52 The father submitted that I should not be satisfied that both he and the mother have equally ranking rights to apply for administration. It was submitted that on the available evidence, the father would be more likely to obtain a grant of administration in circumstances where there are suspicions regarding M's death whilst in his mother's care. According to the father, even if that submission were not accepted, and I was satisfied that each of the parents had an equal right to administration, the issue would turn largely to matters of practicality, paying due regard to the need to have the body disposed of without unreasonable delay, but with all proper respect and decency. This was a test adopted by Martin J in Calma v Sesar (supra). Taking into account the reasons provided by each of the parties, the father submitted that the facts supported the reasons advanced by the father and M's grandmother.
53 In answer to the fact that the mother has already arranged a funeral for the child, the father said that he has visited Palmdale Lawn Cemetery at Gosford and has picked out a plot for his son. He said that he has spoken to Creighton's Funeral Service and has been told that the plot is available and that the funeral service could be organised within 24 hours. The cost of the plot is said to be approximately $2180, which will be shared between his family and the plaintiff's mother's family, as he is a student with limited funds.
54 Over the objections of senior counsel for the mother I permitted limited cross-examination of her on the topic of competing practical considerations. My attention was drawn to In the Estate of Jones (Deceased); Dodd v Jones [1999] SASC 458 at [4] where Doyle CJ noted that cross-examination would not have been helpful. In Keller v Keller [2007] VSC 118, Hargrave J said at [9]:
"[9] The authorities establish that the Court ought not, in an application such as this, embark upon a lengthy adversarial hearing to resolve the various claims and counter claims. This would delay the decision for an unacceptable period whilst the body remained undisposed of. Accordingly, cross-examination will usually be inappropriate."
55 Two principal matters arose during a brief and sensitive cross-examination of the plaintiff. First, the plaintiff insisted that even if her relationship with her fiancé were for some reason to fail, she intended to remain in Sydney. She gave evidence that her disinclination to return to the Central Coast was influenced, in effect, by her desire to become and to remain part of her fiancé's family, whatever may happen to the relationship she had with him, on the one hand, and by her painful and unpleasant experiences on the Central Coast with the members of her immediate and extended family who lived there, on the other hand.
56 Secondly, the plaintiff did not agree with the suggestion put to her that Palmdale was, in effect, the lesser of two evils because it represented what was approximately the midway point between Sydney and the Central Coast. The plaintiff reiterated that without access to a car, any journey by her from Sydney to Gosford was extremely inconvenient and for all relevant intents and purposes impossible. A difference arose between the plaintiff and senior counsel for the father as to a reasonable estimate of the driving time between the two locations.
Consideration
57 The present proceedings are in effect interlocutory. As Bryson J said in Privet v Vovk [2003] NSWSC 1038 at [5]:
"[5] The present proceedings, notwithstanding their form, are essentially interlocutory, and any declaration or direction that I make will have the effect of an interlocutory direction relating to the administration of the estate of the deceased pending a decision of the court as to grant of probate or administration of her estate. A decision on the grant of representation could only be reached after elaborate consideration of issues. Involved in that consideration would be a decision on the validity of the marriage celebrated or purportedly celebrated on 13 June 2003. Both the question whether probate should be granted and of what document and the question whether the marriage was valid are questions which could only be settled satisfactorily by a formal process leading to a judgment having effect in rem so as to bind the whole world. The present hasty proceedings are an altogether unsatisfactory vehicle for coming to a conclusion which would finally bind either the world at large or these parties to any conclusion made in it, and I do not attempt to do so."
58 The present proceedings had to be determined quickly. They came before me on a Thursday. I reserved my decision to the following Monday after an opportunity to reflect over the weekend. I did not have the luxury of a full investigation of the facts. Indeed, many of the facts that are said to be relevantly in dispute may not be determined for many months and probably many years. Some of those facts are beyond the jurisdiction of this Court to determine in any event.
59 Notwithstanding that both the mother and the father of the child conceded that the particular circumstances of this case called for its determination by reference to matters of practicality and convenience, arguments in support of their respective contentions inevitably invited a consideration of significantly more arcane matters such as love, sentiment, grief, responsibility and even anger. It would in my opinion have been curious if these matters had not become prominent in the present proceedings, and wrong to exclude consideration of them when they did. It seems to me to be presently beyond doubt that each of the child's mother and father feels the need to pursue her or his respective claims for relief for reasons not necessarily entirely associated with the ultimate outcome. This is also completely understandable. However, such factors are usually evenly balanced and not productive of satisfying or comfortable persuasion. This case is no exception.
60 One such matter requires specific mention. Portions of the father's affidavit evidence extracted above at par [12] disclosed that he would not be happy for his son to be buried in any cemetery that had a connection to the plaintiff's fiancé or his family. No compelling reasons why the father maintained this attitude were given. Quite apart from the absence of any satisfactory explanation, I would not be prepared to accord any significance to it as a relevant consideration. Emotional, spiritual and cultural factors are relevant but not without limitation. To take account of such a matter would in my view impermissibly enlarge the range of potential considerations beyond matters of practicality, particularly in circumstances where the merits are otherwise evenly balanced. As was the case in Joseph v Dunn (supra), I am satisfied that both the mother and the father have equally ranking rights to apply for administration.
61 Whichever location is chosen for the child's burial, there will be difficulties of access to one or other of the parties and those associated with them. However, at least two things need to be said about this. First, M's parents are still very young. Neither has had a proper opportunity to work or to acquire any financial stability or independence. The father is presently studying year nine at TAFE. He does not own a car and the prospects of him doing so in the near future must be considered doubtful. Although the evidence is somewhat unsatisfactory, the mother's position did not appear to be to be any different. I am not aware that she is currently employed or has any immediate prospect of obtaining employment, and she is also subject to the vicissitudes and uncertainties of public transport. In these circumstances it seems to me that the tyranny of distance that appears to be so important to each of them at this stage of their lives is likely, to some extent at least, to recede as they make their way in the world.
62 Secondly, the distance between the two proposed burial locations is not, in the scheme of things, all that great. In the shadow of their son's recent death, the importance of visits to his gravesite will undoubtedly have been elevated to a level that will recede with the passing of the years. The parents' need physically to pay their respects to the memory of their son will not always be as pressing as it now appears. Nor can there be any guarantee that M's parents will continue to live where they presently reside.
63 Of the several matters to which I have given anxious consideration, one factor appears to dominate all others. The plaintiff has had the primary care and responsibility for her son since his birth. Although the child lived for only 14 months, the bond that must have developed between him and his mother will undoubtedly have been significant. M had a large number of people in his life who loved him, but his relationship with his mother was necessarily unique.
64 The mother gave evidence that prior to M's death, she had not had any contact with the father since the visit at his mother's house when M was about three months old. She said that the father had not had any subsequent contact with M, nor had he given her any financial support. She said that the father had not given her any gifts or other items for their son and had not contacted her to ask if he could visit him. She denied that the father had contacted her on M's birthday. I accept that the father had very limited financial resources.
65 As indicated earlier, there is a dispute about the nature and extent of the father's involvement with M and the quality and quantity of contact that they may have shared. The father was not cross-examined and I did not have any opportunity to assess him or to form any reliable view about him. His own affidavit evidence reveals, however, that his contact with M was extremely limited. In the particular circumstances of this case, that does not strike me as unusual.
66 It is very important to emphasise that the result in this case is not, and should not appear to be, a prize for who was the better parent. It would be difficult to imagine circumstances more difficult for these young parents, each wanting to make a significant contribution to their son's life and upbringing, than the circumstances that confronted the mother and the father in this case. M's premature death has led each of them painfully to reflect upon their respective lives with him, and upon the role played by the other parent in his life. Those reflections will undoubtedly have become afflicted with inaccuracies.
67 M should be laid to rest soon and with him the acrimony that these proceedings have revealed. How he died or in what circumstances is not known to me and cannot yet be ascertained. His mother will not, in my view, return to the Central Coast in the foreseeable future, if she does so at all. Those members of M's family and his friends who live there are in my opinion at the moment better equipped to travel to Sydney in the near future than is the plaintiff to journey to Palmdale. Arrangements are in place for M's burial in Sydney and presumably that can occur this week or at least before Christmas. That is what in my opinion should occur.
Orders
68 I make the following orders: