Witehira v Ram - [2020] NZHC 2326

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1452

[2020] NZHC 2326

UNDER the Administration Act 1969

IN THE MATTER

of an application for interim injunction

BETWEEN

FREDA ELLEN WITEHIRA

Applicant

AND

LYNNE RAM

Respondent

Hearing: 3, 8 September 2020 (by telephone)

Counsel:

Q Duff for Applicant

S Foliaki for Respondent

Judgment:

8 September 2020

JUDGMENT OF VENNING J

This judgment was delivered by me on 8 September 2020 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Mātai Chambers, Auckland
Community Law South, Auckland

Counsel: Q Duff, Auckland

WITEHIRA v RAM [2020] NZHC 2326 [8 September 2020]

[1] Tura-Maria Witehira died on 23 August 2020. She was 16 years old. Unfortunately her family members are unable to agree on how her body is to be dealt with.

[2] Tura-Maria’s birth mother, Freda Ellen Witehira, applies for the following orders:

(a)an interim injunction preventing disposal of Tura-Maria’s body until
further order of the Court;

(b)appointing a neutral administrator of her estate for the purposes of:

[i]consulting with the parties in an effort to reach agreement on the manner in which the body is to be disposed; and

[ii]if no agreement can be reached to make a decision on the manner in which the body is to be disposed of having due regard for the views of all immediate family members and to the relevant cultural or religious precepts that apply.

[3] The application was made without notice but was served on Tura-Maria’s grandmother, Lynne Ram, who has had care of Tura-Maria for years, on a Pickwick basis.

[4] The Court convened a telephone conference on 3 September 2020. Ms Ram and her son and daughter attended. I repeat the following paragraphs from that minute which the Court issued following the conference. The minute set out the background to the matters discussed at that conference.

[2] Tura-Maria died on 26 August 2020 shortly before her 16^th birthday.¹ Freda is her birth mother. Lynne Ram is Tura-Maria’s paternal grandmother. Lynne and her whanau wish to cremate Tura-Maria’s body. Freda wishes for Tura-Maria’s body to be buried in Kaikohe.

1 That was incorrect. It was based on Freda’s evidence that Tura-Maria was born on 10 September 2004, and had died on 26 August, but Tura-Maria actually turned 16 on 10 July 2020 and died on 23 August 2020.

[3] The Court convened a teleconference. Mr Duff attended the conference on behalf of Freda. Freda is presently an inmate at Auckland Women’s Regional Corrections Facility facing a charge of murder. Her trial is scheduled for November this year.

[4] Lynne attended the teleconference in person supported by her daughter and son. During the course of the conference Lynne’s family confirmed that Tura-Maria has been in the primary care of Lynne since she was approximately 18 months old. There is a shared guardianship arrangement between Lynne and Tura-Maria’s birth parents. Tura-Maria had minimal contact with…

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 Witehira v Ram

Details

AGLC: Witehira v Ram [2020] NZHC 2326
Case: [2020] NZHC 2326
Decision Date: 8 September 2020

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether an interim injunction should be granted to Freda Ellen Witehira, the birth mother of Tura-Maria Witehira, to prevent the disposal of Tura-Maria's body. Tura-Maria died on 23 August 2020 and her family members could not agree on how her body should be dealt with. Freda sought an injunction to prevent the disposal of Tura-Maria's body and the appointment of a neutral administrator to consult with the parties and reach an agreement on the manner in which the body should be disposed of. The application was opposed by Tura-Maria's grandmother, Lynne Ram, who had cared for Tura-Maria since she was 18 months old.

The court had to decide whether Freda could establish a serious question to be tried, the balance of convenience, and an assessment of the overall justice of the position. The court found that Freda could establish a serious question to be tried as she was a party who was prima facie entitled to apply for letters of administration. However, the court found that the balance of convenience did not favour the injunctive and other orders sought by Freda. The court found that cremation was the appropriate means of disposal of Tura-Maria's body as it would respect her wishes. The court also found that an assessment of the overall justice on the facts of this case supported the conclusion that Tura-Maria's body should be cremated and dealt with according to her wishes.

The application for injunction and associated orders was dismissed. The court found that while there were no letters of administration, Tura-Maria's body would be disposed of by Lynne and her whanau who presently had physical custody and responsibility for her body, in accordance with Tura-Maria's wishes. The court also noted that Lynne and her whanau had agreed to provide Freda with a lock of Tura-Maria's hair and other matters. There was no order for costs.

Orders