Dayman v Dayman

HIS HONOUR: Mark Twain notably said that “nothing that grieves us can be called little”: John S Tuckey (ed), Mark Twain’s “Which Was the Dream?” and Other Symbolic Writings of the Later Years (1966, University of California Press) at 46. Those words are apt to bear in mind in dealing with the circumstances of this case.

The disposal of human remains is a critical yet sensitive issue which often arises in acute circumstances. It should be dealt with compassionately, having regard to the dignity of the memory of the deceased, the feelings of the deceased’s family, relatives and acquaintances and, in the case of dispute, according to law.

On 12 May 2024, Brian Keith Dayman (the deceased) passed away. Sadly, his passing has led to some dispute within his family and those close to him regarding the disposal of his mortal remains.

The plaintiff is the deceased’s daughter. She was born in 1980 and is currently aged 43. The defendant is the plaintiff’s mother and was married to the deceased in 1978. The deceased had another child, the plaintiff’s older brother, Michael, who died 15 years ago. The deceased and the defendant separated in around 2004. The deceased commenced a relationship with Cheryl Brown (Ms Brown) at about that time, which subsisted for a lengthy period but, on one view, ended sometime prior to the deceased’s death. The deceased was also survived by siblings, the oldest of whom is Susan. His other siblings are Julie, Bronwyn, Terry and Scott.

The application before the Court, at least formally, is the plaintiff’s statement of claim filed on 20 June 2024. The relief set out in the plaintiff’s statement of claim essentially falls into two categories:

This matter has been mentioned before the Court on five occasions, being 20, 21 and 24 June 2024 and 1 and 5 July 2024. Only the plaintiff appeared on the first two occasions. Upon becoming aware of the proceedings, the defendant appeared on the last three occasions, in addition to the plaintiff.

With each mention a degree more information has come to light or been revealed as to the matters to which the parties are at issue.

Significantly, it was not until after the second listing that the Court became aware that the deceased’s body had in fact been cremated barely hours before the initial listing, and that some form of funeral or memorial service had occurred on the day of the second listing.

Neither of the parties have been legally represented at the listings and one of the tasks of the Court, at least initially, has been to identify and to some extent refine the real issues between the parties.

It is evident from what has been noted above that the claim for cremation and memorial relief had been overtaken by events.

Nonetheless, it became clear by the fourth listing that the plaintiff sought other particular information in relation to the circumstances of the cremation and memorial.

In circumstances in which neither of the parties were legally represented and the plaintiff is estranged from the defendant, I sought on the third and fourth listings to attempt to record what appeared to be willing concessions made on the part of the defendant to provide to the plaintiff her share of the ashes and certain information regarding the cremation and memorial.

In many cases that come before the Court dealing with the disposal of bodies, one or more of the parties claim to have a statutory or presumptive legal right or entitlement to custody of the deceased’s body for its carriage to burial or cremation or, in the case of cremation, to custody of the deceased’s ashes.

It seems that it is not uncommon for people to claim that a designation of them by the coroner as “senior next of kin” gives them broad rights in respect of such matters.

It became obvious from the way in which the case was initiated that there was some confusion, or perhaps lack of understanding, on the part of the plaintiff as to the role of the coroner in recognising a “senior next of kin” and what, if anything, such a nomination (if made) permitted or entitled her to do. Similarly, the plaintiff was (understandably) not fully conversant as to the role of this Court in making orders to facilitate a dignified and appropriate arrangement for the disposition of a deceased person’s remains.

It is unsurprising for there to be a degree of miscommunication and misunderstanding between family members and other interested parties immediately following a person’s death: e.g. Charafeddine v Magistrate R Denes sitting in the Coronial Jurisdiction at Ballina [2015] NSWSC 269 (Charafeddine) at [18] per Slattery J.

Judges are mindful of such matters and astute to the importance of assessing and determining burial disputes in a context in which the parties’ actions have often been taken in heartbreaking or anguished circumstances.

As will be seen from an outline of the essential facts below, including the progression of the matter to this point through a number of court listings, a solution has been able to be reached by consent between the parties at least in relation to the distribution of the deceased’s ashes.

To illuminate how disputes involving the disposal of a deceased’s remains are addressed, I will set out an outline of the applicable legal principles. Hopefully, this will assist the parties and may also provide benefit to others in future matters.

After addressing those principles, I will then record the factual background and details of the recent listings, including my attempts to distil a solution between the parties from the information that they had provided to the Court and their confirmation of the solution.

Applications dealing with issues of custody of a deceased’s body for the purposes of burial or cremation, the distribution of ashes or other associated issues will often come before the Court in urgent circumstances.

In New South Wales, the law in respect of such matters is derived from a number of sources.

There is a broad array of statutory provisions that may in any given circumstance impact upon the authority given to persons to dispose of human remains. The main statutory provisions are found in the Coroners Act 2009 (NSW) (Coroners Act), the Cemeteries and Crematoria Act 2013 (NSW), the Funeral Funds Act 1979 (NSW), the Anatomy Act 1977 (NSW), the Human Tissue Act 1983 (NSW) and the regulations made under various Acts, including importantly Pt 8 of the Public Health Regulation 2022 (NSW) [1] (PHR).

This Court also has “inherent” jurisdiction, without a grant of probate or administration, to make orders governing the disposal of a dead body. Of course, Parliament may enact legislation which impacts upon that jurisdiction. However, the jurisdiction of this Court ought not to be considered ousted by legislation unless there is a clearly indicated legislative mandate to do so.

Further, whilst there are some provisions of the Coroners Act which in any given case may impact upon the jurisdiction governing the custody and release of a deceased’s body, there is no suggestion that the Coroners Act ousts, in any general way, the inherent jurisdiction of the Supreme Court to deal with the burial of a deceased person.

Given the various sources of law, it may not be straightforward for laypersons to understand or conceptualise how all of the various potentially applicable legislative provisions interact with one another, as well as with the general law.

An obvious issue which may arise in any given case is whether the deceased should be buried or cremated. If the deceased is to be buried, questions may arise as to the location of the burial, access to the burial site, funding and payment for the burial and whether there should be any headstone or memorial. In relation to cremation, questions may arise as to whether the deceased’s ashes should be distributed in a particular way or in particular proportions, and potentially how the ashes should be contained.

Other issues may arise where the deceased had expressed some wish for the use of his or her body for anatomical purposes or of any body organs for transplantation or other medical or scientific research purposes.

In light of the extensive statutory provisions and general law which bear upon this area, the precise nature and extent of the authority of a person to arrange for the disposal of a deceased body, as well as any cognate issues which may arise, will necessarily be fact and issue specific.

To give some conception of the different types of issues that may arise to be dealt with by this Court, a survey of cases dealing with burial over the last decade or so reveals that previous applications have raised the following issues:

Clearly, in each case, it is important to define with precision the particular issue that is in dispute. For example, there are important differences between rights of burial and rights arising from or in respect of a burial licence: e.g. Vosnakis v Arfaras [2015] NSWSC 625; Arfaras v Vosnakis [2016] NSWCA 65; (2016) 14 ASTLR 397.

“Burial” is not a term that appears in the Coroners Act.

Other legislative provisions contain certain definitions of “bodily remains”, “cremation”, “natural burial” and “private burial”, as noted by Sackar J in Milson v Milson at [27]-[30], referencing the provisions of the Cemeteries and Crematoria Act 2013 (NSW):

In the case of an indigenous person, “buried” could be used to mean to bury a body or to bury ashes: Milson v Milson at [31].

Different terminology is used within the Coroners Act to describe different types of investigations. The noun “inquest” is used in respect of an investigation concerning the death or suspected death of a person: s 4 Coroners Act. The noun “inquiry” [2] is used in respect of an investigation concerning a fire or explosion: s 4 Coroners Act.

In the vast majority of deaths, arrangements for the initial handling and dignified disposal of a deceased person’s body are made without the involvement of a coroner or the Court. Rather, they are made by family members contacting a funeral director or operator who attends to the collection, transport and holding of the body. The funeral director then arranges or facilitates the burial or cremation of the body with or without a funeral or memorial service.

Many funeral directors and staff often assist families expeditiously and seamlessly in a manner that belies the detailed regulation governing the disposal of human bodies.

The proper formality with which funeral directors are expected to act and the procedures which they undertake is, unsurprisingly, underpinned by comprehensive provisions for the handling, transport, holding and viewing of bodies, which are principally set out in Divs 1 and 2 of Pt 8 of the PHR. This is reflective, to some degree, of the gravity of the subject. Specific regulations cover the burial of bodies (e.g. regs 90, 92, 93 PHR) and the cremation of bodies (regs 98-110 PHR).

In the tragic number of cases in which the circumstances of a person’s death give rise to it being considered a “reportable death”, the jurisdiction of the coroner is engaged.

It is important to view that jurisdiction in its proper context.

For the purposes of the Coroners Act, a death that occurs in a number of specified circumstances, including a violent or unnatural death, a sudden death the cause of which is unknown or a death under suspicious or unusual circumstances, is specified as being a “reportable death”: s 6(1) Coroners Act. Any person who has reasonable grounds to believe that a death or suspected death of another person is a reportable death must report the death or suspected death to a police officer, a coroner or an assistant coroner as soon as possible after becoming aware of such grounds: ss 35(1)-(2) Coroners Act. A medical practitioner must not certify the cause of death of a person if the death is a reportable death or otherwise would be examinable under the Coroners Act, subject to a number of specific exceptions: s 38 Coroners Act.

The coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the death is a reportable death or a medical practitioner has not given a certificate as to the cause of death: s 21(1) Coroners Act.

However, exclusive jurisdiction is conferred on any coroner who holds office as the State Coroner or a Deputy State Coroner to hold an inquest concerning a death or suspected death in the circumstances identified in Div 2 of Pt 3.2: s 22 Coroners Act.

The coroner has the right to take possession of and retain the remains of a deceased person whenever the coroner has jurisdiction to hold or is holding an inquest concerning the death or suspected death of the person: s 56(1) Coroners Act.

In this respect, the right of the coroner has priority over any other right to possession of the remains of the person, but otherwise does not affect any other such right: s 56(2) Coroners Act.

Further, the coroner may dispense with an inquest unless an inquest is required to be held under Pt 3.2: s 25(1) Coroners Act.

Relevantly, one of the objects of the Coroners Act is to prohibit the disposal of human remains without appropriate authority: s 3(g) Coroners Act.

A person must not bury or cremate human remains unless the person has been given, or has in his or her possession, an appropriate disposal authorisation for disposal of the remains, or the disposal is otherwise authorised by regulations under the Coroners Act: s 100(1) Coroners Act. An appropriate disposal authorisation (other than in the case of a stillborn child) is a notice given by a medical practitioner for the purposes of s 39 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act) relating to the deceased person, an order made by the coroner under s 101 of the Coroners Act authorising the disposal of the remains, or a certificate issued under s 51 of the BDMR Act that relates to the deceased person: s 100(3)(a) Coroners Act.

