State of New South Wales v Gill

By a summons filed on 6 September 2023, the State of New South Wales (as plaintiff), seeks orders for the disposal of the remains of Debbie-Lee Gill (“the deceased”) who died intestate (and with no substantial assets) on 8 January 2021 aged 40 years (having been born on 30 March 1980).

The remains of the deceased are presently held at a mortuary at the premises of Newcastle Forensic Medicine (co-located with John Hunter Hospital), the staff of which are employed in the NSW Health Service. In the context of the present proceedings the State of NSW can be taken to be the appropriate representative of the public institution in possession of the deceased’s remains.

The parties to the proceedings comprise, in addition to the plaintiff:

The deceased was survived by the following family members, who are not named as parties in the proceedings:

A fourth child of the deceased (named “Angel”) was still-born in 1999 and, by arrangement with the deceased, cremated.

Each of the parties to these proceedings other than the deceased's father claims Aboriginal heritage. As a close member of the family that identifies as Aboriginal, he can be taken to have been accepted by the Aboriginal community into which he has married and, with his wife, raised a family.

The deceased and her biological family have identified as Wiradjuri. The second defendant and his family have identified as Bundjalung. Each side of the controversy draw support from Indigenous custom as they perceive it to be in their particular community. The relationship between the deceased and the second defendant (however it may otherwise be characterised) was, in terms of the parties’ self-identification, cross-cultural. The biological family say that cremation is an acceptable option within their community. The second defendant disputes that, insisting upon a burial according to indigenous custom as he perceives it to be.

Close attention has not been given in these proceedings to the form of any ceremony that might attend a funeral, be it associated with a burial or a cremation.

The defendants representing the biological family of the deceased (the first, third and fourth defendants) dispute the claim of the second defendant to have been in a de facto relationship with the deceased at the time of her death. Rightly or wrongly, they blame him for her death. The third defendant in particular, has been prominent in advancing that case.

On or about 2 February 2021 the Deputy State Coroner determined, for the purposes of the Coroner’s Act 2009 NSW, that the second defendant, as the self-proclaimed de facto spouse of the deceased, was her “senior next of kin” within the meaning of section 6A of that Act, a determination which the biological family of the deceased contend was incorrect.

The Coroner's determination, in aid of the due administration of his statutory functions, has no material bearing on the Court’s determination of the present proceedings. The Coroner’s Act 2009 does not in any way abrogate the Court’s inherent jurisdiction, the intersection of which has been recently explained by Meek J in Dayman v Dayman [2024] NSWSC 838.

The Coroner has more than once expressly advised the deceased’s biological family that the coronial process has been completed; that the deceased’s body may be released to the first defendant (as administrator of the deceased’s estate) from the mortuary where it is now located; that, despite persistent representations on behalf of the biological family, the Coroner is not minded to order that there be a further autopsy of the body; and that “a dignified burial [for the deceased, as contemplated by an agreement recorded in orders made by Hallen J on 22 July 2021 pursuant to which letters of administration were granted to the first defendant] can occur in tandem with any further requests for the reopening of the coronial matter or further police investigation”.

Leaving aside the “agreement” noted by Hallen J, the biological family has consistently advanced the case for a cremation of the deceased’s body after the completion of a second autopsy to address what they contend to be deficiencies in the autopsy conducted under the supervision of the Coroner. The Coroner has invited the family to arrange a private autopsy but, they say, they have been unable to find a qualified person willing to conduct a private autopsy.

As matters presently stand, the family does not accept the Coroner’s reasons (published in a document styled “Coroner’s Report on Dispensing with an Inquest” dated 16 February 2022) for declining an inquest and they reserve such, if any, entitlements they may have to reactivate the coronial process or to make representations for police action against the second defendant.

The second defendant's case depends not upon the Coroner’s administrative determination that he was the “senior next of kin” of the deceased or, indeed, upon whether he might be characterised as having been in a “de facto relationship” with the deceased (within the meaning of section 21C of the Interpretation Act 1987 NSW or otherwise) at or before the time of her death. It depends upon an assessment, in fact, of the existence and nature of his personal relationship with the deceased and his evidence of statements attributed by him to the deceased about disposal of her body upon death. Substance over form is the focus of attention in these proceedings.

On 22 July 2021 (in probate proceedings numbered 2021/00035921) Hallen J ordered that letters of administration of the intestate estate of the deceased be granted to her mother, the first defendant.

Those orders were made in proceedings commenced by a “Summons for Administration” filed on 8 February 2021 by the first defendant seeking a grant of letters of administration on intestacy and, by way of interim relief, an order for a special grant of administration “limited to the Administrator having custody of the deceased’s body and being authorised to arrange the burial of the deceased” or, in the alternative, “a declaration pursuant to section 6A of the Coroner’s Act that the plaintiff [the first defendant in the present proceedings] is the Senior Next of Kin”.

An Amended Summons was filed on 15 March 2021 in which the plaintiff (the first defendant in these proceedings) specifically sought a declaration that she is entitled to have the body of the deceased delivered to her for the purpose of making cremation arrangements and that she is “entitled to cremate [the deceased] if she wishes so”.

By a statement of cross-claim filed on 19 March 2021 the defendant to those proceedings (the second defendant in the current proceedings) sought a declaration that he is entitled to have possession of the body of the deceased “for the purpose of making burial arrangements”; that he is “entitled to bury” the deceased; and that he should be granted letters of administration on intestacy in relation to the deceased’s estate.

It was in that context that the parties to the administration proceedings (not all the parties to the current proceedings) ostensibly consented to orders made by Hallen J in chambers providing for a grant of administration to the plaintiff (the first defendant in the current proceedings) and incorporating a notation of an agreement of the parties that:

Letters of Administration were issued by a Senior Deputy Registrar on 10 December 2021 pursuant to the orders made by Hallen J on 22 July 2021. The Inventory of Property annexed to the Letters of Administration discloses that the deceased died owning property valued at $899.86, comprising $199.86 in a bank account and jewellery with an estimated value of $700.

In essence the agreement recorded by Hallen J was for the body of the deceased to be released to the first defendant for burial, largely (but not only) at her expense, at Noraville Cemetery, a location favoured by the second defendant, according to a regime predicated upon co-operation between the parties.

The first defendant has disclaimed that agreement, contending that she was unfairly pressured by her then solicitor into agreeing to a burial rather than a cremation and that she understood that, despite the formal agreement recorded by the Court on 22 July 2021, she was free to arrange for the deceased's remains to be cremated.

Save for the disputed “agreement”, there is no evidence that any member of the deceased’s biological family has ever conceded that the second defendant was in a de facto relationship with the deceased or that he was, or is, entitled to be regarded as her Senior Next of Kin.

It is not necessary in these proceedings to make a determination about this controversy because, as the State has correctly observed, the positions of the parties as to the funeral arrangements for the deceased are irreconcilable and no interested person is willing to proceed in accordance with the notation of Hallen J. Any agreement between the parties as recorded in his Honour’s notation which might otherwise be regarded as enforceable at law must be taken to have been abandoned by the parties and, if ever adopted by them, all other interested persons. It finds no favour with anybody.

In these proceedings:

As foreshadowed to the parties at a pre-trial directions hearing (at a time when the second defendant was represented by counsel), and without objection by any party, the hearing of the plaintiff’s summons was conducted on the basis that:

This is consistent with the approach adopted in proceedings upon an exercise of protective jurisdiction (with which the current type of proceedings has some things in common, both concerned with protection of, and respect for, the welfare and interests of a central personality not wholly present before the Court) in proceedings which are principally directed to administration of that central personality’s affairs “without strife in the simplest and least expensive way”: RAP v AEP [1982] 2 NSWLR 508 at 512C-D; W v H [2014] NSWSC 1696 at [50], informed by HS Theobald, The Law Relating to Lunacy (Steven & Sons, London, 1924), pages 59-60 and 382.

The Court’s jurisdiction is not directed towards the determination of competing rights between competent parties (who, in ordinary civil proceedings are generally able to appear on their own account and to protect their own interests), but towards an orderly and respectful disposal of the remains of an individual person (not present and able to protect his or her own interests), informed by the witness of those who knew the deceased, but not confined by the evidence of any person or party as might be the case in an adversarial contest about competing claims of right between competent adversarial parties.

The conventional experience of a court exercising protective jurisdiction offers an insight into how disputes about the disposal of a dead body can be, and generally are, contested with less formality than that ordinarily expected in ordinary civil litigation. Theobald’s classic text provides a convenient summary of that experience (at pages 59-60):

Although NSW as long ago as 1958 abandoned the word “Lunacy” in its description of the Court’s protective jurisdiction, and formally adopted the expression “Protective jurisdiction” as the appropriate descriptive label, the accumulated wisdom of those administering the jurisdiction since the time of Lord Eldon as Chancellor resonates in contemporary Australian experience. Theobald’s commentary is based upon Eldon’s jurisprudence and his own experience as a Master in Lunacy. As explained in W v H, Theobald is a principal source for NSW case law dealing with the protective jurisdiction.

Even if the practice in protective proceedings is not in terms adopted, the exigencies of a body disposal case may warrant a departure from strict rules of evidence commonly encountered in ordinary adversarial proceedings: Dayman v Dayman [2024] NSWSC 838 at [103]-[106].

The biological family of the deceased were represented by pro bono lawyers at the hearing of the proceedings, with counsel having also appeared at interlocutory hearings. The second defendant was represented by pro bono counsel until, at the commencement of the hearing, he (with no objection on the part of the second defendant) applied for, and was granted, leave to withdraw. The second defendant represented himself throughout the hearing.

These proceedings involve a number of novel, although not entirely unique, features that require notice.

The first is that the State, as plaintiff, is the moving party, not (as is usually the case) a member of the family or broader community of the deceased person whose body is the subject of the proceedings. This requires reflection on the standing of the State to bring these proceedings; the nature of the standing required to invoke the Court’s jurisdiction in a “body disposal case” (commonly described as a “burial case”); and the nature of the jurisdiction itself.

The second novel feature of the proceedings, connected with the first, is that the State, as the moving party, has disclaimed any adversarial role in the proceedings and adopted a role akin to that of an interpleader or a trustee in a construction suit in which the task at hand is to assist the Court, leaving adversarial positions to be taken by other parties. The State has no interest in the outcome of the proceedings beyond seeking an orderly outcome and, if no party accepts financial responsibility for disposal of the deceased’s body, entertaining the possibility of a publicly funded funeral.

The third novel feature of the proceedings is that, contrary to the seminal judgment of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693F-694B and the many cases that have viewed “body disposal cases” through the prism of probate law and practice in the administration of a deceased estate (including, at an appellate level, Britt v Office of the State Coroner [2022] WASCA 75 and 75(S); Marshall v Elson [2023] SASCA 1, 3 and 4; and Frigger v Frigger [2023] WASCA 103), there is little guidance to be had in these proceedings from an analogous consideration of “rights” to the administration of a deceased estate, or from an adoption of a hierarchy of competing rights to administration, because a grant of administration has been made and it has proved ineffectual.

There is no room for speculation about who might be entitled to a grant of administration. A grant has been made. No application has been made for its revocation and there would be no utility in a revocation application or order. Neither is there utility in making a decision based upon an administrator’s, or a prospective administrator’s access to estate funds to fund a funeral; the deceased died with insufficient funds to pay for a funeral or to reimburse the funder of a funeral. Nor is there utility in approaching the problem presently before the Court on the basis that an administrator (like an executor) has an obligation by virtue of his or her office to arrange an orderly disposal of the deceased’s body; a grant of administration has been made based upon notation of an agreement not implemented and the body of the deceased has been kept in storage by the State since that time in a default setting.

Newcastle Forensic Medicine continues to follow any informal directions that may be given by the Coroner’s Court from time to time regarding the body.

The fourth novel feature of the proceedings is that the jurisdiction of the Court has been invoked, not to deal with an urgent application for relief (as usually occurs), but rather to deal with a stalemate between competing interests that has gone on far too long, leaving the deceased’s body in cold storage, personal animosity on the boil and the public purse diminished by the costs of it all.

The researches of counsel and the Court have located only two cases in Australia in which a State has applied to a Supreme Court for directions about disputed arrangements for the disposal of a dead body. Both were in South Australia.

In South Australia v Smith [2014] SASC 64; (2014) 119 SASR 249 at [5]-[8] Nicholson J proceeded on the basis that:

In South Australia v Ken [2021] SASC 10, Stanley J proceeded on the basis that:

A case involving a State as a plaintiff in proceedings for directions about the disposal of a body in order to resolve an irreconcilable dispute between individuals who claim to be “family” or “a significant other” of the deceased person is to be distinguished from a case in which an attorney general is granted leave to appear before the Court as an amicus curiae. Charafeddine v Magistrate Denes sitting in the Coronial Jurisdiction at Ballina [2015] NSWSC 269 at [22] is an illustration of such a case. A similar case, but one in which it is not clear whether it was the State or the attorney general who appeared as an amicus curiae or whether the State was joined as a party, is Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 at [16]. Cases such as these do not involve the State or a minister of the State acting as a moving party.

Not uncommonly, the Office of a State Solicitor will appear (and commonly enter a submitting appearance) on behalf of a Coroner joined in proceedings because in possession of a body the subject of the proceedings. Cases of this character differ from a case in which a State is the moving party in proceedings even if, as might reasonably be expected, a Coroner in possession of a body might be called upon to provide assistance to the Court and parties, and might invite the Court to proceed in a particular direction.

In the present proceedings the State of New South Wales, as plaintiff, expressly relies for its standing upon its possession (perhaps, more accurately, its possession, custody and control) of the deceased’s body.

As it seems to me, that approach, at least implicitly, draws upon the analogy of an interpleader action (Dayman v Dayman [2024] NSWSC 838 at [67]) and perhaps even (at a stretch) the notion (reflected in the seminal judgment of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694B-C) that “if a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body”, although neither analogy is perfect.

The foundational idea, commonly discussed by reference to Doodeward v Spence (1908) 6 CLR 406, that there is generally no property in a dead body sits uncomfortably with the idea of an interpleader action to enable the Court to determine competing claims of right to property. So too does characterisation of the State as a householder who, by mischance, happens upon a body in close quarters.

In my opinion, the standing of the State (or indeed any other party) to apply to the Court for directions about disposal of a dead body in a case in which there is a dispute between members of the deceased’s community (family and significant others) takes its colour from the Court’s inherent jurisdiction to give such directions.

The Court’s jurisdiction to make orders governing the disposal of a dead body may properly be regarded as incidental to its establishment as a superior court of record responsible for the administration of justice within New South Wales and, whatever its historical foundations, it is supported by the Supreme Court Act 1970 NSW, section 23, which provides that “[the] Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”: Brown v Weidig [2023] NSWSC 281 at [24]; Dayman v Dayman [2024] NSWSC 838 at [71]-[74].

An analysis of the Court’s inherent jurisdiction has focal points in the following propositions:

It is generally correct to say that there is a common law requirement that a plaintiff who brings an action, not to vindicate a private right, but to prevent the violation of a public right or to enforce the performance of a public duty, must have a special interest to protect: Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 524.

However, the character of the Court’s inherent jurisdiction to make orders governing disposal of a dead body the subject of a dispute about its disposal does not lend itself to analysis in terms of the prevention of a violation of a public right, to enforcement of the performance of a public duty or the identification of a special interest to protect.

The judgment of the High Court of Australia in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at [2], [93]-[98], [162] and [211] points the way to an understanding of the nature of “standing” in service of the Court’s inherent jurisdiction to determine a dispute about disposal of a dead body. It does this in its recognition of the historical fact that, at common law and in equity, there has been no universal rule (of law or practice) that a plaintiff must have a “sufficient special interest in the subject matter of an action” to have standing to invoke a jurisdiction of the Court governed by public interest considerations.

Perhaps the clearest illustration of this is found in the realm of prerogative writs, with a writ of habeas corpus (in NSW, now replaced with similar relief available under the Supreme Court Act 1970 NSW, section 69), available on the application of a stranger: see Ex Parte West (1861) 2 Legge 1475 (cited by Kirby J at 200 CLR 653) and R v Waters [1912] VLR 372 at 375 (cited by Gummow J at 200 CLR 627). The same is true upon an exercise of protective jurisdiction; a stranger may apply for the appointment of a protected estate manager: Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106; Re An Alleged Incapable Person (1959) 77 WN (NSW) 156.

In my opinion, any person, even a stranger, has standing to apply to the Court for directions, upon an exercise of its inherent jurisdiction regarding the orderly disposal of a dead body, if the applicant can demonstrate a reasonable case for the intervention of the Court. No “special interest” beyond that is required.

Ordinarily, such an applicant might reasonably be expected to be a member of the community of the deceased (a member of his or her “family”, however defined, or a significant other); a person in whose possession, custody, control or care the person or body of the deceased was at about the time of death or at the time of commencement of proceedings; or a public institution or officer acting within authority.

In any case, the Court must remain diligent to deny standing to any applicant reasonably perceived to be officious or motivated by an improper purpose; that is, a purpose other than making arrangements for an orderly and respectful disposal of a body. The purpose for which the jurisdiction of the Court exists governs questions of standing no less than an exercise of jurisdiction generally.

In the current proceedings, the State has possession, custody and control of the deceased’s body and has patiently, and beyond any obligation to do so, kept the body in its care in default of steps being taken within the community of the deceased to dispose of it. The State has commenced, and maintained, these proceedings for the very purpose for which the Court’s jurisdiction exists. An acknowledgement of that fact underpins a formal finding that it has the requisite standing to maintain the proceedings.

The parties to these proceedings accept that the principles to be applied in disposition of the proceedings are those identified by me in Brown v Weidig [2023] NSWSC 281 at [23]-[66] and elaborated by Meek J in Dayman v Dayman [2024] NSWSC 838 at [71]-[106].

Those cases draw heavily upon the judgment of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693G-694E as developed in the judgment of the Full Court of the Supreme Court of South Australia in Jones v Dodd (1999) 73 SASR 328 at [43]-[51], the judgment of Doyle CJ in In the estate of Jones (Deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458 at [29]-[32], the judgment of Nicholson J in State of South Australia v Smith (2014) 119 SASR 249; [2014] SASC 64 at [22]-[23] and [34] and the judgment of Sackar J in White v Williams (2019) 99 NSWLR 539.

As has been noted, the starting point is to recognise that there is generally no property in a dead body of a human and that, in the determination of a dispute about disposal of a body, there is a strong public interest element that may prevail over private claims of any type.

The task of the Court is generally to make an evaluative judgement 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: Dayman v Dayman [2024] NSWSC 838 at [106], citing White v Williams (2019) 99 NSWLR 539 at [114].

The purpose for which the Court’s jurisdiction exists governs its exercise. It exists for the purpose of facilitating, so far as may be reasonably practicable, an orderly disposal of the mortal remains of a person whose dignity, as a person, should be respected.

Respect ordinarily requires that, so far as may be reasonably practicable, consideration be given in a timely and empathetic manner to the wishes or preferences of the person and the person’s “significant others” (including, particularly, members of his or her family, however defined) to which the person belonged. The concepts of “personhood”, “respect” and “belonging” are of central concern.

In all decision-making the central personality is the deceased, recognising that he or she must be taken, prima facie, to have lived and died in community with others with whom he or she may have shared perspectives on life, death and an afterlife.

Because the deceased is the focal point for decision-making his or her perspective should ordinarily, subject to practical constraints, prevail at the intersection between his or her wishes or preferences and those of any community to which he or she belonged.

I repeat what a wrote in Brown v Weidig at paragraphs [36]-[38], [60]-[61] and [63]:

The factors for consideration identified in this extract dovetail with Meek J’s description, in Dayman v Dayman [2024] NSWSC 838 at [93]-[94], of the Court’s approach to an interlocutory application for orders regarding the disposal or internment of a deceased person’s remains or the distribution of ashes:

At each stage of proceedings regarding the disposal of a dead body or ancillary questions the Court is called upon to manage a process with prudential wisdom as an aspiration.

The present proceedings illustrate problems that arise when decisions about the orderly and respectful disposal of a body are diverted by collateral disputes grounded upon complex, dysfunctional informal social arrangements, bitter personal relationships and rivalries, and the want of a will or other formal expression of a deceased person’s testamentary intentions.

A person’s prospective funeral arrangements should not, of course, govern whether or not to embrace the formality of a marriage or even the making of a will; but the absence of a marriage or a will can involve the estate of a deceased person and his or her family (however defined) in transaction costs (economic or otherwise) if he or she dies in the midst of social disharmony and trauma.

The young woman who is the central personality in these proceedings lived a hard life and died in controversial circumstances just as hard. Her life was attended by domestic violence the marks of which the Coroner observed on her body. She lived the life of a prostitute on call in country NSW, routinely exposed to the use and abuse of alcohol and drugs. She looked to her parents for respite and for the care of her children. She died in hospital soon after family members found her hanging in their backyard late at night after a tumultuous argument with the second defendant.

Whether or not the deceased and the second defendant were in a de facto relationship of the type recognised by law (ironically, a legal category governed by statute), they were in some type of relationship. Although the second defendant hotly disclaims the office, and takes offence at its attribution to him, the evidence marshalled against him by the deceased’s biological family, if accepted, would justify a finding that he occupied the office of her pimp, looking to her for both sex and money. On the other hand, her biological family is deeply sceptical, if not offended, by evidence of the second defendant, his father and friends which, if accepted, would justify a finding that she was besotted with the second defendant, emotionally committed to him. He, for his part, appears to have lived a hard life no less than the deceased. They both had personal experience of life in gaol.

It is not necessary for the Court in these proceedings to choose between the competing narratives about the relationship between the deceased and the second defendant, or the circumstances of her death, still less the ancillary narratives about personal relationships within the biological families of the deceased and the second defendant. The proceedings have been conducted on the agreed basis that no final determination would be sought, or made by the Court, attributing personal responsibility to any person for the death of the deceased. I do not intend, by this judgment, to depart from that agreement.

What can be said is that, living temporarily in a shed at the back of her parents’ house and with her children in the care of her parents, the deceased was dependent upon her parents and, quite possibly, her siblings generally.

Her entrustment of the ashes of her still-born child “Angel” to her sister, the third defendant, points in the same direction. So too does the support of the deceased’s children for the case advanced by their biological family.

Although the second defendant says that he had a good relationship with the children, he was not their father; their evidence is not supportive of his assessment of their personal relationships; and he has no ongoing relationship with them.

However close the second defendant may have been to the deceased in life, and however much he may mourn her death, and fear for the fate of her spirit (as he says he does) if she is not afforded a burial on country as proposed by him, his loss of her companionship and anguish consequent upon her death is more than matched by that of her biological family.

It comes as no surprise that in these proceedings, as is commonly the case in proceedings of this nature, one side of the dispute favours cremation and the other favours burial, each calling in aid evidence of statements attributed to the deceased, and evidence of cultural customs and traditional systems of belief.

A “Guide to Respecting Practices and Beliefs of Indigenous Australians” published by the State in December 2018 records the following statement:

In its text, the Guide draws to attention a need to respect and understand “the cultural wishes of the deceased person”, noting the following:

The Guide is consistent with the evidence adduced in these proceedings and with a perceived need to accommodate the particular preferences of each individual living and dying within an Indigenous community.

Viewed as a whole, the evidence in this case tends to suggest that the deceased’s life took her on a journey that encountered the different norms of two Indigenous communities, that of her biological family and that of the second defendant’s biological family. Her closest connection appears objectively to have been with the community of her biological family, a connection never severed. To the extent that cultural or spiritual factors might be material to a determination of what should happen to her body, that connection is more certain than any connection she may have had with the second defendant’s community.

The fact that there is a conflict in the evidence about the deceased’s personal expressions of her preferences for a funeral is not altogether surprising. She may have coloured her statements to accommodate the views of each audience whilst in their midst. That is not an uncommon feature of cases involving expressions of testamentary intention.

Weighing in the balance the factors identified in Brown v Weidig as material to an exercise of the Court’s discretion about the determination of the dispute between the deceased’s biological family and the second defendant about disposal of her body, decisive factors in favour of the biological family are the long established, and enduring, relationship she had with her family; the close bonds she shared with her children, albeit that they were in the care of her parents; the preferences of the children as her descendants; and, critically, the evidence that, in life, she had chosen cremation for her stillborn child and, in death, entrusted those ashes to her sister in the confidence that her ashes would join those of her baby in death.

These intangible factors are reinforced by evidence of the deceased’s biological family that they are ready, willing and able to arrange, and to fund, cremation of her body if it be released (as can be arranged by the State) into their custody.

The logistics favour the biological family given their preparedness to undertake to the Court that, at their own expense, they will move expeditiously to have the deceased’s body cremated. I am not confident that the second defendant can reasonably be expected to have the resources, or will, to arrange for a burial, let alone a funeral involving participation of the deceased’s family as may be required.

A measure of the biological family’s commitment to an orderly and respectful disposal of the deceased’s body is their commitment to fund her cremation and a funeral. In the course of his final submissions the second defendant, by contrast, submitted that the cost of a burial of the deceased’s body should be met by the State, not him. His hesitancy in accepting a personal responsibility for funding the funeral arrangements upon which he insists points away from adoption of his proposed funeral arrangements.

For these reasons, I propose to make orders of the nature sought by the deceased’s biological family upon their undertaking that they will proceed with due diligence to have the deceased’s body cremated at their expense.

In the circumstances of this particular case, I do not propose to make an order compelling the deceased’s biological family to give notice of the deceased’s funeral arrangements to the second defendant or to involve him in those arrangements. What, if any, notice of developments is given to him is left to the collective judgement of the family. The nature of the personal relationships between the parties, if only related to the circumstances of the deceased’s death, do not lend themselves to ongoing contact in an environment of peace or harmony.

During the course of the hearing of the proceedings the second defendant expressed anguish about a sense of personal responsibility for the fate of the deceased should he not be able to have her buried on country and according to custom as he perceived to be her wish. If he is to find peace in light of the deceased’s cremation, he must find it within himself, having informed the Court of the deceased’s wishes and preferences as he remembers them. He bears no responsibility for the deceased’s cremation against his wishes. In the nature of these proceedings, that is a responsibility borne by the Court in making an evidence-based decision according to legal principles.

Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made, and obtaining confirmation of the undertaking to be given to the Court by or on behalf of the first, third and fourth defendants, I propose to make orders to the following effect:

The fact that no orders are to be made as to the costs of the proceedings reflects a proposal made by the State at the commencement of the hearing and adopted by the other parties to the proceedings.

As explained in Brown v Weidig [2023] NSWSC 281 at [83], if I were to be called upon to consider the question of costs, I would be minded to apply a general rule applied in protective proceedings; namely, that costs do not routinely “follow the event” but are generally awarded, or not, in response to the inquiry: “What, in all the circumstances, is the proper order for costs that should be made?”: Small v Phillips (No 3) [2020] NSWCA 24 at [2]. That approach is calculated to accommodate the purpose of the jurisdiction exercised by the Court and the public interest imperative attending the proceedings.