Administration - Carriage of funeral - Administration Act 1903 (WA), s 14, s 15 - Plaintiff excluded from attending the funeral - Wishes of deceased - Significance of cultural, spiritual and religious factors - Practical considerations

Administration Act 1903 (WA), s 14, s 15

Burrows v Cramley [2002] WASC 47

Grandison v Nembhard [1989] 4 BMLR 140

Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328

Manktelow v The Public Trustee [2001] WASC 290; (2001) 25 WAR 126

Saleh v Reichert (1993) 104 DLR (4th) 384

Smith v Tamworth City Council (1997) 41 NSWLR 680

Ugle v Bowra & O'Dea [2007] WASC 82

1 LE MIERE J: Carlene Hayden died on 1 November 2010. She was 22 years old when she died. The question that arises in these proceedings is who has the right to make the funeral arrangements, the de facto spouse of the deceased or her mother.

2 The first defendant is Carlene's mother. The first defendant is Noongar. Her country is around Kellerberrin. Carlene's father, Alan Payne, and his family have tribal lands out near the desert, including Kalgoorlie. It appears his people are Wongi. Carlene was born in Subiaco in 1987 and lived in Gosnells until 1988. She lived in Kellerberrin from approximately 1988 to 1991, in Norseman from 1991 to 1994 and in Kellerberrin from 1994 to 1996. The first defendant says that Mr Payne left her with Carlene and her siblings when Carlene was 3 or 4 years old, that is, in 1990 or 1991. Mr Payne says that he left the first defendant and Carlene in about 1998 or 1999. Carlene lived in the Perth metropolitan area from 1996 to the time of her death. She used to visit her mother at Kellerberrin during school holidays. The first defendant now lives in the Perth metropolitan area.

3 Carlene commenced living with the plaintiff as de facto spouses in about July 2006. The plaintiff and Carlene had two children who live with the plaintiff. Mr Payne and Carlene started seeing each other again some years ago. Mr Payne says it was about four or five years ago, the first defendant says it was in about 2008. Mr Payne lives in the Perth metropolitan area.

4 The first defendant wishes to bury Carlene in Kellerberrin. She says that that is where her family, and Carlene, come from and is their country. The plaintiff wishes to bury Carlene in Kalgoorlie. That is where Carlene's paternal grandmother is buried. The plaintiff says that Carlene was close to her paternal grandmother and that is where Carlene wished to be buried.

5 At common law certain persons are under a duty to bury the dead, which is accompanied by a right to possession of the body for this purpose. 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. Where no executor is named the person with the highest right to take out administration will have the same privilege as an executor: Smith v Tamworth City Council (1997) 41 NSWLR 680, 685. This statement of principle is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied: Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328, [46] (Perry J). It would have to be a rare case to depart from this common or usual approach: Burrows v Cramley [2002] WASC 47, [27] (Pullin J).

6 The person with the highest right to take out administration is the plaintiff who was the de facto spouse of the deceased at the time of her death: Administration Act 1903 (WA) s 14, s 15.

7 Counsel for the plaintiff submitted that there are additional reasons why the funeral should be entrusted to the plaintiff. Counsel for the defendant submitted that there are reasons why the funeral should be entrusted to the first defendant.

8 Counsel for the plaintiff submits that the first defendant has attempted to exclude the plaintiff from attending the funeral. In Manktelow v The Public Trustee [2001] WASC 290; (2001) 25 WAR 126, Hasluck J said that the holder of the right of burial cannot use the right in such a way as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner. There is evidence that the first defendant and members of her extended family have threatened to exclude the plaintiff from any involvement in the funeral.

9 In his affidavit sworn 11 November 2010 the plaintiff says that he arranged for a viewing at Sir Charles Gardiner Hospital of Carlene's body on 3 November 2010 but the body had been removed by Congress Funerals on the instructions of the first defendant. The first defendant told him that Carlene was her daughter, and that it had nothing to do with him. The plaintiff says that he later learned that the first defendant had arranged for a funeral to be held on Saturday 13 November 2010 in Kellerberrin. He contacted the first defendant and asked her about the arrangements that had been made. The plaintiff says that the first defendant told him not to come to the funeral because Carlene was the first defendant's daughter and it had nothing to do with him.

10 Sealin Garlett is involved with Congress Funerals and is the first defendant's uncle. In his affidavit sworn 12 November 2010 the plaintiff says that Sealin Garlett rang him on 11 November 2010 and said to him, amongst other things, that he could not attend the funeral.

11 The plaintiff's sister, Natasha Corunna, has sworn that she has received messages that members of Carlene's family in Kellerberrin had said that they could not control what would happen at the funeral and that the plaintiff, Natasha and their mother would face the consequences if they attended the funeral.

12 The first defendant does not deny that members of her family have told the plaintiff that he may not attend the funeral in Kellerberrin nor does the first defendant deny that the plaintiff has been threatened with adverse consequences if he does attend the funeral. The evidence establishes that the first defendant made arrangements to hold the funeral in Kellerberrin without consulting the plaintiff and has sought to exclude him from the funeral arrangements.

13 Thomas Hayden is the grandfather of Carlene and the father of the first defendant. In his affidavit sworn 18 November 2010 he says:

I have spoken to my family and I can confirm that if this court sees fit to order that Carlene be buried in Kellerberrin, Morton [the plaintiff] and Natasha [the plaintiff's sister] would be welcome to see the body before she is buried, attend the funeral ceremony and visit the grave at any time in the foreseeable future and nothing would happen to either of them by way of tribal or family payback under Noongar customary law.

14 I find that the first defendant and her extended family have attempted to exclude the plaintiff from the funeral and burial of Carlene. That situation has been, at least in part, ameliorated by the assurances given by Mr Hayden. However, the plaintiff remains concerned that he might be intimidated if the funeral is conducted at Kellerberrin.

15 The plaintiff says that Carlene stated several times that she wanted to be buried in Kalgoorlie with her grandmother and she did not want to be buried in Kellerberrin and that is a further factor in entrusting the funeral arrangements to the plaintiff who intends to arrange for the burial in Kalgoorlie.

16 The legal consequences of burial instructions or the wishes of the deceased is discussed by Heather Conway in 'Dead, But not Buried: Bodies, Burial and Family Conflicts' (2003) 23 Legal Studies 423. Dr Conway says that apart from appointing an executor who will have the right to dispose of the corpse and from legislation conferring a statutory right to donate body parts for research or transplant purposes, a person has no legal right to dictate what will happen to his or her remains after death. Dr Conway opines that upholding burial directions would respect the autonomous choice of the individual by ensuring that the deceased's remains are dealt with according to his or her wishes. Dr Conway notes that there have been several instances of courts referring to the wishes of the deceased: Grandison v Nembhard [1989] 4 BMLR 140; Saleh v Reichert (1993) 104 DLR (4th) 384, but observes that these will only be upheld where they are consistent with the established legal framework for resolving burial disputes and with the intentions of the person entitled to determine the form of burial. In Ugle v Bowra & O'Dea [2007] WASC 82, McKechnie J said that the views of the deceased, while not decisive, should nevertheless be given considerable weight.

17 There is evidence that the deceased said to her father, Mr Payne, to the plaintiff and to his sister, Ms Corunna, on occasions in 2008, 2009 and around July 2010 that she wanted to be buried near her grandmother in Kalgoorlie. The first defendant has sworn that at no time did the deceased say to her that she wished to be buried in Kalgoorlie and so far as the first defendant is aware the deceased did not like Kalgoorlie and she would not have chosen to be buried there. That evidence does not contradict the evidence of the plaintiff, Ms Corunna and Mr Payne that the deceased expressed the wish to be buried in Kalgoorlie near her grandmother. That consideration supports entrusting the funeral to the plaintiff.

18 The first defendant put forward two principal reasons why she should have carriage of the funeral. First, burial in Kellerberrin and not Kalgoorlie would be in accordance with Noongar custom or culture. Secondly, practical considerations favour a burial in Kellerberrin because it is more likely that the family of the deceased would look after and visit the grave in Kellerberrin than in Kalgoorlie.

19 Courts in Australia have given consideration to the cultural values of the deceased and his or her family. Dr Conway suggests that the decisive factor should be the wishes of the deceased:

If an individual can determine what should happen to his or her body when alive on the basis of religious or cultural beliefs, these should be accorded equal respect when an individual is determining the posthumous fate of his or her body. Moreover, where the person with legal responsibility for burial is intending to bury the deceased in a manner contrary to his or her religious or cultural beliefs, other relatives and those with close ties to the deceased should be able successfully to challenge this decision ... However, the position would be different where the deceased's loved ones are challenging the form of burial because of their own religious and cultural values, despite the fact that the deceased did not espouse those values while alive. In these circumstances, the final decision should rest with the persons having legal responsibility for burial (especially where they are acting in accordance with what the deceased wanted); the views of the deceased's relations should be ignored, as would be the case under the current framework.

20 Thomas Hayden, the maternal grandfather of the deceased, is an elder in the Noongar community and familiar with the customs and ways of the Noongar people. Mr Hayden says that it is the Noongar custom that members of the Noongar community are brought back to where they have closest ties to the land and family to be buried. Mr Hayden says that in this case that means bringing the deceased back to Kellerberrin. Mr Hayden says that Kalgoorlie is Wongi country and for the deceased to be buried there the plaintiff would need to obtain permission of the Noongar people. Aimee Lamatoa, an anthropologist, has given affidavit evidence that burial in your own country is important to Noongar people. Ms Lamatoa also says that it is important to be buried where your family was, so that everyone was kept together.

21 I find that customary or traditional values do not carry any significant weight in determining the outcome in this case. That is so for three reasons. First, the evidence is that the deceased did not maintain a traditional lifestyle, although she was interested in the traditions of her people. Secondly, whilst her mother's family came from Kellerberrin, her father's family came from lands out near the desert, including Kalgoorlie. Thirdly, apart from relatively short periods, the deceased did not live in Kellerberrin. From the age of 9 to her death the deceased lived in the Perth metropolitan area.

22 I find that the practical matters in this case are neutral. The first defendant made provisional funeral arrangements. The plaintiff has taken steps to arrange a funeral and has provided evidence that if he is granted the carriage of the funeral arrangements he will be able to make the necessary arrangements.

23 The plaintiff and the two children of himself and the deceased live in the Perth metropolitan area. They will have to travel to Kalgoorlie to attend the funeral and subsequently to visit the grave. The deceased's father, Mr Payne, has given evidence that he has family in Kalgoorlie who will provide accommodation for the plaintiff and the children whenever they want to visit the grave. The first defendant also lives in the Perth metropolitan area. She would have to travel to Kellerberrin for the funeral and to subsequently visit the grave. Kalgoorlie is about three times as far from Perth as Kellerberrin but that is not a significant factor because both are a substantial distance and a significant journey from Perth. So far as maintaining and visiting the grave is concerned, that too is not a significant factor. The first defendant has family in the Kellerberrin area. The deceased's father has family in the Kalgoorlie area.

24 The common or usual approach is that the person with the highest right to take out administration will have the right to arrange for the burial of the deceased's body. The application of that approach would lead to the plaintiff being granted the right to conduct the burial. There is no good reason to depart from that approach in this case. The evidence is that the intentions of the plaintiff to conduct the funeral in Kalgoorlie is consistent with the wishes expressed by the deceased during her lifetime. I will order that the plaintiff have conduct of the burial of the late Carlene Diane Hayden Payne.