties, nieces, nephews and cousins of the deceased and expressing a desire for the burial to take place in Coober Pedy.
(ix)Both the deceased’s maternal grandmother and his paternal grandfather are recognised elders within their respective cultural groups.
(x)The deceased’s maternal grandfather is buried in Coober Pedy.
(xi)The deceased and Katrina Wilton had three children, being the second defendant, Peter Wilton,[33] Victoria[34] and Alvin (who died as a small child and is buried in Port Augusta). After the breakdown of that relationship Katrina Wilton moved from Coober Pedy to Port Augusta, taking with her the three children. Port Augusta is where Katrina Wilton’s extended family live.
[33] Also referred to as Peter Boland-Wilton.
[34] Melissa Smith in her affidavit has deposed to conversations with the deceased in which he doubted that Victoria was his child. However, Katrina Wilton in her affidavit categorically states that she had three children with the deceased including Victoria. This is not an issue I can finally resolve. On any analysis Victoria is to be regarded as part of the deceased’s family with Katrina Wilton in Port Augusta and with whom he had a strong connection.
(xii)At some time after breaking up with Katrina Wilton, the deceased met and became involved with the first defendant, Melissa Smith, with whom he had another child, Norman, now aged seven. Melissa Smith and Norman live in Ceduna.
(xiii)The deceased, in his adult years, pursued an itinerant existence, dividing his time between Ceduna, Port Augusta and Coober Pedy. He visited family and would spend up to two or three months at a time in each location.
(xiv)After the death of the deceased’s mother in 2007 in Coober Pedy, her sisters (the deceased’s aunties) became “significant mothers” of the deceased.
(xv)According to the three maternal aunties who have provided affidavits, the deceased became very depressed when his mother died in 2007. He missed her enormously. It is their view that the deceased would want to be buried near his mother.
(xvi)Buried in Coober Pedy are the deceased’s mother, his maternal grandfather, three maternal aunties and a younger sister of the deceased.
(xvii)According to the maternal aunties who have provided affidavits, it is of importance in their cultural tradition for the deceased to be buried next to his mother or sister. If he were to be buried away from Coober Pedy his spirit would be lost and forever looking for his mother.
(xviii)The deceased’s surviving brothers, sisters, numerous cousins, aunties, uncles, nephews and nieces, all live in Coober Pedy.
(xix)The first defendant, in her affidavit, gives some detail as to the nature of her relationship with the deceased and their shared living arrangements, notwithstanding that he travelled a lot from community to community. She maintains that they were very close to one another and that the whole town viewed them as a couple. He came home from Ceduna two weeks before he died and stayed with her.
(xx)The deceased told the first defendant on numerous occasions over the years that if he died he wanted to be buried in Coober Pedy to be reunited with his mother.
(xxi)A number of members of the deceased’s extended family in Coober Pedy are very old and would be unable to travel to Port Augusta to attend a funeral there.
Second defendant’s factual contentions as to the proper “connection” being with Port Augusta
(i)Alvin, the second defendant’s brother and the deceased’s son, is buried in Port Augusta. Alvin died many years ago when a very young child.
(ii)The second defendant heard the deceased tell the second defendant’s mother that if anything happened to him he wanted to come back to Port Augusta. His father also said, after Alvin had died, that he wanted to be buried next to Alvin.
(iii)The deceased is a Dieri man and Dieri culture (according to the second defendant) is that a man is to be buried with his father.
(iv)The second defendant “knows” that his grandfather (the deceased’s father in Coober Pedy) also wants to be buried in Port Augusta.
(v)The deceased told the second defendant that he intended to bury the second defendant’s grandfather (the deceased’s father) in Port Augusta.
(vi)According to the second defendant’s mother, Katrina Wilton, on the last occasion she saw the deceased alive, which was just before he travelled to Ceduna where he died, the deceased said that if anything happened he wanted to be buried with Alvin.
(vii)Katrina Wilton’s view, as expressed in her affidavit, is that the deceased belonged in Port Augusta and Coober Pedy but after his children were born he belonged in Port Augusta because that is where they are.
(viii)The deceased told Bevan Wilton (the second defendant’s maternal grandfather who lives in Port Augusta) that the deceased considered his home to be Coober Pedy because he spent his younger days there. However, Bevan Wilton’s view is that he was born in Port Augusta and he “raised” his children and lost a son in Port Augusta.
(ix)The deceased told Bevan Wilton that he was upset when his uncle was buried in Coober Pedy and not in Port Augusta. It is unclear from Bevan Wilton’s affidavit as to whether this was a paternal or maternal uncle.
(x)An aunty of the deceased, who died in 2013 while in Darwin, was buried in Port Augusta. Again, it is not made clear whether she was a paternal or maternal aunty.
(xi)The deceased told Bevan Wilton on a number of occasions that if something were to happen he wanted to be buried in Port Augusta next to Alvin. The last time he said this to Bevan Wilton was approximately two weeks before he died.
(xii)The deceased also told Bevan Wilton that he wanted to be buried with his father in Port Augusta.
(xiii)Simon Boland (the deceased’s father) told Leanne Wilton (the maternal step-grandmother of the second defendant) that he (I infer Simon Boland) wanted to be buried in Port Augusta.
(xiv)The deceased was a Dieri man but told Leanne Wilton that he did not have much of a cultural connection with the Dieri. He told Leanne Wilton that he did not look up to Aboriginal culture and did not like the cultural rules.
(xv)The deceased never told Leanne Wilton where he wanted to be buried but he did say he wanted to be close to his children.
Resolution

A decision has to be made. Before coming to the decision I have reached, I restate, as my own, the sentiments expressed by the former Chief Justice in Dodd v Jones.[35]
Sadly, the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weight the competing claims and arrive at what one would truly call a legal judgment. I understand and respect the wishes and beliefs of [the parties]. 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.
It seems to me that the resolution of this problem turns on four main considerations.
[35] [1999] SASC 458.
The first is the issue of who might be entitled to obtain letters of administration in the event that such an application were to be made. Such an enquiry, in the first instance, would focus on the nature of the first defendant’s relationship with the deceased at the time of death.[36] If the first defendant and the deceased were not living in a relationship when he died, regardless of whatever relationship they held previously, the basis for the first defendant’s claim to be entitled to letters of administration and therefore to have the right to determine burial location would be significantly compromised.
[36] Reid v Love & North Western Adelaide Health [2003] SASC 214 at [28].
The second defendant does not accept that the relationship between the deceased and the first defendant had the characteristics necessary to a domestic partnership or that it subsisted as at the time of death. Assertions have been made in the affidavit evidence, read in the second defendant’s case, in support of such a challenge.
If I were to seek to determine this question by looking at whether or not the statutory requirements for a domestic partnership were satisfied, I would not be in a position to do so. The evidence is of far too limited a nature and there has been no opportunity to have it tested. Even if I were to take a more flexible view as to what the first defendant would need to establish and to eschew reliance on “narrow, formal, pedantic or merely geographical criteria” and place greater weight on “the human reality of the personal, emotional and cultural complex” that may have existed between the first defendant and the deceased (an approach advocated by Cummins J in Dow v Margaret Anne Hoskings & Ors[37] in the statutory context within which his Honour was looking at a similar question) I would be no further advanced and for the same reasons.
[37] [2003] VSC 206.
In any event, even if I were to find that the first defendant and the deceased had been domestic partners at the time of death such that she may have had an entitlement to obtain letters of administration, I would not, in the circumstances of this case, find that to be a particularly cogent consideration. The first defendant lives in Ceduna. She has taken a position in the matter which, according to her, represents what she understands would have been the wishes of the deceased and of his wider family in Coober Pedy with whom it would seem she has some emotional connection. This is not a case where the first defendant, in the interests of herself and her son, Norman, has sought for the deceased to be buried in Ceduna so as to be closer to her and her son and so as to facilitate their capacity to mourn the deceased. Furthermore, and in fairness to the first defendant, her counsel during the hearing expressly gainsaid any reliance on the nature of the relationship between the first defendant and the deceased as, of itself, providing a basis for determining the overall dispute.
Staying with the question of who might be entitled to obtain letters of administration and in the absence of a finding that the first defendant had any such entitlement, the question of the deceased’s children needs to be considered. There are three living children. As already indicated, I have heard little about the circumstances of Victoria. However, I was informed from the bar table (without objection) that Victoria is a minor and that she lives with the second defendant and their mother in Port Augusta. I am prepared to infer that her position should be subsumed with that of the second defendant and their mother. Similarly, I have not heard anything directly from Norman who is only seven. However, I again infer that his position is to be subsumed with that of his mother, the first defendant.
In the problematic event, should an application be made, that letters of administration were to be granted to a child of the deceased who is a minor, it does seem to me that the most likely candidate to succeed with any such application would be the second defendant. He is almost of age in any event.
Nevertheless, I place little weight on this, essentially for the reasons given by Perry J in Jones v Dodd, as already discussed. The principle purpose behind the obtaining of letters of administration is to enable the estate of a deceased, the assets and liabilities, to be called in so that debts can be paid and any surplus distributed, in accordance with the lawful priorities. As such, the order of priority, generally observed when deciding who might be entitled to take out letters of administration, tends to mirror or reflect the order of those with the greatest entitlements to a surplus from the estate. Where there is no estate this rationale falls away; it does not necessarily follow (as the authorities discussed to this point have indicated) that the person who would have the right to take out letters of administration necessarily has the best claim to take possession of the body and determine the burial.
For these reasons, I place little weight on the formal nature of the relationships between the deceased and the first defendant and the deceased and the second defendant insofar as, on a closer analysis than I am in a position to make, either might be entitled to succeed with an application for letters of administration of the deceased’s estate.
The second fundamental consideration involves the Aboriginal cultural matters and concerns raised in the evidence. Unfortunately, and as is so often the case in matters of this nature, this evidence points in different directions. Again, I start with the proposition that there has been no opportunity to test the assertions made on each side about these matters. Having said that, I accept that the positions expressed by the various deponents, concerning their understanding of cultural matters and the importance of those cultural matters to both the deceased and to various other family members, are genuinely held.
However, where a person has descended from a number of cultural traditions, as is the case with the deceased, it can be difficult, perhaps impossible, to know which of these traditions should take priority and in what circumstances and, in particular, which aspects of each tradition might be regarded as of fundamental importance and which aspects might be amenable to compromise. It is simply not possible to explore any of these issues on the evidence available.
What is clear is that there are assertions concerning the deceased’s very strong connection with the cultural traditions observed and held dear by family members on the deceased mother’s side in Coober Pedy. If these cultural traditions were to be observed, the deceased would be buried in Coober Pedy. However, there is also evidence to the effect that the deceased is a Dieri man and that he wanted to be buried near his son, Alvin, in Port Augusta and that he wanted his father, a Dieri man, also to be buried in Port Augusta.
I accept that the evidence concerning the Coober Pedy cultural matters and their importance to the deceased’s maternal aunties and his wider family on his maternal side, is more fulsome and more detailed than is the evidence concerning any cultural connection with the area around Port Augusta and with a need to be buried in Port Augusta. I am satisfied that the deceased had a strong connection, as a child and as a young man, with his mother’s culture and with the traditional lands surrounding Coober Pedy, Ernabella and Mintabie. However, there is little, if any, evidence available, as to any particular connection with the lands around Port Augusta.
On the evidence available, untested as it is, and in the absence of other considerations, I would place greater weight on the deceased’s cultural connections relevant to Coober Pedy as compared with his cultural connections relevant to Port Augusta. However, any weight to be accorded cultural considerations must be tempered by the evidence (from Leanne Wilton) albeit hearsay, that the deceased himself said that he did not have much of a cultural connection with Dieri and that he did not look up to Aboriginal culture and did not like the cultural rules. Whilst this evidence is ambiguous it does suggest, if true, that the deceased was seeking to distance himself from all Aboriginal culture and rules. In this respect, there is no evidence from those who one would expect to know that the deceased observed any particular cultural practices or traditions: Dieri, Antekarinya, Yankunytjatjara or otherwise, as a mature adult as opposed to when a young person.
At the end of the day, the cultural considerations point more strongly (but not solely) to Coober Pedy. However, the weight I am prepared to give to this consideration is limited.
The third major consideration concerns the deceased’s own wishes. A person has no right to dictate what will happen to his or her body after death.[38] Nevertheless, the wishes of a deceased person, where they can be ascertained with some confidence, should be given significant weight in my view.[39] The difficulty here, again, is that evidence of the wishes of the deceased, as deposed to in the affidavit evidence, points in different directions. The true state of the deceased’s mind in this respect is not capable of determination. As Debelle J said in Jones v Dodd.[40]
[E]ven if time had permitted the testing of the evidence, this is the kind of dispute where it would be very difficult to resolve the conflict in the evidence. Ultimately, it might turn out to be one of those cases where a person has said different things to different people on different occasions or in different sets of circumstances.
[38] Jonesv Dodd [1999] SASC 6769: “In any event, the views of the deceased are not final. A person cannot by will dispose of his own body; Williams v Williams (1882) 20 Ch D 659 at 666. It follows the desires expressed by the deceased as to the place of burial are not conclusive.” (Debelle J); Smith v Tamworth City Council (1987) 41 NSWLR 680 at 694; Frith v Schubert & Anor [2010] QSC 444 at [57].
[39] See for example, Ugle v Bowra & O’Dea [2007] WASC 82 at [16] and Frith v Schubert & Anor [2010] QSC 444 at [57].
[40] [1998] SASC 6769.
In this respect, and human nature being what it is, I add that the very real possibility that the deceased, from time to time, might have told family members different things according to what they might have wanted to hear should not be overlooked. This is not the sort of topic where all persons would necessarily take the opportunity to confront a close family member with a truthful position. Furthermore, the possibility that the deceased himself might have had a confused position ought not be overlooked. It is understandable that the deceased, at certain times with certain people and in certain places, might have formed a view that he wanted to be buried with his forebears in the land of his mother’s people but might have taken a different view at a different time when reflecting on a deceased child having been buried in Port Augusta and on having two other children living in Port Augusta.
Leaving aside these considerations, the fact of the matter is that the evidence before the Court on this topic is conflicting. On the one hand, the deceased is reported as having told the first defendant that he would wish to be buried in Coober Pedy whereas, he is reported as having told the second defendant, his mother and the second defendant’s grandparents that he would wish to be buried in Port Augusta with or near his infant son, Alvin.
I recognise that on this topic, the first defendant might be seen as having the capacity to be more objective. She lives in Ceduna and would seem to have no personal investment (apart from her connection with the Coober Pedy family and her desire to implement what she understood to be the deceased’s wishes) in whether the deceased were to be buried in Port Augusta or Coober Pedy. Nevertheless, for the reasons set out, I am unable to determine with confidence what were the deceased’s wishes as to his place of burial and, as a consequence, I can only place limited weight on this consideration. I am unable to find that burial at either Port Augusta or Coober Pedy would necessarily be contrary to the deceased’s wishes.
The fourth main consideration is the wishes and sensitivities of the living close relatives. Whilst I confine this consideration to the living close relatives it must be viewed in the context of the fact that the deceased’s young child, Alvin, is buried in Port Augusta.
I turn first to consider the position of the children. The deceased has two children, the second defendant and Victoria who live with their mother in Port Augusta. It is the desire of the second defendant that his father be buried in Port Augusta near to the second defendant’s brother, Alvin. It is the desire of the second defendant that what he perceives to be his father’s wish in this respect be honoured. The distinction I draw here is between the possibility that this was the genuine position of the deceased (as to which I place little weight for the reasons already given) and the fact that this is the second defendant’s genuine belief about what the deceased wanted and the importance to the second defendant of honouring that position.
I also recognise that the second defendant is still very young and that he has lost his father who also was very young (in his late 30s). I accept that the second defendant would have a strong need for his immediate family to be together even in death and that it is of real importance to him, personally and independently of cultural traditions, that his father be buried in Port Augusta near the second defendant’s brother, Alvin. For reasons already given I am prepared to infer that the position of Victoria should be regarded broadly in the same light.
Norman is still only seven and lives in Ceduna. For reasons already given I am prepared to infer that his position should be considered as aligned with that of his mother. However, in a sense, this is only a formal position in that the first defendant seeks to advocate on behalf of the cultural traditions of the Coober Pedy family and what she genuinely perceives to have been the deceased’s wishes. Further, unless the deceased were to be buried in Ceduna, which is not an available option, Norman’s personal situation would not be significantly advanced by having a burial in either Port Augusta or Coober Pedy. If anything, it probably would be easier, in a practical sense, for Norman to visit and pay his respects at his father’s grave in Port Augusta rather than in Coober Pedy.
It follows, that a consideration of what I believe to be in the best interests of the living children of the deceased would tend to support a decision that the deceased be buried in Port Augusta.
As against this there are the wishes and sensitivities of the other living relatives in Coober Pedy to consider. There are many of these. The number of direct relatives who live in and support burial in Coober Pedy far outnumber those who live in and support burial in Port Augusta (according to the evidence before the Court). In this respect, I observe that Katrina Wilton, Bevan Wilton and Leanne Wilton are not part of the deceased’s extended family although they are of course very important to and part of the second defendant and Victoria’s family. Their evidence is important but not insofar as it may demonstrate or suggest any wish or desire on their part.
As far as the extended Coober Pedy family is concerned, the closer (in terms of consanguinity) members are the deceased’s maternal aunties and the grandparents. The grandparents must be very old and the generation comprising the maternal aunties must also be elderly and significantly older than the deceased’s children. These relatives, close to the deceased in terms of consanguinity, have a strong desire for the deceased to be buried in Coober Pedy not just as a result of their understanding of their cultural imperatives but also because of the close relationship that they had with the deceased. Their wishes must be accorded significant weight. I place less weight on the wishes of the wider extended family such as, the cousins and nephews; it would not be right to prefer their wishes over those of the deceased’s children.
Ultimately, in my view, the interests of the deceased’s children should be accorded a greater weight than the interests of the Coober Pedy extended family even those of the maternal aunties. The nature and closeness of the respective relationships (children as against extended family) supports this. In addition, and in the ordinary course of events, it is to be expected that the burial place of the deceased will be of significance to the second defendant and his siblings for many years and for much longer than it will be of significance to the deceased’s very elderly grandparents and his maternal aunties in Coober Pedy.
Conclusion
None of the matters I have discussed point clearly and decisively in the one direction. However, given the limited weight that I am able to give to the first three of the four main considerations discussed above, it seems to me that the fourth factor does assume the greatest significance.
In my view, the wishes of the second defendant should be preferred over those of the Coober Pedy extended family. I have weighed in the balance, as best I can, all of the evidence before me and have reduced it to the four main considerations addressed above to which I have paid particular attention. In my view, the Court should take an approach that best serves the interests of all three surviving children and in the knowledge that the deceased’s young son, Alvin, is buried in Port Augusta. I am satisfied that it cannot be said that this is necessarily inconsistent with the wishes of the deceased, nor that there is a contrary cultural imperative so clear and so strong that it should overwhelm this consideration. Subject to hearing from the parties as to their form, I propose to make the following orders and declaration.
(i)The place of burial for the deceased, Raymond William Boland, who is reported to have died on 3 December 2013 is to be Port Augusta.
(ii)Subject to any contractual rights and obligations enjoyed and to be observed by the undertaker, Fulham Funerals SA Pty Ltd and the Department of Communities and Social Inclusion, the Department is to request the undertaker to bury the deceased in a manner that observes, insofar as is practicable, the wishes of the second defendant, Peter Boland-Wilton.
(iii)I declare that the undertaker is, subject to orders (i) and (ii) above, entitled to receive and to act upon the directions of the Department with respect to a burial of the deceased.
(iv)At least three days notice of the funeral is to be given in the Advertiser, a local paper servicing Port Augusta, a local paper servicing Coober Pedy and to the solicitors for the first defendant providing sufficient detail of the funeral arrangements so that family members might be able to attend.
(v)There is no order as to the costs of these proceedings.

I will hear the parties further as to any other orders that may need to be made. I will also hear the parties further as to what steps might be put in place, if any, to delay the funeral so as to enable a short period of time within which the first defendant can consider these reasons and, if so advised, lodge an appeal.