Administration Act 1903, s 2, s 4, s 6, s 25, s 45

Cremation Act 1929, s 13

Domicile Act 1981, s 8

Coleman v Shang [1961] AC 481

Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301; [1997] 1 WLR 596

Permanent Trustee Co (Canberra) Ltd v Finlayson [1968] HCA 85; (1968) 122 CLR 338

Wimalaratna v Ellies, unreported; FCt SCt of WA; Library No 5549; 9 October 1984

1 PULLIN J: On 6 March 2002, Ross Vincent Hank Cramley ("Ross") died in a motor vehicle accident in Western Australia. Ross was born on 15 March 1984, and so if he had lived he would have turned 18 today. Ross did not leave a will. He was unmarried and did not live in a de facto relationship, and he had no children. The applicant ("Mrs Burrows") was Ross' mother. The respondent ("Mr Cramley") was Ross' father.

2 Mrs Burrows has issued an originating summons, seeking an order under s 45(1) of the Administration Act 1903 that she have carriage of Ross' funeral and that Ross be buried in a cemetery in Perth. Mr Cramley, on the other hand, seeks orders that he have carriage of the funeral and that Ross be buried in Sydney. Section 45(1) of the Act reads:

"The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require."

3 It could, perhaps, be a matter for debate about whether the section applies in circumstances where there is no will and no grant of letters of administration. I note, however, that if s 45 of the Act does not confer jurisdiction, then jurisdiction is conferred by s 4 of the Administration Act 1903. Section 6 of the Supreme Court Ordinance 1861 stated that the Supreme Court should be a Court of Ecclesiastical Jurisdiction. That section was repealed by s 2 of the Administration Act 1903, but s 4 preserved the former jurisdiction. The burial of bodies was a matter for ecclesiastical courts: see Smith v Tamworth City Council (1997) 41 NSWLR 680 at 685.

5 Mr Cramley and Mrs Burrows were married on 21 September 1983. Ross was born in 1984. The family lived together in Perth, although at times Mr Cramley's work as an engineer took the family away from Australia. They regarded Perth as their home, at least until 1987. In 1987, the couple separated. On 17 February 1989, the Family Court of Western Australia granted Mr Cramley custody of Ross, with Mrs Burrows being granted reasonable access.

6 Ross and Mr Cramley then moved to Sydney, where they lived with Mr Cramley's mother. In 1992, Mr Cramley purchased his own home, and he and Ross lived in that house until 1998. In May 1998, when Ross was 14 years old, he expressed a desire to return to live with his mother, and arrangements were made for him to do that. Ross then lived with Mrs Burrows in Perth and attended the Mt Lawley High School. Ross still maintained close contact with his father in Sydney.

7 In 1998, Mrs Burrows and Mr Cramley attempted a reconciliation. They slept together on one occasion, and a child, Caitlin, was born after that. Mrs Burrows says that Caitlin is Mr Cramley's child. Mr Cramley does not know whether that is so, but he has accepted that he would support Caitlin and Mrs Burrows.

8 In about April 2000, Ross stopped living with his mother and shifted out to live in the home of Sharon Johnston, who was the mother of one of Ross' school friends. In about June 2000, he stopped attending school.

9 In December 2000, Ross returned to Sydney to live with Mr Cramley and his fiancée. Between December 2000 and the date of his death, Ross moved between Sydney and Perth. In that period of approximately 16 months, he spent about 9 months in Perth and the balance of the time in Sydney. When he was in Sydney, he lived with his father, where he kept his belongings. When he was in Perth, Ross stayed with the Johnstons.

10 During this last 16 months of his life, Mr Cramley supported Ross by paying him $300 per week as a living allowance and provided him with a mobile phone. They maintained close contact by telephone when Ross was in Perth. Shortly before Ross' death, Mr Cramley secured a 12-month contract to work in Mexico, and the plan was that Ross would go and live with him in Mexico.

11 Ross established a close relationship with Mr Cramley's mother when he lived in Sydney. His grandmother is now wheelchair bound and would not be able to travel to Perth. She wishes to attend the funeral.

12 Mrs Burrows says that she is not well off financially and would not be able to meet the cost of attending a funeral in Sydney or of making trips to Sydney to visit the grave. She has a sizeable family living in Perth, and I was informed by counsel for Mrs Burrows that many of them wished to attend a funeral in Perth. Mr Cramley says that he would be prepared to pay the airfare for Mrs Burrows and her mother to attend a funeral in Sydney. Mr Cramley says that he would be prepared to pay an airfare for Mrs Burrows to attend in Sydney to visit Ross' grave each year.

13 Both parents expressed the wish to visit Ross' grave on a regular basis in the future. Mr Cramley says that he also has a sizeable family living in Sydney who would wish to attend the funeral.

14 Ross had personal property located in his father's house in Sydney and personal property located in the Johnston's house in Perth.

15 There is no property in a corpse, and a person cannot by will dispose of his or her dead body. Williams v Williams (1882) 20 Ch D 659.

16 After the death of a person, his or her executors have a right to the custody and possession of the body (although they have no property in it) until it is properly buried. Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

17 In Boothman; Ex parte Trigg, unreported; SCt of WA; Library No 990031; 27 January 1999, Owen J held that five propositions enunciated by Young J in Smith v Tamworth City Council (supra) can be taken as representing the law in this State, that is to say:

"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. A person with the privilege of choosing how to bury the body is expected to consult with other stakeholders, but is not legally bound to do so.

3. Where no executor is named the person with the highest rank (right) to take out administration will have the same position (privilege) as the executor in proposition 1.

4. The right of the surviving spouse or de facto will be preferred to the right of children.

5. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue."

18 See also Manktelow v The Public Trustee [2001] WASC 290.

19 Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446 is a case in which, as here, the mother and father were in dispute about where their child should be buried. Martin J said that the Court was not to be assisted by an examination of the care and attention given by each of the parents to the deceased while he was alive. See p 449.

"The right to possession of a dead body runs with the duty to dispose of it. Each parent in this case had that duty, or at least accepted it, and attempted to carry it into effect, thus claiming that right. Their respective legal claims were subsumed by deep emotion emanating from, and affecting not only them, but other members of the deceased's extended family as well. Questions relating to cultural values and customs interceded. To state that the Court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except in so far as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values."

21 Martin J concluded that the Court was required to resolve the argument in a "practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency".

22 In Meier v Bell, unreported; SCt of Vic; Library No BC9700457; 3 March 1997, Ashley J noted that in the case of persons who have died intestate, the approach has been to identify as best as is possible, the person who is a potential administrator, and to treat that person in the same way as if he or she had been appointed executor. He noted that the person with the better legal right to arrange for the burial was the person whose wishes must prevail. Ashley J referred to Calma v Sesar (supra) and said that, in his view, Martin J's observations which I have quoted above, were "correct in law, humane and entirely sensible in their practical effect".

23 In Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328, Perry J (with whom Millhouse J and Nyland J agreed) made certain observations about Meier v Bell (supra). In Jones v Dodd, the dispute was about the place where the body of a deceased person was to be buried, the contenders being the father of the deceased and the de facto spouse of the deceased. The de facto spouse contended that the question about who should determine where burial occurred should be resolved in accordance with the wishes of the person best placed to obtain an order for administration in intestacy of the estate of the deceased. Reliance was placed on Meier v Bell (supra). Perry J said at 37:

"In my opinion, that argument wrongly elevates the approach found to be convenient in some cases, namely, that burial rights be accorded a person in a position to apply for a grant of letters of administration in intestacy, to a rigid proposition or principle of law."

"... With great respect to Ashley J, in my view, the authorities do no more than support the view that in some cases such an approach may be appropriate, but that there is no principle of universal application which compels such an approach in all cases. Furthermore, again with great respect, I cannot accept that it is right to reject consideration of emotional, spiritual and cultural factors when they are present, however inconvenient it may be to do so in the short time which is commonly available to decide these cases."

" ... 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."

26 I accept the correctness of Perry J's observations. This is because an executor draws his title from the will. A person who seeks letters of administration will only attain that office when an order of the court is made. As was said by Waddell CJ in Brown v Tullock (1992) 7 BPR 15101, no-one can presume conclusively that a particular person will be granted administration before the grant is made.

27 However, I should add that even if the "common or usual approach" is not a principle of law, it would have to be an extremely rare case to depart from the usual approach. I say this because a person who is granted letters of administration is the person who has the control over the burial arrangements: see Smith v Tamworth City Council (supra) at 691. If the "common or usual approach" is not applied on nearly every occasion, then we might soon have the spectacle of intending applicants for a grant of letters of administration seeking injunctions to restrain any dealing with the body until there had been such a grant. That would be a most unsatisfactory course in practical terms. It is much better that the decision be made expeditiously and finally, as has occurred in recent cases. I have dealt with this aspect of Jones v Dodd (supra) because counsel for Mr Cramley referred to it. In my opinion, however, what was said by Perry J in that case does not affect the outcome in this case.

28 In this case, each party accepts that the other would be granted letters of administration if applied for. Ross left property in Western Australia, and therefore Mrs Burrows is entitled to apply for letters of administration: see s 6 and s 25 of the Administration Act. It is not in dispute that Mr Cramley is similarly entitled to apply for a grant of administration in New South Wales, because there is property in that State. I was told that where there is only personal property consisting of personal effects, the practice in this State is that no grant of letters of administration will be necessary. However, in my view it is not a question of what may or may not happen in uncontentious cases. This is a contentious case, and both of the parties have a right to apply for, and in my opinion each would be likely to be granted, letters of administration.

29 Counsel for Mr Cramley made reference to the fact that the domicile of the deceased was in New South Wales because he had his principal home with his father: see s 8(2) Domicile Act 1981. I was informed that the Domicile Act of New South Wales is to similar effect. This factor is not significant in this case. I do not think that I have to summarise the argument that was advanced by counsel for Mr Cramley because it was advanced in support of a contention that Mr Cramley was likely to obtain a grant of letters of administration in New South Wales. By the end of the hearing, there was no dispute that each party would be able to obtain a grant of letters of administration as I have mentioned above.

30 In this case, I am therefore driven back to a consideration of practicalities. I will take into account family associations insofar as they are relevant to the consideration of the practicalities of the situation. Counsel for Mr Cramley also submitted that religious interests should be taken into account. In my view, they are not relevant in this case. Mr Cramley raised the point that he is a Catholic, only because the application by Mrs Burrows sought the right to either "bury or cremate" Ross' body. At the hearing, this issue disappeared because counsel for Mrs Burrows informed me that an order was no longer sought permitting cremation. In any event, there could not be cremation where there is no will and if there is written objection to cremation by next of kin. See s 13 of the Cremation Act 1929.

31 In coming to deal with practical considerations, I should begin by saying that I have a great deal of sympathy for both parties. In the latter part of his life, both parents maintained contact with Ross, although I note that there was a break in the relationship between Ross and his mother from some time last year until the date of his death. I do not consider that latter aspect to be a factor of any significance, because teenage years can be a difficult time for parent and child.

32 The evidence suggests Mr Cramley provided the greater care and comfort for Ross. He points to the fact that he was awarded custody and that he then brought up his son for many years in Sydney. He always maintained a good relationship with Ross. Mr Cramley points to the fact that this has not always been so in the case of Mrs Burrows. Mr Cramley points out that Ross was intending to go and live with him in Mexico. Mrs Burrows, on the other hand, points out that despite the custody order in favour of Mr Cramley, Ross chose to leave Sydney when he turned 14 and came to live with her. In my opinion, these factors, while important to the feelings of the parties and assuming for the moment they are relevant, are not determinative. If these factors were the only ones I had to consider, then they favour Mr Cramley. Whether the attention given by one party or the other during the lifetime of the deceased is relevant, was doubted by Martin J in Calma v Sesar (supra) at 459, but not decided. In my view, evidence about where the deceased lived and why, is relevant, but I agree that detailed evidence about who, out of two parents who provided support or comfort, provided the most support or comfort, is not relevant to the decision I have to make.

33 Each party points to certain relevant factors which he or she says favour the order sought. Mrs Burrows' counsel informed me that there are a large number of family and extended family and friends who Mrs Burrows would wish to attend the funeral in Perth. Mr Cramley's counsel informed me that there are many family members and friends of Ross who live in Sydney, and that Mr Cramley would wish them to attend the funeral.

34 Mr Cramley says that a factor favouring a funeral in Sydney is that he is prepared to pay whatever is necessary to have a memorial service in Perth so that Western Australian relatives and friends can attend, and then to have the body transported to Sydney where there would be a funeral and burial there. Mr Cramley, as I indicate above, says that he will pay for Mrs Burrows and her mother to attend the funeral in Sydney. On the other hand, Mrs Burrows says that this is all possible because Mr Cramley is financially well off and able to meet these costs. The fact that she is not well off means that it is unlikely that she could make trips whenever she wished to visit the grave in Sydney. This is met by Mr Cramley, who says that he would pay Mrs Burrows' fares for yearly visits in the future, but as counsel for Mrs Burrows points out, and I agree, it would be impossible to formulate any order, or to extract any undertaking, which could be enforceable.

35 The simple fact is that if the funeral is in Sydney, then it is likely that financial and other considerations will mean that family and friends from Perth will not all be able to attend the funeral. If the funeral is in Perth, it will mean that many family and friends from Sydney will not be able to attend. In the case of Ross' paternal grandmother, she will not be able to attend a funeral in Perth because ill health prevents her from travelling.

36 The above considerations give no indication as to a result. However, I must produce a result. In my view, the considerations which are determinative are as follows:

(a) First, Ross died in Western Australia. In practical terms, that suggests that he should be buried here. It is true, as Mr Cramley points out, that it is not unusual for bodies to be flown to other locations. However, that will occur in circumstances where the purpose is to achieve burial in the place where all concerned agree burial should take place. So the ease with which the body may be transported does not help decide the issue.

(b) Secondly, Mr Cramley, in financial terms, is much better placed than Mrs Burrows to travel to visit Ross' grave in future years.

(c) Thirdly, Mr Cramley is presently in Perth. So is his brother. If Mr Cramley wishes some other family members to attend the funeral in Perth, then it is clear that Mr Cramley could afford to arrange for at least two of them to attend.

37 Those factors, slight as they are, are enough to tip the balance in favour of a funeral in Western Australia.

a. Mrs Burrows have carriage of the funeral of the late Ross Vincent Hank Cramley.