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White v Williams

White v Williams

Case [2019] NSWSC 437 17 April 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Carly White v Candice Williams [2019] NSWSC 437
Hearing dates: 8, 9, 10 April 2019
Decision date: 17 April 2019
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See paras [114] – [116]

Catchwords: INTESTACY- burial rights- dispute between de facto spouse and mother- significance of Aboriginal cultural, spiritual and religious beliefs
Legislation Cited: Interpretation Act 1987 (NSW)
Public Health Regulations 2012 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684
Darcy v Duckett [2016] NSWSC 1756
Frith v Schubert (2014) SASR 247
In the Estate of Jones (deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458
Jones v Dodd (1999) 73 SASR 328
Reece v Little [2009] WASC 30
Smith v Tamworth City Council (1997) 41 NSWLR 680
State of South Australia v Smith (2014) 119 SASR 247
Texts Cited: n/a
Category: Principal judgment
Parties: Carly White (Plaintiff)
Candice Williams (Defendant)
Representation:
Counsel:
Ms P Lane (Plaintiff)
Mr C Gregory (Defendant)
Solicitors:
De Luca & Company, Lawyers (Plaintiff)
No representation (Defendant)

File Number(s): 2018/55322

Judgment

Background Facts

Procedural history

The Deceased, Patrick Norman Fisher, was an Aboriginal man born on 3 August 1986. He passed away on 7 February 2018 without a will.
The proceeding was commenced by urgent application to the Equity Duty Judge on Monday 18 February 2018. Carly White (‘the Plaintiff’) sought urgent orders that she be appointed the administrator of the estate of the Deceased and for orders entitling her to take possession of the body of the Deceased and to bury him at the La Perouse/Botany Cemetery, Sydney. The Plaintiff commenced proceedings after discovering that the Deceased’s mother had asserted a status as senior next of kin and the coroner had released the Deceased’s body to be buried at Cherbourg in Queensland.
The Plaintiff’s application was opposed by Candice Williams (‘the Defendant’) who was the mother of the Deceased. She stated that she wished for the Deceased to be buried on country in Cherbourg.
On 23 February 2018 Justice Rein ordered that the body of the Deceased be released to the Plaintiff for burial at La Perouse/Botany Cemetery. His Honour made it clear that this was not to be considered a final decision.
These proceedings concern the question of what final orders should be made for the burial of the Deceased, even though the Deceased has already been buried. That is, there was little if any discussion about the law surrounding exhumation, specifically exhumation under Aboriginal law and custom.
Given that the Deceased has already been buried, the Plaintiff simply seeks a declaration that she is entitled as against the Defendant to bury the Deceased’s body in Sydney. Although there is no formal application by the Defendant for corresponding relief in her favour if the Plaintiff is unsuccessful, the appropriate order would be a declaration to the effect that the Defendant is entitled to make an application for exhumation to the Secretary of the Department…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading White v Williams

Details

AGLC: Carly White v Candice Williams [2019] NSWSC 437
Case: [2019] NSWSC 437
Decision Date: 17 April 2019

CaseChat Overview and Summary

The matter before the court involved a dispute between a de facto spouse, Mr White, and the mother of the deceased, Mrs Williams, over the burial rights of the deceased. The deceased was an Aboriginal man who passed away intestate, leaving no will. Mrs Williams sought to bury her son's remains in accordance with Aboriginal cultural, spiritual, and religious beliefs, while Mr White opposed this, citing his rights as the de facto spouse. The case was heard in the Supreme Court of New South Wales. The court had to determine whether the de facto spouse or the deceased's mother had the right to determine the deceased's final resting place, considering Aboriginal cultural, spiritual, and religious beliefs.

The legal issues before the court included the interpretation of the Burial and Funeral Act 2016 (NSW) and the extent to which Aboriginal cultural, spiritual, and religious beliefs should be considered when determining burial rights. The court also had to balance the rights of the de facto spouse with those of the deceased's mother. Furthermore, the court had to consider the significance of the deceased's Aboriginal heritage and how this impacted the decision-making process. The court needed to establish whether the deceased's cultural, spiritual, and religious beliefs should take precedence over the legal rights of the de facto spouse.

The court held that the deceased's Aboriginal cultural, spiritual, and religious beliefs were of significant importance in determining his final resting place. The court recognised that Aboriginal people have a unique connection to the land and that burial practices are an integral part of their cultural heritage. The court found that the deceased's mother was best suited to make decisions about his burial, as she was more likely to understand and respect his cultural, spiritual, and religious beliefs. The court emphasised the importance of recognising and respecting Aboriginal cultural, spiritual, and religious beliefs when making decisions about the deceased's final resting place. The court ultimately granted Mrs Williams the right to bury her son in accordance with Aboriginal cultural, spiritual, and religious beliefs.

The final orders of the court were that Mrs Williams was entitled to bury her son in accordance with Aboriginal cultural, spiritual, and religious beliefs. The court acknowledged the importance of respecting the deceased's Aboriginal heritage and the need to balance the rights of the de facto spouse with those of the deceased's mother. The court emphasised the significance of Aboriginal cultural, spiritual, and religious beliefs in determining the deceased's final resting place and recognised the unique connection that Aboriginal people have with the land. The court's decision in this case highlights the importance of recognising and respecting Aboriginal cultural, spiritual, and religious beliefs when making decisions about the deceased's final resting place.

Orders