Brown v Weidig

In these proceedings, the Court must decide what, if any, orders can and should be made to facilitate disposal of the body of a young, single adult male (aged 23 years) who died by suicide, without forewarning or explanation, intestate, without issue or assets, living in the community of a dysfunctional family, resident in geographically separated parts of the State of New South Wales, with a mixed cultural heritage, and torn between the divergent cultures of his estranged parents.

The plaintiff, the father of the deceased, is a man of Aboriginal descent who lives in the vicinity of Taree in regional New South Wales and self identifies as a member of a local Aboriginal community.

The defendant, the mother of the deceased, is not of Aboriginal descent. Her antecedents are European. She lives in the vicinity of Sydney.

The deceased and all members of his family were born in Australia. The deceased was born in Taree.

Neither of the deceased’s parents is wealthy. The plaintiff is the recipient of a disability pension. The evidence is silent as to the means of the defendant, but she required the assistance of family to fund a funeral for the deceased.

The current relationship of the parents is nothing short of toxic. It is not necessary, or perhaps wise, to explore reasons for this in detail. Following the death of the deceased there are five remaining children born to their relationship. The deceased was the youngest of their children. The surviving children are now aged between 26 and 33 years or thereabouts. The plaintiff has re-partnered.

The estrangement of the parents, now of long duration, has been accompanied by allegations of domestic violence against the father and reciprocal allegations of poor parenting, the truth or fairness of which I am in no position to determine with any degree of certainty.

The hearing of the proceedings occupied a short time on each of two separate days (a Friday and a Monday). On the first day the defendant was represented by a plainly distressed daughter (the second youngest of the parties’ children), a sister of the deceased, whose deep emotional pain was on display, as was an entrenched, passionate resentment of her father. On the second day, the defendant was represented by herself, the same second youngest child and another daughter, her second eldest child.

On the first day the defendant remained in contact with her younger daughter by telephone during the hearing. On the second day she accompanied both of her daughters to Court and, at times, spoke for herself. She is a physically frail person but, when she spoke, she spoke sensibly and reasonably, all the while containing her grief. She presents as a person who has experienced a hard life, sustained by the love of her children and comforted by memories of the deceased.

The plaintiff has been represented throughout the proceedings by a solicitor and counsel. He did not attend the hearing personally. Counsel took instructions from his instructing solicitor, remotely, during the course of the hearing. I acknowledge the assistance of counsel. The plaintiff’s written submissions were well-researched and comprehensive.

The deceased’s sisters are divided in their support for their parents. The two who accompanied the defendant to Court support her cause. Their older sister supports the plaintiff’s cause. The deceased’s two brothers appear to have stood apart from the fray, at least as regards these proceedings.

The hearing was conducted in an informal manner. The plaintiff presented several affidavits and written submissions. The defendant presented an assortment of witness statements together with other documents, including family photographs and a selection of toxic text messages exchanged by family members after the death of the deceased. In the days following the hearing both parties tendered additional evidence, via email, bearing upon the text messages. No oral evidence was taken. No cross examination was sought or occurred. Both sides assisted the Court with an explanation of events, past and prospective, not explicit in the written evidence.

The immediate problem that has given rise to these proceedings is that the deceased’s body is currently in storage at a funeral home awaiting resolution of a dispute between his parents about what should be done with the body.

A court-ordered mediation was unsuccessful in charting a way forward.

By private arrangement between the funeral home and the plaintiff, consequent upon intervention by the Court on an interlocutory basis, storage costs are being met by the plaintiff personally. The defendant and the daughters who support her have informed the Court that they have paid the funeral home (where the deceased’s body remains in storage) for the cost of a cremation that they had planned but which has been as deferred pending the determination of these proceedings.

There are several interlocking issues that present themselves at the forefront of the parties’ forensic contest. Those issues appear largely to be the product of the family’s dysfunctional personal relationships.

The first issue is whether the deceased should be buried or cremated. The plaintiff wants a burial. The defendant wants cremation. Their differences about this are deeply entrenched. The plaintiff relies heavily upon his desire to conform to his understanding of local Aboriginal customary law, something of great importance to him and his branch of the deceased’s family. The defendant relies heavily upon her close personal connection with her son and a desire, shared by family members close to her, to have him in close proximity to her or in a place meaningful to her.

The second issue is location: where should the deceased’s remains (whatever their form) be located? The plaintiff contends for a cemetery in the vicinity of Taree, on or proximate to ancestral Aboriginal land. The defendant contends for Sydney. Each party favours a location convenient to self. Their differences are, yet again, deeply entrenched.

The third issue is access. The plaintiff favours a publicly accessible gravesite in the Taree region, but distance from Sydney is a barrier for the defendant. The defendant’s preference is to take control of the deceased’s remains; have him cremated; and retain or scatter his ashes.

The plaintiff has sought to accommodate the defendant’s concern about distance by an offer of financial assistance with travel expenses for a limited period of time. The defendant has sought to accommodate the plaintiff’s concern about access (and location) by submitting to an undertaking to the Court that, should she be allowed to have the deceased’s body cremated, she will share a divided one half share of the ashes with the plaintiff, allowing him, should he wish, to return remains of the deceased to country with traditional Aboriginal rites adapted to the circumstances. During the course of the hearing the plaintiff rejected the proposal for a sharing of ashes, maintaining his claim for a burial on country with full traditional rites as he perceives them to be.

A fourth issue which might have been of significance is whether there should be any (and, if so, what) memorial to the deceased following disposal of his body. The plaintiff proposes that the deceased’s grave be identifiable. The defendant proposes that the deceased’s ashes be held by her in a convenient way, yet to be decided, or scattered in a location meaningful to her and those of her children close to her. Neither party responded to the Court’s invitation to address this issue and, so, I leave it aside.

In anticipation of the deceased’s body being cremated (having been formally released into her custody by the Coroner) the defendant held a funeral service for the deceased (at the funeral home where his body is presently in storage) to the exclusion of the plaintiff and his family.

No application has been made to the Court, upon an exercise of probate jurisdiction, for a grant of administration of the deceased’s estate. In circumstances in which the deceased died without any identifiable property such an application is unlikely to be made.

Nor is there any need for such an application to be made. The Court has jurisdiction, without a grant of probate or administration, to make orders governing disposal of a dead body. That jurisdiction is commonly now described as “inherent”. It does not fit conveniently within the various heads of jurisdiction conferred upon the Court by the New South Wales Act 1823 (Imp), the Third Charter of Justice promulgated under that Act and the Australian Courts Act 1828 (Imp), the effective operation of which has been continued by the Supreme Court Act 1970 NSW, section 22. That is because the structure of the Court upon its establishment did not exactly mirror English institutions or embrace a system for the administration of justice that privileged church courts in dealing with matters of spiritual concern. Nevertheless, the Court’s jurisdiction may properly be regarded as incidental to the Court’s establishment as a superior court of record responsible for the administration of justice within NSW: section 22. Whatever the historical foundations of the jurisdiction it is supported by section 23 which provides that “[the] Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”.

The plaintiff contends that the starting point in analysis of a dispute relating to the disposal of a body is that “there is no property in a dead body”. That is commonly taken to be a convenient starting point, but it is not without its own complexities, as the leading Australian case of Doodeward v Spence (1908) 6 CLR 406 illustrates. In some circumstances the law may protect the lawful possession of a corpse or body parts.

The significance of the proposition that there is no property in the dead body of a human is, in my opinion, 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.

By analogy with the Court’s protective jurisdiction (as explained by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258 by reference to Lord Eldon’s judgment in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243) the jurisdiction of the Court might reasonably be said to be “founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them”.

The purpose for which the 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” so far as may be known, taking into account the mores of any community to which the person belonged. The concepts of “personhood”, “respect” and “belonging” are of central concern.

In contemporary Australian society the law governing the disposal of a dead human body occupies a unique space on the periphery of the law of succession. Viewed through the prism of an exercise of the Court’s jurisdiction it occupies a gap between the protective and probate jurisdictions. It is ancillary to both and not entirely part of either.

A person may experience life and death without recourse to any form of proceedings in the Court, the services of which are available if required and the decisions of which inform the community’s understanding of the law.

Nevertheless in the course of an ordinary life and death a person may encounter, in turn, the protective, probate and family provision jurisdictions of the Court as incapacity for self management precedes death and succession to property.

The protective jurisdiction privileges the perspective of a vulnerable person, attending to both the welfare of “the person” and his or her “estate” (property).

The probate jurisdiction attends principally to the identification, collection, management and distribution of a deceased person’s estate, but it also accommodates “the person” in recognising the role an executor or administrator may play in management of funeral arrangements and in the appointment of a testamentary guardian for children. It aids an orderly transition of the affairs of a person, commencing with a focus on the testamentary intentions of the deceased and shifting to the entitlements of beneficiaries.

The family provision jurisdiction is available to moderate administration of a deceased person’s affairs in a case in which, viewed through the prism of a wise and just testator and community standards, adequate provision has not been made for the proper maintenance, education or advancement in life of a person to whom the deceased owed a duty to make testamentary provision.

Each branch of the Court’s jurisdiction is governed by the purpose for which it exists. The Court’s inherent jurisdiction to resolve a dispute about the disposal of a dead body is equally governed by its purpose.

The law governing the disposal of a dead 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. The Court’s jurisdiction is available if, in a particular case, a problem needs to be solved by an independent adjudication. For the most part, in the ordinary course, the law of succession provides a template to guide decision making without recourse to the Court.

The law allows a person to plan for the winding up of his or her affairs after death but provides default settings if plans are not made or they miscarry and, in any event, it looks to the living to carry testamentary arrangements of all kinds into execution.

Ultimately, in the absence of legislation governing the outcome of a case, the Court is required, in the determination of a dispute as to who has carriage of disposal of a body, to exercise a discretion taking into account a range of factors (depending upon the particular circumstances of the case and unable, prudently, to be stated exhaustively in the abstract) that may include:

Although not without criticism (as illustrated by Kate Falconer in her paper, “Australian Burial Law 25 Years on from Smith v Tamworth City Council” (2022) 96 ALJ 581), the leading case in New South Wales remains Smith v Tamworth City Council (1997) 41 NSWLR 680, in which Young J set out, at 693G-694E, several propositions now commonly taken as guidelines to decision-making by a court rather than rules of law governing rights of parties.

His Honour summarised in 15 propositions what he described as “the current legal position with respect to the right of burial in New South Wales” (a topic broader in ambit than disposal of a dead body):

In the context of the present proceedings, in which probate law and the law governing administration of a deceased estate offer no clear solutions, the discretionary nature of the court’s jurisdiction is highlighted. Proposition 6 is, perhaps, the most material of Young J’s propositions here, pointing, as it does, to “the practicalities of burial without unreasonable delay” being a decisive issue. Proposition 8 is controversial in the current proceedings. The defendant accepts that cremation is “equivalent” to burial. The plaintiff contends otherwise, at least in relation to his perception of his community’s local Aboriginal custom. Both sides have supported their particular views by reference to opinions expressed by responsible and thoughtful Aboriginal people.

Although dressed in the garb of legal rules, the propositions set out in Smith v Tamworth City Council are better understood as guidelines for decision-making, and management by the Court of disputes, about disposal of a dead body.

That is the way they have generally been applied since at least the judgment of the Full Court of the Supreme Court of South Australia in Jones v Dodd (1999) 73 SASR 328.

The judgment of Perry J (with which Millhouse and Nyland JJ concurred) in that case invited a flexible approach to an exercise of the Court’s jurisdiction. He addressed Young J’s judgment in Smith v Tamworth City Council in terms that included the following (omitting citations) at 73 SASR 328 at [43]-[51]:

It is not necessary in these proceedings to explore beyond disposal of a body (as Young J did) “rights” which might govern management of a grave. If given carriage of the disposal of the deceased’s body each party to these proceedings will be at liberty to make appropriate arrangements with third parties, subject only to compliance with any orders made by the Court regulating disposal of the body by burial or cremation or legislative constraints, as the case may be.

A more recent analysis, following Jones v Dodd, that has commended itself to several judges throughout Australia is found in the observations of Nicholson J in State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64 at [22]-[23] and [34]:

I take the reference here to “common law principles” to refer to the general law encapsulated in Young J’s propositions rather than rules of law developed specifically in the English Courts of Common Law or legislation. Although his Honour cited observations made by common law judges, his propositions draw heavily upon probate law and the law governing the administration of a deceased estate, both historically an amalgam of the Court’s “inherent” ecclesiastical jurisdiction (as the probate jurisdiction was known to the extent conferred on the Court at the time of its establishment) and the equity jurisdiction.

Nicholson J’s formula for “the proper approach” to the determination of a “burial dispute” has provided a convenient formula for decision-making by judges:

It highlights the discretionary nature of the Court’s jurisdiction and places it within the context of the fact sensitive circumstances of each particular case. To my mind, it also invites attention to the purpose served by an exercise of the Court’s jurisdiction.

The necessity for such an approach is a product, in part, of a realisation by judges of what is required of them in serving communities with increasingly divergent cultural traditions.

Upon a consideration of cultural or spiritual factors material to how a deceased Aboriginal person lived life, guidance might be taken from the judgment of Sackar J in White v Williams (2019) 99 NSWLR 539 dealing with a man who died intestate, survived by his mother, his children and the children’s mother, who had been his de facto partner at various times, leaving no assets and no likelihood of an application for letters of administration being made.

It is sufficient for present purposes to adapt the headnote to the judgment in the following terms:

Sackar J (at [22]-[23]) followed Campbell J in Darcy v Duckett [2016] NSWSC 1756 at [27] who, in turn, followed Nicholson J in South Australia v Smith and earlier observations to similar effect made by Doyle CJ in In the Estate of Jones (deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458 at [29]-[32].

In Dodd v Jones Doyle CJ wrote the following:

Courts have thus generally accepted that, prima facie, rules governing an exercise of probate jurisdiction in the administration of the estate of a deceased person (themselves often rules of practice rather than rules of law) provide practical guidance in recognising a “right”, “obligation” or “privilege” associated with identification of a person to have carriage of disposal of a body.

There has been a shift away from rights-based jurisprudence towards the management of problems in the absence of consensus within a deceased person’s community. That shift is marked by the evolution of judicial thinking in a multicultural society.

In a non-contentious environment the orderly disposal of a dead body by reference to a will (which might nominate an executor even if, contrary to usual practice, it does not dispose of property) or, in the absence of a will, by reference to the statutory order for the distribution of property on an intestacy is a convenient and practical means of proceeding. That is because, if a will exists, it might ordinarily be expected to name an executor (thereby evidencing a choice made by the deceased) or, if there is no will, the rules of intestacy might provide a convenient order of priority in any event and might represent the choice of a person who has elected not to make a will.

Using the law of probate and administration of estates as a guide to decision making in a non-contentious environment offers for those who temporarily have custody of a body an objective standard against which, in real time, to measure the authority or propriety of a person who claims an entitlement to deal with the body. In the absence of a competing claim to the body, it may protect the custodian of a body from criticism or complaint. In the midst of competing claims to a body, it may provide a foundation for the custodian to apply to the Court for directions, joining competing claimants, on an application analogous to a claim for interpleader relief.

In practice a further advantage of using the law of probate and administration of estates as a guide to decision making in aid of an orderly process in the disposal of a body is that a person who has, or is most likely to obtain, authority to act as the deceased’s legal personal authority is likely to have ready access to estate assets for the purpose of funding the process of disposal or satisfying a claim for indemnification for expenses incurred in the process.

Although convenience often attaches to use of the law of probate and administration of estates as a paradigm for decision making, a court is not obliged to employ it if the administration of justice in a particular case points in another direction. What is ultimately required is a decision, informed by practical wisdom, which allows a body to be disposed of in an orderly way with as much respect as may be possible for the dignity of the deceased and those of his or her community, or (as in this case) his or her communities, who mourn a death and yearn to remember a life.

The necessity for the Court’s jurisdiction to be and remain flexible is reinforced by changes in the way members of contemporary society live and die in community. Family relationships no longer necessarily conform to blood lines or formal marriages that once informed the concept of a “next of kin”, an expression often now less apt than that of the ubiquitous “significant other”. Common deployment of an “informal will” (able to be admitted to probate under section 8 of the Succession Act 2006 NSW) might also call into question the primacy of even a formal will. A person might record his or her testamentary intentions in a variety of ways falling short of a duly executed formal will. In adjudicating a dispute about disposal of a dead body the Court has to remain alive to these and other possibilities, taking the deceased and his or her community as they are found.

In a case such as the present, the general law governing grants of probate and administration and the management of property in the administration of a deceased estate offers little assistance as to how the Court’s jurisdiction should be exercised. The deceased left no will of any description, formal or informal. Under the current rules of intestacy (found in Chapter 4 of the Succession Act 2006 NSW) his parents would rank equally as the persons entitled to his estate, had he left any. They have very different perspectives of the problem to be solved in these proceedings and very little capacity, or inclination, for engagement in planning or enjoying the deceased’s legacy.

In any event, too slavish an adherence to technical requirements of the law of probate, the administration of estates or, it might be said, family law in contested proceedings about the disposal of a dead body runs a risk of diverting the Court, and warring parties, from the purpose of the Court’s jurisdiction into unresolvable, collateral disputes about the validity of a will, or the existence or otherwise of one or more de facto relationships, for example. It is important that everybody remain focused on why the Court’s jurisdiction exists and how it can best be exercised.

As recently observed by Livesey P and Lovell JA in Marshall v Elson [2023] SASCA 1 at [59](7):

For completeness I note that the plaintiff has not framed his claim by reference to Part 4.4 (sections 133-135) of the Succession Act 2006, which empowers the court to make a discretionary “distribution order”, varying the general intestacy rules for the distribution of property, in relation to the intestate estate of an indigenous person, taking into account “the laws, customs, traditions and practices of the indigenous community or group to which” the deceased belonged: Cf, Re Estate Wilson, Deceased (2017) 93 NSWLR 119.

To have done so would not have changed in any material sense the nature of the discretionary judgement to be made in the present proceedings. Nor would it have limited, or enlargened, the ambit of the court’s discretion. The parties have, from different perspectives and with different degrees of emphasis, each addressed Aboriginal customs so far as they have perceived them to be material to the circumstances of the deceased, his family and his broader community.

The plaintiff is adamant that the custom of his region, if not throughout Aboriginal Australia, requires that the deceased, as a local Aboriginal man, be buried on country with ceremonial rites of passage directed to such a burial. His case is not without evidentiary support. The defendant maintains that Aboriginals can, and do, use alternative means to disposal of a body, including cremation. Her case is not without evidentiary support. Both parties have provided evidence from persons of Aboriginal heritage bearing on the topic.

For the purpose of these proceedings, and despite claims and counterclaims about the nature and viability of the deceased’s family relationships, I accept that the deceased had a loving relationship with both his parents and with all his siblings.

I also accept that there is evidence on both sides of the record of oral statements by the deceased which, if viewed in the abstract, can support either parent’s case. I am not satisfied, however, that I can act on that evidence as a reliable expression of the wishes and preferences of the deceased, one way or the other, about funeral arrangements or the passing of his spirit. I do not exclude the possibility that, in a dysfunctional family setting, he may have said different things to different people at different times in order to engage with family or to buy peace.

I accept that the deceased was genuinely proud of his Aboriginal heritage through the paternal line, but he was equally proud of his mother and her European heritage. She imagines her heritage as harking back to Vikings. She is as proud of that heritage as the plaintiff is of his Aboriginal heritage.

Neither parent should be denied an opportunity to grieve their loss of the deceased or to seek closure in the proximity of a resting place chosen for his mortal remains.

These proceedings provide no occasion to set one culture against another as if necessarily inconsistent. To endeavour to resolve the parties’ forensic contest within such a framework would not, in my opinion, be to accord to the deceased as an autonomous person, or to his family as a whole, or in its factional parts, the respect required for a young man who belonged to them all and is universally mourned.

In logistical terms, an officer of the funeral home where the deceased’s body is currently in storage favours cremation because, he contends, disfigurement of the deceased’s body (as a result of his fateful standing in the path of a train) and natural deterioration of the body since death do not sit comfortably with burial rights in which the body would be exposed to view. That is not determinative, however, because the plaintiff contends that, in a manner consistent with Aboriginal custom, the deceased can be buried in the body bag he now occupies.

The manner of the deceased’s death and the state of his mortal remains demonstrate a need, on any view of the parties’ disputation, for adoption of a solution adapted to the circumstances of the case rather than either party’s preferred solution.

Although I accept as genuine the plaintiff’s offer to provide financial assistance for the defendant, and those of their children who support her, to visit the grave site of the deceased if he is buried on country, I am deeply doubtful whether such an offer, if accepted, could produce harmony where none presently exists or is even remotely in prospect.

A solution to the problem raised in these proceedings requires that the plaintiff and the defendant (and other warring family members) be permitted to live in separation rather than within a legal framework that might require ongoing supervision by the Court.

That solution, in my opinion, is to allow the defendant to proceed with cremation of the deceased’s body subject to her undertaking to the Court to share his ashes with the plaintiff should the plaintiff, upon reflection, want to have ashes to dispose of on country or as he may otherwise choose.

A cremation followed by a distribution of ashes amongst the family of the deceased, rather than a burial, is similar to the outcome that finally emerged, after multiple appeals, in the South Australian Supreme Court in Marshall v Elson [2023] SASCA 1; [2023] SASCA 3; and [2023] SASCA 4. The similarity does not govern the outcome in these proceedings, but it does confirm that an available solution is a cremation coupled with a sharing of ashes even in hotly contested proceedings.

Before making orders disposing of these proceedings I propose to allow the plaintiff an opportunity to elect whether or not to receive some of the deceased’s ashes.

In disposition of the proceedings I will, in any event, make orders to the following effect:

If the plaintiff elects to receive some of the deceased’s ashes, I will condition the terms of those orders upon the defendant’s undertaking to the Court that she will cause the funeral director in charge of the deceased’s cremation to distribute the deceased’s ashes between herself and the plaintiff in equal measure.

I will allow the plaintiff a reasonable, but short time to make his election. As both parties have reminded me, time is of the essence having regard to ongoing deterioration of the deceased’s body and a need for closure.

As presently advised, I propose to make no orders as to costs. That said, 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 “follow the event” but are awarded, or not, in response to the inquiry, “What, in all the circumstances, is the proper order for costs that should be made?” That approach is calculated to accommodate the purpose of the jurisdiction exercised by the Court and the public interest imperative attending the proceedings.

On 29 March 2023 Lindsay J made notations and orders to the following effect in disposition of these proceedings: