[1999] SASC 125
Joseph v Dunn (2007) 35 WAR 94[2007] WASC 238
Keller v Keller (2007) 15 VR 667
Judgment (6 paragraphs)
[1]
Judgment
These proceedings arise in relation to the death of a child who was born on 17 January 2022 and died in mid-January 2022.
The plaintiff, AG, is the biological father of the child concerned and the first defendant, JB, is the biological mother of the child concerned. The plaintiff and first defendant are no longer in a relationship.
The dispute concerns which of the plaintiff or first defendant should have carriage of the funeral and burial arrangements for their son.
The second defendant, the Health Administration Corporation, filed a submitting appearance in these proceedings.
[2]
Background
The plaintiff and first defendant entered a relationship around June 2020. They lived together intermittently between August 2020 and August 2021. The precise dates and time periods of their relationship and cohabitation are not agreed between the parties.
At the time they commenced their relationship, the first defendant was pregnant with her daughter who was born on 22 December 2020. That child was not the biological child of the plaintiff. JB has three other children, one adult child who gave evidence by way of an affidavit in these proceedings and two other children (of whom she shares custody with their birth fathers).
The plaintiff and first defendant's relationship involved it seems repeated arguments which escalated on 10 August 2021, resulting in an Apprehended Domestic Violence Order ('ADVO') being made against the plaintiff for the protection of the first defendant on 12 August 2021. The plaintiff also contacted Singleton Police on 12 August 2021 in relation to the evidently tumultuous relationship between plaintiff and first defendant.
Although there is some disagreement over whether the first defendant returned to live with the plaintiff following 10 August 2021, both parties agree that the first defendant had moved out by September 2021 (Court Book ('CB') p 196, Plaintiff's Written Submissions [11] and CB p 216, First Defendant's Written Submissions [20]). Whilst contact between the parties may or may not have continued, there is ultimately no dispute that the plaintiff and first defendant were not in a relationship at the time that the deceased child was born on 17 January 2022.
Prior to his birth, it appears that the child was diagnosed with having suffered an aneurysm in utero and although surgery was recommended the child was given a very negative prognosis. The child was delivered in the morning of 17 January 2022 at John Hunter Hospital in Newcastle and was transferred to Westmead Children's Hospital in Sydney via airlift later that evening. Surgery was performed on 20 January 2022. Despite best efforts, the child died in the days following. The plaintiff asserts the child died on 22 January 2022 and the first defendant asserts the child died on 21 January (CB p 196, Plaintiff's Written Submissions [1] and CB p 213, First Defendant's Written Submissions [2]). Nothing turns on that issue.
[3]
Legal Principles
This Court has inherent jurisdiction to determine disputes relating to the burial rights of a deceased per Darcy v Duckett [2016] NSWSC 1756 at [5(1)], Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701.
In Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693-694, Young J set out fifteen principles with respect to the right of burial under New South Wales law, including the principles extracted below.
1. If a person has a named executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased's body, the person named as executor has the right to do so. …
6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue. …
8. Cremation is nowadays equivalent to burial. …
14. The holder of the right of burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.
Rothman J made clear that under the law mother and father will have an equal ranking privilege in Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 at [53].
Where mother and father have equal rights, "the question turns largely to matters of practicalities, paying due regard to the need to have the body disposed of without unreasonable delay but with all proper respect and decency" (Heenan J in Joseph v Dunn (2007) 35 WAR 94 at [21] ('Joseph v Dunn')). See also Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 at [54], [56] and Frail v Shorey [2021] NSWSC 122 at [22].
The wishes and sensitivities of the living close relatives and community of the deceased person are relevant (Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701 at [21]; Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 at [53]), as are emotional, spiritual and cultural factors where present (Jones v Dodd (1999) 73 SASR 328 at [40], [51] ('Jones v Dodd')).
As I observed in White v Williams (2019) 99 NSWLR 539 at [22] and again in Frail v Shorey [2021] NSWSC 122 at [24] ('Frail v Shorey'), the proper approach to such a case involves a balancing of common law principles and practical considerations.
Although it is rare, the court has on occasion made orders as to how the funeral and cremation or burial should be conducted. See, for example, McCredie v Batson [2020] NSWSC 1913 to which the plaintiff referred.
As I stated in Frail v Shorey at [127], the relevant question is not about "who is or was the better parent or which parent has the least flaws". The result is not "a prize for who was the better parent" (Harrison J in AB v CD [2007] NSWSC 1474 at [66] ('AB v CD')).
In that case of Frail v Shorey, I also observed that there are some circumstances where the character of a person may be relevant at [127]:
That said criminality, misconduct or worse associated with the death of a person may require that a person forfeit the right to a grant of administration, In Estate of Crippen [1911] P 108, Re G (1946) 62 TLR 279. No such question arises here.
Of course, accusations of criminal conduct are serious and require proof to a high standard, having regard to the gravity of the matters alleged per Briginshaw v Briginshaw (1938) 60 CLR 336 (s 140 of the Evidence Act 1995 (NSW)).
[4]
Submissions
The plaintiff submitted that he wishes to have the child buried at Sedgefield Cemetery where his brother was buried. He also submitted that he wishes that the child be buried, rather than cremated, due to his Catholic faith. The plaintiff submitted that the first defendant had agreed to a burial prior to 25 January 2022. The plaintiff submitted that it may be appropriate for the first defendant to hold a separate memorial service. The plaintiff also submitted that he would agree to the child being buried at Branxton Catholic Cemetery if the first defendant could not accommodate his wish for the child to be buried at Sedgefield Cemetery. The plaintiff sought orders that he be given carriage of the funeral and possession of the child's body.
The first defendant submitted that the plaintiff was absent during significant parts of her pregnancy and caused significant stress including during the incident that is recorded in the ADVO from 12 August 2021. The first defendant submitted that she wishes for the child to be cremated and to have a memorial in Beresfield Crematorium in Newcastle alongside several members of her family, which is accessible to her.
[5]
Consideration
The resolution of a dispute such as this requires as is obvious the court to have regard to numerous factors. In the present case, spiritual or cultural values are of significance but they are not necessarily determinative. At one level, a dispute such as the current one might be described as unseemly. Whether or not that is apt, there is little doubt that it is sad, indeed tragic. The foundation of the competing arguments here has in my view as its genesis the dysfunctional, fraught and highly volatile relationship between the biological parents.
At the hearing, both the plaintiff and first defendant were briefly cross-examined. The first defendant's older child gave evidence by way of affidavit evidence. In Keller v Keller (2007) 15 VR 667 at [9], Hargrave J commented that in matters concerning burial rights, the Court ought not "embark upon a lengthy adversarial hearing". Other evidence was filed from the plaintiff's parents. These witnesses were however not cross examined.
Both sides make serious allegations against the other of not only disrespectful conduct but physical violence. On one view of the evidence, both sides were guilty of abusive behaviour towards the other. One thing is clear the relationship was extremely short-lived and perhaps while it lasted and at points during it was intense, but it no longer exists and indeed it appears to have been over at the time the deceased was born. I accept that both parties attempted momentarily to console each other having received the very tragic news about the prognosis of their son. There is no doubt both parties are still grieving, especially with this issue unresolved.
Although this is not a case where the plaintiff falls into the category of cases discussed in Frail v Shorey at [127] there seems little doubt that while she was pregnant with the deceased child, the first defendant was subjected to some form of domestic violence which on one view of the evidence appears to have caused bruising to her side. That is corroborated by photographs (CB pp 147, 148), and also the ADVO which was applied for on 12 August 2021. The ADVO at CB p 151 states:
The pair indicate that they have a volatile relationship that regularly deteriorates into intense verbal arguments. This is the first formal report of issues held between them. As a result of their continued confrontations, they have decided to part ways and the [Person In Need of Protection] is in the process of moving out.
In terms of the practicalities that the authorities refer to, it is with some regret that this child died as long ago as 22 January this year. I accept that the parties have in good faith attempted to resolve their differences but are unable or incapable of doing so.
Clearly, with a deceased child who is only 4 or 5 days old at death, there is no estate and no likelihood of any application for a grant of administration in intestacy ever being made. In such a case an approach based on extent of interest or entitlement to apply for a grant takes on an air of unreality. Further, in my view, views expressed by Perry J in Jones v Dodd at [51] and Cummins J in Dow v Hoskins [2003] VSC 206 at [43] which are cited in Harrison J's judgment in AB v CD at [35] and [36] make clear that such a case requires focus especially upon cultural, spiritual, religious and other factors.
The plaintiff purports to be a devout adherent of the Catholic faith. He says he attends church monthly. But notwithstanding his adherence to the faith there are other aspects of his life which on one view are rather an antithesis of that devotion. In addition, the plaintiff relies upon the Canon Law of the Catholic Church in support of the abhorrence to cremation. The first defendant disputes the interpretation of the relevant Canon Law. In my view, in a case like this, the Canon Law in these circumstances is neither conclusive nor determinative of the outcome.
Whoever was right or wrong in the alleged acts of domestic violence, no level of domestic violence is consistent in my view with devotion to any religion including Roman Catholicism. Indeed it is the antithesis of Christian teaching. It is not unimportant that the plaintiff consented in August 2021 to an Apprehended Violence Order. A pregnant woman is entitled to be treated with the utmost respect and cared for accordingly and not to be subjected to any form of actual or threatened violence. Whatever precisely took place in August of 2021 was entirely unacceptable from both parties' point of view.
The plaintiff's brother who sadly died prematurely is buried at Sedgefield Cemetery (outside of Singleton) and the plaintiff's initial claim was that the child be buried there. That was put forward on the basis that his parents could visit the grave site. There is no clear evidence that either of his parents had any relationship whatsoever with the first defendant and it is certainly clear that they never had the opportunity to meet the deceased child. The plaintiff's father's affidavit evidence (which was not subject to cross-examination) was that given certain physical difficulties it would be inconvenient for him to visit Beresfield Crematorium in Newcastle where the defendant wants the deceased child interred. The significance of the father's evidence is to be heavily discounted by reason of the fact that the plaintiff offered by way of in effect an open offer that the deceased child could be buried at Branxton some distance away from where the father lived.
The plaintiff's mother on the other hand purports to give evidence of a conversation with the first defendant which she had with her on 29 January 2022 having been told that the first defendant had changed her desire that the child be buried as opposed to cremated. However, it is clear from what the defendant said to the plaintiff's mother in that conversation that the first defendant at the time was in a state of turmoil and distress and it might be said that at the time did not know what she wanted but had certainly reacted to what she described as "those disgusting messages" she had received from the plaintiff (CB p 116). That is not to say that either of the plaintiff's parents were unmoved at the loss of their firstborn grandchild.
The plaintiff's father says nothing in his affidavit about his faith or spiritual beliefs. The plaintiff's mother likewise says nothing about her spiritual background or culture.
The first defendant on the other hand not it seems because of any religious beliefs wants the deceased child cremated and laid to rest at Beresfield Crematorium. Many of her relatives are interred there including her grandmother, great grandmother and great grandfather and cousins, having been cremated (CB pp 141, 142).
At this stage it would appear that the views of the respective parties are irreconcilable as to the kind of funeral that should happen, where it should happen and how it should happen. There is nothing stopping both parties if agreement cannot be reached of having a service of their own choice in their own time at a location of their choice. Wherever it takes place, it is highly desirable that each is inclined to invite the other, insofar as the ADVO permits.
The cases indicate that this is not a reward or a prize for the best parent but the court is entitled to take into account in the exercise of its discretion not only the beliefs of the parents both cultural and religious but the nature of the relationship or the lack of it. It is also relevant here to observe that the volatility of this relationship meant it seems to me in effect that the bond between mother and child in utero is of some considerable significance. Frankly this cannot be described as a loving couple looking forward to bringing a child into the world and nurturing it as a couple. Although reconciliation is always a theoretical possibility, it seems to me that the plaintiff and first defendant had ended their relationship and in all probability would not have been together if the deceased child had lived.
I acknowledge that the first defendant acquiesced or consented in giving both the deceased child and her daughter born in December 2020 the surnames of both herself and the plaintiff. I also acknowledge that she clearly acquiesced or consented for a Catholic priest baptising the deceased child. That said in my view the bond she had with the deceased child and therefore in all of the circumstances should be respected over and above those of the plaintiff.
In matters such as these, the court exercises a discretion. It is trite to state that the discretion will be exercised on the basis of any relevant factors having accorded each their appropriate weight.
In the judgment of Heenan J in Joseph v Dunn (which is cited by Harrison J in AB v CD at [40]-[41]), his Honour took into account the fact that the deceased young person in that case had a much closer personal relationship with his father prior to his death than he did with anybody else including his mother.
It is hard to imagine a more intimate connection than that of a mother and child in utero.
In light of the above, I would dismiss the Amended Summons dated 1 March 2022 and I would make orders in accordance with the Amended Cross-Summons dated 16 March 2022, paragraphs [1] and [2], namely that the mother, the first defendant, should take carriage of the funeral and burial. I am of course mindful of the ADVO and the fact that the parties tried but were unable to come to some mutually acceptable position, but this situation needs resolution now.
Also in light of their irreconcilable differences, it is not appropriate in my view to make any other orders than those that I propose.
I would invite the parties to prepare short minutes of order to reflect my reasons and I will hear any issues on costs as necessary.
[6]
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Decision last updated: 24 March 2022