The coroner may, by order in writing, authorise the disposal of human remains: s 101(1) Coroners Act. The order may be made by the coroner who is holding, has held or is intending to hold an inquest in respect of the death, or has dispensed with the holding of an inquest in respect of the death: s 101(2) Coroners Act.

Section 6A of the Coroners Act gives a number of cascading designations of a person as the “senior next of kin” (for the purposes of the Coroners Act), commencing with the deceased’s spouse then, in the absence of a spouse, the deceased’s adult children and so forth.

For the purposes of the Coroners Act, “spouse” means the person to whom the deceased was legally married or a de facto partner: s 4 Coroners Act. When there is more than one person who would so qualify as a spouse, the definition fixes upon only the last person so to qualify. “De facto partner” is defined by reference to s 21C of the Interpretation Act 1987 (NSW).

For legal purposes, an autopsy is more specifically known as a “post mortem” in New South Wales. There are essentially three types of post mortem: s 89(1)(a)-(c) Coroners Act. A coroner may direct that an “appropriate medical investigator” conduct:

For the purposes of a post mortem investigation direction, an “appropriate medical investigator” is any of: (a) a Coronial Medical Officer; (b) a pathologist; or (c) any other person that the coroner considers has appropriate qualifications to conduct (or has the capacity to arrange for another appropriately qualified person to conduct) the examination, test or review specified in the direction: s 89(3) Coroners Act.

Such pathologists are often called or referred to as a “forensic pathologist”.

Once a post mortem examination or other test is complete, or the coroner has dispensed with a post mortem examination, the coroner will make an order under s 101 authorising the disposal of the human remains. Disposal without such an order is an offence under s 100: John Abernethy et al, Waller’s Coronial Law and Practice in New South Wales (4th ed, 2010, LexisNexis Butterworths) (Waller) at 257 [101.1].

Usually, where there is no dispute about the matter, the coroner will release the deceased’s body to a funeral director who has been instructed by the family members of the deceased (or presumably to the senior next of kin or other person recognised by the coroner as having appropriate authority): Waller at 68 [I.299].

In cases where there is a dispute between family members as to where, how or by whom the deceased’s remains should be disposed (whether by burial or cremation), there is no provision in the Coroners Act or any other legislation for resolution of such a dispute: Waller at 68 [I.301].

In other States, there is authority to the effect that the coroner’s power to make an order for the disposal of human remains carries with it an implied power to decide such disputes: Waller at 70 [I.308]-[I.309], citing Gilliott v Woodlands [2006] VSCA 46 (Gilliott) at [20] and Ugle v Bowra & O’Dea [2007] WASC 82 (Ugle). In Gilliott, Maxwell P and Charles JA characterised that implied power at [20] by reference to the Victorian equivalent of s 101(1) of the Coroners Act, which required the coroner to issue “as soon as reasonably possible” a certificate permitting a certain form of disposal (footnotes omitted):

In Ugle, McKechnie J noted that the Court has inherent jurisdiction to deal with such disputes and was of the view that the coroner’s decision in making a disposal order did not in oust the Court’s jurisdiction: Ugle at [18]-[22]. His Honour further noted that obiter dicta in Gilliott doubted whether the Court retains jurisdiction to deal with such disputes. In any event, his Honour noted that, on grounds of public policy, the coroner is the officer principally entrusted with such decisions and a decision made by a coroner should not be lightly set aside: Ugle at [22].

As such, the coroner may wait for the dispute to be resolved between the family, or by this Court, or (at least on one view) the coroner may make his or her own decision: Waller at 68 [I.300].

In New South Wales, the “duty” referred to in Gilliott to issue a disposal certificate “as soon as reasonably possible” does not appear in the Coroners Act, as s 101 simply provides that the coroner “may” authorise the disposal of human remains: Waller at 70 [I.310].

The learned authors of Waller expressed the view that, regardless of the existence or otherwise of an implied power to do so, it is probably not advisable for the coroner to make a final determination as to who is entitled to take possession of the remains in circumstances where competing claims are made: Waller at 70-71 [I.310]. Their reasoning was as follows:

In practice, a coroner may (and often does) encourage the parties to resolve the dispute without resort to litigation, or may even attempt mediation between the parties either directly or indirectly. In New South Wales, experienced counsellors and mediation officers are employed by the Coronial Information and Support Program [3] (CISP) and can often provide great assistance in these matters: Waller at 70 [I.307].

Prima facie, the definition of “senior next of kin” may be of assistance to the coroner (or the Court) in determining the comparative claims of various relatives. However, it can often be the case that the claims are made by competing but “equivalent” next of kin: Waller at 68 [I.301].

Sadly, there are a number of cases in which the estranged parents of a deceased are unable to agree on the question as to whom carriage of disposal of the deceased’s body is to be committed.

In such circumstances, the determination of who should have carriage of disposal of the deceased’s remains, and other cognate issues regarding where and how the remains should be disposed of, will be informed by the general law position and any applicable legislation: see e.g. Waller at 68-69 [I.301]-[I.304].

If none of the disputing parties make an application to the Supreme Court, it may be appropriate for the coroner to approach the Supreme Court for a declaration in interpleader proceedings: Waller at 71 [I.310].

