Brown v Weidig [2023] NSWSC 281 | Case summary

THE NATURE AND PURPOSE OF THE COURT'S JURISDICTION

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: 1. the logistics and available funding for disposal of the body; 2. the wishes or preferences of the deceased, if known; 3. the wishes or preferences of the community or communities, in which the deceased lived (including, but not necessarily limited to, members of family); 4. any cultural or spiritual factors material to how the deceased lived life; and 5. the accessibility of the deceased's mortal remains to those who seek to mourn a death or to remember.
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): "1. If a person has named an 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. 2. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body. 3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so. 4. Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1. 5. The right of the surviving spouse or de facto spouse will be preferred to the right of children. 6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue. 7. 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. 8. Cremation is nowadays equivalent to burial. 9. A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses. 10. A right of burial is not an easement, but a licence: it is revocable once a body has been buried in the licensed plot. 11. The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery. 12. Subject to such by-laws, the holder of the right of burial has the power to decide on the appearance of the grave and headstone. 13. The reasonable cost of a reasonable headstone is recoverable from the deceased's estate. 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. 15. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the right of burial. Whilst useful as guidelines, these propositions are, to my mind, too prescriptive and must yield to the circumstances of the particular case."
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]: [43] In another decision by a judge in the Equity Division of the Supreme Court of New South Wales, namely, Smith v Tamworth City Council, Young J addressed the question [of the right of burial] in the context of a dispute between the biological parents of the deceased person and the deceased's adoptive parents who had erected a headstone on the grave the title to which was registered in the name of one of them. The biological parents sought an order compelling the Council which controlled the cemetery to transfer the plot to them in order for them to erect a headstone of their own choosing. [44] Strictly, the case concerned the rights of the parties to the grave, rather than the question as to how competing claims to exercise the right of burial was to be resolved. Young J found that the right to erect a headstone was the right of the person who owns the burial plot, in this case the adoptive mother. Apart from recognising the right of the biological parents to have access to the grave, Young J dismissed the action. [45] But in the course of his judgment, Young J made an exhaustive analysis of the authorities on the right of burial. After referring to ecclesiastical law cases, he turned to decisions of the common law courts. Following his analysis of the authorities, he comes to a conclusion expressed in these terms: 'It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, [In the Estate of Slattery,] the person with the largest interest will normally be the person who is the one expected to bury the body.' (Emphasis added) [46] I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration. [47] I have already referred to Debelle J's view […] that the principle was that the right of burial applied to the next of kin, in order of their relationship to the deceased. [48] Although support for that proposition was recognised by Young J to be found in passages which he cites from The Law of Cadavers by Percival E Jackson, I do not read his judgment as endorsing that approach, given the fact that when Young J comes to summarise his conclusions, as will have been seen from the passage from his judgment which I have quoted above, he regards the authorities as favouring the view that the right of burial follows "interest", and accordingly, the "person with the largest interest will normally be the person who is the one expected to bury the body". [49] Here, given that there was little or no estate of the deceased, I think that the respondent is right in suggesting that there is unlikely ever to be an application for administration, despite the valiant effort by [counsel for the appellant] to suggest otherwise. [50] Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality. [51] In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question."
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]: "[22] The received view at common law is that there is no property in a dead body; no person is entitled to ownership of a deceased's remains (Jones v Dodd (1999) 73 SASR 328 at [27], Perry J citing Williams v Williams (1882) 20 Ch D 659, 665 and R v Sharpe (1885) 10 CB 776; 138 ER 307). It is usually accepted that, where a deceased has left a will, the executor of the estate has the right to arrange for the burial of the body, or where there is no named executor or no will, the person who is entitled to take out letters of administration of the estate with or without a will annexed has the right (Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 (Young J); Jones v Dodd (1999) 73 SASR 328 at [30]). The common law position was summarised by Young J in the matter of Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 (Young J)): It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, the person with the largest interest will normally be the person who is the one expected to bury the body. [23] In circumstances where a deceased has died intestate, as in this matter, there remains support for the notion that the person eligible to apply for a grant of letters of administration has the right of burial (For example, Meier v Bell [1997] Supreme Court of Victoria (Unreported, Ashley J, 3 March 1997)). However, as noted in the judgment of Perry J (with whom Millhouse and Nyland JJ agreed) in Jones v Dodd (1999) 73 SASR 328, such an approach is problematic in situations where it is highly unlikely that a grant will be sought. Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality (Jones v Dodd (1999) 73 SASR 328 at [50]). … [34] The authorities decided in this State [South Australia], considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded. This was the approach applied, more recently, by this Court in Minister for Families and Communities v Brown & Ors [2009] SASC 86. In that matter, Gray J considered not only which party had a stronger claim under common law, but also the "lifestyle, relationship and practices of the deceased" ([2009] SASC 86 at [31]) in reaching a conclusion as to burial rights."
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: "The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance."
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: (1) When deciding who is entitled to arrange the burial of an Aboriginal person who has died intestate, the court exercises its inherent jurisdiction and makes an evaluative judgment having regard to the factual circumstances and any relevant cultural and spiritual matters. Regard should be had to who might be entitled to take out letters of administration; cultural, spiritual and religious factors; the deceased's own wishes; and the wishes of any living close relatives. (2) There [is] no inflexible rule that priority to apply for letters of administration [determines] who should be entitled to deal with a deceased's remains, particularly where the deceased had no assets and it [is] unlikely that there [will] be [an] application for letters of administration. Relevant religious, cultural and spiritual concerns [can] play a role, and any views expressed by the deceased should be accorded considerable weight. (3) In considering the wishes of the deceased's family, those of his or her children should carry very great weight, particularly where their ability to visit the deceased.
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: "[29] In the end, it seems to me that I am confronted with two fairly clear and opposing claims. One is the claim of a de facto spouse, which has some support by reference to common law principles, and also gets the support of community attitudes that are fairly widespread in Australian society. The other is the claim of the father, which is supported by genuinely held beliefs about aboriginal custom and law, beliefs which should be respected as far as possible. [30] There are a number of cases suggesting that usually the person with the best claim to the letters of administration of the estate of a deceased, who dies without making a will, have the right to determine the place and manner of burial. I refer to two in particular, they are Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680 and Meier v Bell, Butterworths unreported cases, BC9700457. In Jones v Dodd [1999] SASC 125,202 LSJS 102, the Full Court accepted that this was the usual approach. That is, by the usual approach I mean the reliance on these common law principles. But the Full Court did not accept that this was a binding principle to be applied in all cases, especially if there was no likelihood that letters of administration would be obtained: at 111 in particular. Berry J, with whose reasons the other members of the Court agreed, said in particular at 111: 'In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased bearing in mind also any religious, cultural or spiritual matters which might touch upon the matter in question.' [31] To understand that statement in context, it is important to bear in mind that Berry J did recognise that what I might call the common law approach was the usual approach. He merely said it was one not to be rigidly applied. [32] Also in considering that statement, I have to bear in mind that while the wishes and views of the defendant could be classed as religious and spiritual, and perhaps the wishes and views of the plaintiff cannot, nevertheless, the plaintiff's own beliefs have cultural significance because they are beliefs that would be widely shared in contemporary Australian society."
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: "It is not always necessary to resolve all disputes that may emerge on the evidence, and the Court must be mindful that the dignity of the deceased, and the conscience of the community, require that a declaration as to the mode and place of burial be made promptly, albeit with all proper respect and decency for the interests of those involved."
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.

CONSIDERATION

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.

Brown v Weidig

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