It is obvious from the above that, whilst the coroner has certain powers to authorise the disposal of human remains, there are cases in which the coroner may not seek to exercise the authority or determine issues about funeral arrangements. Rather, the coroner may encourage the parties who seek to have some input on the matter to correspond with the senior next of kin or, in the case of ultimate dispute, direct the parties for the matter to be dealt with by a higher court, specifically the Supreme Court: e.g. Kitchener at [17].

If a person seeks to obtain copies of documents held on a coronial file, there is facility for an application to be made to the coroner or assistant coroner to be granted access to the coroner’s file or part of it: s 65(2) Coroners Act. In determining whether it is appropriate to grant a person access to a coroner’s file, the coroner or assistant coroner making the determination is to have regard to the matters set out in s 65(3).

If a disputing party seeks documents held by the coroner, the correct procedure for obtaining such documents is by request to the registrar of this Court, who must then make the request of the Coroners Court, rather than by issue of a subpoena to the Coroners Court: r 33.13 Uniform Civil Procedure Rules 2005 (NSW) (UCPR); Waller at 67 [I.294].

This Court’s jurisdiction is now commonly described as “inherent”, as explained by Lindsay J in Weidig at [24] as follows:

In certain areas of the law, it is recognised that there is a strong public interest element that may prevail over private claims. Probate is one of those areas of law. The disposal of human remains is another: Weidig at [26].

The purpose of the Court’s jurisdiction is to facilitate, so far as may be reasonably practicable, an orderly disposal of the mortal remains of a person whose dignity should be respected; it is that purpose which governs the jurisdiction’s exercise: Weidig at [28].

Jurisprudentially, the law governing the disposal of deceased bodies in contemporary Australian society has been said to occupy a unique space on the periphery of the law of succession, occupying a gap between the protective and probate jurisdictions where it is ancillary to both and not entirely part of either: Weidig at [29].

It is said that an executor has a duty to arrange for the burial or cremation of the deceased: Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492 at 519 per Isaacs J; [1910] HCA 44 (Union Bank). For this purpose, the executor is said to have a concomitant right to possession of the body of the deceased: Union Bank at 519; Kitchener at [6] per Emmett AJA, citing Sharp v Lush (1879) 10 Ch Div 468 at 472.

In many cases there is, admirably, cooperation amongst family members and other persons who have been close to the deceased, one or more of which may or may not be a nominated executor under a Will or a putative administrator, in respect of the deceased’s burial or cremation.

The main types of disputes which arise as to the carriage of burial arrangement and cognate issues involve contests over whether a person is the “spouse” of the deceased and disputes as between estranged parents of the deceased. Cognate issues might, for example, include claims for exhumation of a deceased’s body, in which case appropriate relief might include a declaration to the effect that the applicant is entitled to make an application for exhumation to the Secretary of the Department of Health pursuant to regs 94 and 95 of the PHR: see e.g. White v Williams at [6].

What can be said is that, because the making of arrangements for a funeral and the disposal of the deceased’s body will invariably be one of the earliest obligations of a nominated executor or putative administrator, the task that arises will frequently occur in circumstances in which there may be issues over his or her authority.

Issues may arise in circumstances where there are a number of competing Wills of the deceased that appoint different executors. There may be multiple executorial nominees. Questions may arise as to whether one or more of them wish to take on the office or renounce. However, the arranging of a funeral does not necessarily compel the person to formally take on the office of executor: e.g. G E Dal Pont, Law of Executors and Administrators (2022, LexisNexis) (Dal Pont) at 218 [10.3].

In the case of a deceased who dies intestate, there may be issues in relation to whether a person is a de facto spouse of the deceased.

There are guides to assist people in navigating disputes about authority over the disposal of human remains. Dal Pont devotes an entire chapter to issues that arise in relation to the disposal of human remains against the backdrop of disputes between family members or others seeking to have some involvement in the matter: Dal Pont at ch 10, and see specifically 218 [10.1].

Legislative provisions aside, the approach of courts to questions of the disposal of human remains has evolved significantly over the past two decades.

The law governing the disposal of a deceased’s body works best when there is a consensus about what is to be done or at least an acquiescence on the part of everybody who might reasonably be thought to have a right to object: Weidig at [36].

Burial disputes evoke strong feelings amongst the deceased’s grieving family and community. Sometimes, perhaps the only thing that is common ground between the disputing parties is that they each, in their own way and at one time or another, loved or cared for the deceased. By their nature, burial disputes are the very sort of disputes which are apt for consideration of referral to mediation. Many mediators or conciliators are experienced in dealing with fractured families and people who are fraught with grief, skilled in helping parties to see beyond their own pain and perspectives, and often able to call upon reserves of Solomon like wisdom [4] in exploring and achieving seemly and honourable solutions, or at least meaningful and enduring solutions, which may go beyond the reach of a court-determined outcome.

If the coroner has been involved in the matter, the CISP mediators or officers will often explore consensual burial arrangement outcomes with the interested parties.

The Court may also order that the parties attend a mediation in an attempt to resolve such issues: s 26 Civil Procedure Act 2005 (NSW) (CPA); e.g. Weidig at [14].

However, in some cases (of which this was one), where the parties are unrepresented and either estranged or not on speaking terms, the Court in preliminary listings might nevertheless be able to discern sufficient common ground between them to record and approve an acceptable regime, without the necessity of suggesting (or directing) that the parties formally mediate their differences.

If, notwithstanding the encouragement of the CISP mediators or officers, or the Court, the parties are unable to consensually resolve the issues, the Court stands ready to independently adjudicate disputes: Weidig at [36].

In such cases, there is a strong imperative for the Court, consistent with the overriding purpose attending civil litigation (see s 56 CPA), to have the deceased’s body disposed of with respect and without undue delay: Smith v Tamworth City Council (see below) at 694B (proposition 6); Waller at 68 [I.301].

Claims regarding the custody of a deceased’s body might arise within 24 hours after the deceased’s passing. Claims regarding the disposal or internment of the deceased’s remains or the distribution of ashes might arise within days or a week after the deceased’s passing.

Commonly, it is the Court’s experience that such claims are urgently or hurriedly brought before the Court with parties seeking relief in rapidly evolving or quickly changing circumstances.

The Court is often asked to address matters, including the making of restraining orders or other orders preserving the status quo, and sometimes entertaining final relief, in circumstances where the parties (who are either family members or other persons who claim to be interested in such issues) have not even arranged for legal representation, let alone formalised any evidence upon which they seek to rely or, if there is any evidence, without testing of such evidence.

The initial task of the Court is often one of: gleaning information about the deceased; identifying the members of the deceased’s immediate family and those who might be interested in the disposal, internment or distribution issues; clarifying who currently holds or has control of the deceased’s body, and where it is located; and ascertaining whether there are any material cultural or spiritual factors as to how the deceased lived in his or her life which may bear upon appropriate orders to address the disposal, internment or distribution issues.

In the first instance, the Court seeks to ensure that no precipitous action is taken in relation to the disposal or internment of the deceased’s body. The Court will frequently consider making orders to restrain any action in that regard whilst the claims of the party who has approached the Court are made known to the defendants and other interested parties by service of the document or documents initiating the claim.

Because of the range of different issues that may arise in any given case, there is little utility in attempting to exhaustively state the approaches that are taken to determining who has the authority to dispose of a deceased’s remains.

Leaving aside legislative provisions which impact upon the position under the general law, a common starting point for considering that issue is the seminal decision of Young J (as his Honour then was) in Smith v Tamworth City Council (1997) 41 NSWLR 680 (Smith).

In Smith, having undertaken an extensive review of the authorities, Young J stated fifteen propositions regarding the then current legal position with respect to the right of burial in New South Wales: Smith at 693F-694E. The propositions are as follows.

In 2022, Young J’s propositions were reviewed by Kate Falconer in her notable article “Australian Burial Law 25 Years on from Smith v Tamworth City Council” (2022) 96 ALJ 581 (Falconer). Ms Falconer concluded that, whilst many of the propositions in Smith were uncontroversial statements of long-standing legal principles that remained good law, courts ought to be cautioned against the uncritical citing of Smith as the ultimate authority in Australian burial law: Falconer at 594.

In particular, Ms Falconer concluded that a number of the propositions were of limited practical utility either as a result of difficulties regarding enforcement (proposition 3), supersession by statute (proposition 5) or confusion as to the content of the proposition itself (proposition 15): Falconer at 594. Further, she concluded that at least three of the propositions (being propositions 4, 6 and 10) had been the subject of dramatic and radical development. She stated that whilst those were accurate statements of the law when set out by Young J in Smith in 1997, they no longer reflected the true legal position taken by courts resolving burial disputes in 2022: Falconer at 594.

Whilst religious, cultural and spiritual considerations have from time immemorial been an important aspect of the Court’s considerations, recently in Australia, and in New South Wales particularly, the arrangements for burial or disposal of the remains of indigenous people have been the subject of particular attention: e.g. White v Williams.

The state of the current authorities was very helpfully reviewed by Lindsay J in Weidig. His Honour reviewed the Court’s jurisdiction through consideration of its nature and purpose. In analysing the position, his Honour noted the tension in authorities between claims of right in relation to the exercise of burial and the Court’s task in the management and determination of disputes about disposal of a dead body. Lindsay J observed that there has been a shift away from rights-based jurisprudence in respect of the identification of a person to have carriage of disposal of a body: Weidig at [55]-[56]. In this regard, his Honour explained that Young J’s propositions in Smith have been more recently considered as guidelines for decision-making rather than legal rules: Weidig at [42].

Even if the law facilitates an executor’s authority and responsibility to make decisions in respect of the disposal of the deceased’s body, it has been recognised that it is advisable for the executor to take into account any known wishes of the deceased and to consult with others (whether they be family members or not) who have an interest in the matter: Dal Pont at 255 [10.23]. In the event that independent adjudication is required, the factors to which the Court may have regard in determining a burial dispute (in the absence of legislation bearing upon the matter) were non-exhaustively summarised by Lindsay J in Weidig at [38] as follows:

As noted above, the initial listing and any interlocutory orders may take place in circumstances where there is a paucity of admissible evidence.

Even on a contested or final hearing of the matter, the need for the disposal of the deceased’s body with respect and without undue delay will often give rise to circumstances in which there may be some material placed before the Court which is not in perfect evidentiary form and there is little opportunity for expert evidence to be obtained: see e.g. Abraham at [19] per Rothman J (due to the urgency with which the matter came before the Court, no expert had been qualified and the Court was not assisted by the provision of an independent expert report that accorded with the Evidence Act 1995 (NSW)). Ideally, the approach of the Court is to avoid any lengthy adversarial hearing and cross-examination should be either very limited or not undertaken at all: e.g. Waller at 70 [I.306], citing Dodd v Jones [1999] SASC 458; (1999) 205 LSJS 105 and Keller v Keller (2007) 15 VR 667; [2007] VSC 118.

The fact that the final hearing of the proceedings may be conducted in an informal manner is consistent with the nature of the Court’s jurisdiction having a quasi-protective aspect: see e.g. Weidig at [12] per Lindsay J.

Particularly where there are closely competing parties or “equivalent” next of kin, [5] the Court’s task been described as having to make an evaluative judgment as to who is best suited or best able to deal with the remains of the deceased given the various factors identified in the authorities: White v Williams at [114].

What follows is a basic chronology of what occurred following the deceased’s passing. It is drawn from the materials before the Court in a context in which there is no formal sworn evidence and no formal testing of the material, at least in the form of cross-examination, has been undertaken.

The deceased resided at Darlington Point in New South Wales, about 36 km south of Griffith.

On 12 May 2024, the deceased suffered a heart attack. He passed away at Griffith Base Hospital. At that stage, the plaintiff was located at Port Hedland, Western Australia. On 13 May 2024, the plaintiff travelled to New South Wales.

On 20 May 2024, an officer from “Newcastle Forensics” identified by the plaintiff as “Noel” noted or made a report to the effect that the deceased had passed away as a result of complications of community acquired pneumonia.

The plaintiff was concerned regarding the cause of death and requested that an autopsy (i.e. a post mortem) be undertaken due to inter alia the squalid living conditions present in the deceased’s house.

The plaintiff asserts that an autopsy was refused as Ms Brown had accepted the cause of death.

On 23 May 2024, the plaintiff returned to Port Hedland.

On 24 May 2024, a representative of Trenerry Funerals in Griffith emailed the plaintiff and provided her with what she describes as the Coronial Certificate as to Cause of Death for the deceased. Further, on that day the plaintiff received the deceased’s Will from a legal firm in Broken Hill, DSK Legal, which informed her that the defendant was the executrix of the deceased’s Will.

The Coronial Certificate as to Cause of Death was issued by the Assistant Coroner pursuant to s 89(6) of the Coroners Act.

The Certificate stated that the deceased died of natural causes. The direct cause of death was stated as being “complications of community acquired pneumonia”. No antecedent causes or other significant conditions were listed. By the Certificate, the Assistant Coroner dispensed with a post mortem examination in circumstances where “on sufficient evidence” the Assistant Coroner was able to determine “the particulars relating to” the deceased’s death.

As matters presently stand, it appears that the deceased died testate, with his last known Will being a document dated 10 February 1992 (1992 Will). In its terms, the 1992 Will appoints the defendant as executrix and trustee of the deceased’s Will and, in events which have occurred, left the entirety of the deceased’s estate to the defendant.

The defendant has the original of the 1992 Will and has taken steps to apply for a grant of probate of the 1992 Will. She is presently doing that with the assistance of her estate planner, who is awaiting receipt of a death certificate.

The deceased’s estate is small and (without being precise) is valued in the order of $25,000 according to the defendant or between $50,000 to $100,000 according to the plaintiff, and is comprised of:

The plaintiff has in her custody a degree of paper work which is relevant to the administration of the deceased’s estate.

The expenses of Trenerry Funerals have been paid from the deceased’s funds held with Westpac.

Consequent upon some funds having been removed from the deceased’s bank accounts (according to the defendant, about which the Court makes no finding at this stage), there are now limited funds in the deceased’s bank accounts.

The deceased’s estate had certain expenses, including an ambulance invoice, rates due on the deceased’s lot of land (as well as a lot of land which he leased) and for BOC gas bottles.

The plaintiff claims that, between 13 May and 10 June 2024, she had worked collaboratively with Ms Brown and the deceased’s siblings to organise a funeral which they “were all satisfied with”. She states that, as more time passed, she became quite upset that no plans were set in place and the deceased’s body was “decomposing and not being laid to rest during this traumatic time”.

On 5 June 2024, Misty Koulianos, the Coronial Information Support Officer communicating on behalf of Magistrate Lee, issued to the plaintiff a “Burial Dispute Notice” in the following terms:

Further, the plaintiff asserts that the defendant mentioned to Julie Warner (one of the deceased’s sisters) that:

On 6 June 2024, the plaintiff asserts that, as between herself and Ms Brown, they agreed for the deceased to be cremated.

According to the plaintiff’s understanding, on 7 June 2024 Magistrate Lee ordered that the deceased’s body be cremated and forwarded the order to Trenerry Funerals.

Notwithstanding the Magistrate’s order, according to the plaintiff, on a number of occasions Ms Brown said to her and communicated with her in writing to the effect that the plaintiff could organise the deceased’s funeral how she wished.

On 10 June 2024, the plaintiff says that she organised a funeral for the deceased with Trenerry Funerals.

On 12 June 2024, the plaintiff claims that Ms Brown changed the plans which the plaintiff had arranged with the Trenerry Funerals. On the same day, the plaintiff contacted Trenerry Funerals and the New South Wales Coroner, who informed her that “Olivia”, a representative from Griffith Local Court, had “advised” that Ms Brown was considered to be the deceased’s “senior next of kin”, having regard to records from the deceased’s hospital admission three weeks prior to his death which listed her as such.

On 13 June 2024, the plaintiff says that Ms Koulianos requested that she submit evidence before her of Ms Brown not being in a de facto relationship with the deceased (I infer at the time of death). According to the plaintiff, she did.

On 14 June 2024, Ms Koulianos and Amy Vincent-Pennisi (a Coronial Information and Support Coordinator) advised that they had attempted to resolve the dispute about funeral plans through counsellors within the Court and, despite attempts, the matter was not able to be resolved. The plaintiff claims they advised that the coroner proposed to release the deceased’s body to a funeral director arranged by the defendant (likely in her capacity as putative executrix) by 4 pm on 18 June 2024.

At 7:09 am on 17 June 2024, Susan (the deceased’s eldest sister) sent an email to the plaintiff in the following terms:

The email provoked a strong response from the plaintiff sent in an email to Susan, Julie and the defendant on the same day. The content of the email is, on one view, not particularly edifying. Suffice it to say that the email flagged to the recipients the plaintiff’s concerns regarding what should happen to the deceased’s body and her intentions if what she proposed did not occur.

According to the plaintiff (albeit that the defendant disputes this), the defendant changed some of the funeral plans which the plaintiff had proposed, including it seems the timing for a service (which the plaintiff says she would be unable to attend due to her being in a remote location in Western Australia), with the service being arranged in “outback NSW”.

The plaintiff claims that the defendant and the deceased “never spoke to one another” following a “toxic separation ending in court in 2004” due to the defendant “getting everything” and the deceased “not getting anything”.

The plaintiff claims that, for her part, she has tried to resolve the dispute around funeral arrangements several times through calls, texts and emails to various parties including Ms Koulianos, Ms Vincent-Pennisi, Olivia, Trenerry Funerals and each of Ms Brown and the defendant.

The plaintiff asserts that the deceased’s wishes were for his estate to be shared equally between her brother (by whom I assume she means those interested in her brother’s estate) and herself.

In the early morning of 19 June 2024, there appear to have been the following communications:

Later on 19 June 2024 at 11:58 am, the plaintiff sent an email to the mailbox of this Court’s Duty Registrar noting that she was in a remote town in the Pilbara in Western Australia and wished to file certain documents in relation to her urgent matter.

On 20 June 2024, client services officers of this Court communicated with the plaintiff and directed her to the Equity Duty Judge.

Later on 20 June 2024 at 2:56 pm, the plaintiff sent an email to my Associate indicating that she wished to make an urgent application in relation to the release of the deceased’s body for immediate creation, as well as the other relief I have described earlier. She provided a number of documents, including a form of statement of claim and an unsworn version of an affidavit. Unbeknownst to the plaintiff and to the Court at that time, Trenerry Funerals had earlier that morning arranged, on the instruction of the defendant, for the cremation of the deceased at 1:30 pm, approximately 90 minutes before the plaintiff’s contact with my Associate. That fact was not ultimately made known to the Court until the afternoon of Saturday, 22 June 2024.

At 3:30 pm, having briefly reviewed the materials, my Associate (at my request) notified the plaintiff that the matter was listed for mention at 4 pm that afternoon and permitted the plaintiff to attend via audio-visual link.

Shortly after 4 pm, the plaintiff emailed my Associate and indicated that she had just been released from class (as she is a teacher) and would arrange to connect to the Court shortly.

The listing commenced at 4:11 pm and, following some questions to the plaintiff regarding a number of matters, including her understanding of the present position and the location of the deceased’s body, I made the following orders:

At 11:14 pm that night, the plaintiff provided a form of affidavit of service and requested clarification as to whether the audio-visual link was being extended for the following morning’s hearing.

On 21 June 2024 at 7:47 am, my Associate, by email to the plaintiff and the defendant’s specified email address, indicated that I permitted the parties to attend the listing via audio-visual link, and a link was provided.

At 9:03 am, while the plaintiff was connected to the Court’s link, there was no appearance on behalf of the defendant. I indicated that I would wait for about 15 minutes to allow the defendant time to join the link. At 9:17 am, there still being no appearance for the defendant (either as a result of the matter being called outside Court or via connection through audio-visual link), I proceeded to address the matter.

I made the following orders:

On Saturday 22 June 2024 at 2:58 pm, the director of Trenerry Funerals sent an email to the plaintiff in response to her email serving the above orders, copying in the defendant and also my Associate, in the following terms:

On Sunday 23 June 2024 at 11:57 pm, the plaintiff sent to my Associate a form of affidavit of service of court orders upon the defendant and Trenerry Funerals.

On the morning of 24 June 2024, there were a series of emails (commencing at 1 am) sent between the plaintiff and the defendant, which emails were copied to my Associate, leading up to the listing at 9 am.

The crux of the emails received from the defendant at 8:30 am was that she was seeking an adjournment of the matter to get legal advice and to answer what she alleged were false submissions made by the plaintiff.

At 9:09 am, the matter commenced before me with each of the plaintiff and the defendant appearing on their own behalf by telephone.

After hearing from each of them and having discussed a number of matters, I made the following orders:

On the listing on 24 June 2024, the defendant intimated that, insofar as the distribution of the ashes was concerned, she understood that the division of the ashes would likely be such that the plaintiff would receive one-third, Ms Brown would receive one-third and the deceased’s brother and sister would receive one-third. The defendant confirmed that she did not have any interest in receiving a share of the ashes.

Further, as far as the defendant was aware, there was no Will of the deceased other than the 1992 Will. She outlined a number of respects in which she had difficulty in administering the estate without yet formally having obtained a grant of probate.

In circumstances in which it appeared from statements made by the plaintiff and the defendant that they were estranged, I indicated that any discussions between them could be facilitated by representatives on their behalf.

On 1 July 2024, the parties appeared before me again by telephone link.

Immediately prior to the listing, the plaintiff emailed to my Associate a document setting out orders which she was seeking (relief document).

In particular, the plaintiff had by her relief document (and previously) foreshadowed that she would seek some form of mediation through the NSW Community Justice Centre.

It appeared to me that, from the plaintiff’s relief document, what I had gleaned from the parties at the court listings and all of the material that was on the Court file or had otherwise been sent by the parties to my Associate, there was an imperative to separate out questions in relation to the disposal of the deceased’s remains (in this case his ashes) on the one hand and the plaintiff’s other claims in relation to probate and administration of the deceased’s estate on the other hand.

Consistent with the provisions of s 56 of the CPA and having regard to the nature of the Court’s inherent jurisdiction in relation to the disposal of the deceased’s remains, I attempted to glean from the parties whether, notwithstanding their personal differences, they were agreeable to a regime that at least addressed the disposal of the deceased’s ashes in the first instance, whilst leaving other remaining issues to be dealt with later.

The listing lasted for a close to an hour. On the listing, I sought to clarify certain information about the family and to establish whether some agreement regarding the issues in the matter could be reached.

I subsequently marked the plaintiff’s relief document as Exhibit P1. Exhibit P1 records issues raised by the plaintiff in relation to:

Specifically, in Exhibit P1 the plaintiff set out the orders which she sought in relation to the ashes issues as follows:

I have decided to deal with the ashes issues, as they are set out in the above extract from Exhibit P1, as a question separate to the balance of the matters raised in Exhibit P1 and the prayers for relief sought in the plaintiff’s statement of claim (excluding those that have been superseded by events): r 28.2 UCPR. In doing so, I note that, for the purposes of UCPR Pt 28, “question” includes “any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise”: r 28.1 UCPR. The intention behind this approach is, as I have alluded to above, to deal with the disposal of the deceased’s remains without undue delay.

In light of some of my questions, it seemed to me that there was either willingness or non-resistance on the part of the defendant to address quite a few of the matters that the plaintiff sought by way of relief in respect of the ashes issues.

Provisionally, it seemed to me that, in light of what appeared to be substantial agreement between the parties, there was little point in the parties seeking to mediate the ashes issues in circumstances where I could potentially make notations and orders as between them which addressed those issues, and which left the probate and other issues to be subsequently addressed by the Court.

Thus, on 1 July 2024 I made the following orders:

The parties continued to send email correspondence to my Associate regarding the matter.

On 2 July 2024, I instructed my Associate to send an email to the parties setting out a list of proposed notations and orders which recorded, as I understood it, matters which appeared to be common ground between the parties in relation to the ashes issues.

The email expressly noted that it was the intention of the proposed orders to see if it was possible for there to be recorded notations and orders addressing the ashes issues in light of what appeared to be substantial agreement between the parties and to defer the probate and other issues for the plaintiff to reflect upon and be dealt with later by the Court.

In particular, the email indicated that the intention of the draft orders was to obviate the need for any mediation before a Community Justice Centre at least in respect of the ashes issues. The email invited the parties to review the draft orders and to indicate whether they were agreeable to them, noting that unless there was agreement the current position (namely that Trenerry Funerals would retain the ashes) would subsist pending any further order of the Court.

On 3 July 2024, my Associate had not yet received a response from the parties. At my request, she sent a subsequent email requesting that the parties provide a response and indicate whether they were agreeable to the orders proposed.

The parties responded to the subsequent email. Whilst it appeared that the plaintiff was seemingly agreeable to the proposed notations and orders, the parties were potentially seeking to continue with arrangements for a mediation before the Community Justice Centre without having first indicated agreement with the proposed orders.

On 4 July 2024, in light of the above, and seeking to avoid the parties potentially taking matters further into their own hands without an orderly regime in place which was reflected in court orders, I requested that my Associate list the matter. For the purposes of ensuring that Trenerry Funerals had an opportunity to be heard (as it would be affected by the outcome of the matter), my Associate requested that a representative of Trenerry Funerals appear on the listing.

On 5 July 2024, the matter was listed at 9 am.

Overnight and on the morning of 5 July 2024 prior to the listing, my Associate received further materials from the plaintiff.

My provisional assessment of those materials was that they bore upon questions as to the probate and other issues, as distinct from the ashes issues.

The listing proceeded. The plaintiff and the defendant appeared by telephone link to the Court, as they had previously done. Further, Mr Calabro, one of the owners and directors of Trenerry Funerals, also appeared by telephone.

I reminded the parties that what the Court was attempting to do was to separate the ashes issues from the probate and other issues in order to see whether there could be agreement in respect of the former. That way, the remains of the deceased could be expediently addressed with appropriate dignity, leaving the other issues to be later resolved.

In discussion with the plaintiff and the defendant, I confirmed that the orders that I had proposed were acceptable to them. I noted that the intent of the proposed orders was to ensure that Trenerry Funerals, to the extent that it incurred any further expense in relation to compliance with the orders, would have such expense regarded as an administration expense for the estate, and that it would be at liberty to enforce against the estate payment in respect of such costs. I expressly gave Mr Calabro an opportunity to indicate whether there was anything that he wished to say or sought to be heard on in relation to the proposals. He indicated that there was nothing that he wished to state.

In the above circumstances, I make the following orders which are intended to finalise any disputation between the parties in relation to the ashes issues, with allowance for liberty to apply in relation to the working out and enforcement of the orders.

The orders of the Court are as set out below.

The Court, with the consent of the parties: