Carly White v Candice Williams

History of the Deceased

1. The Deceased was born on 3 August 1986 in Sydney.
2. The Deceased's father was Ross Fisher (Rossi), a Wakka Wakka man who came to Redfern from Cherbourg in about 1967. The Deceased's mother, the Defendant also grew up in Cherbourg and moved into Redfern/Waterloo, though her family comes from Woorabinda, some 500 kilometres away from Cherbourg.
3. The Deceased was raised in the Redfern/Waterloo area, attending Redfern Public School and Cleveland Street High school. His parents separated when he was young and the Deceased was thereafter supported by many Aboriginal members of the Redfern Community.
4. Ross Fisher died when the Deceased was about 14 years old. Mr Fisher was buried in Cherbourg in accordance with his wishes. His father's death caused considerable hurt and distress to the Deceased and he began to get into crime and drugs.
5. The Deceased met the Plaintiff, an Aboriginal woman from Sydney, in October 2002, when they were both about the age of 16 and began a relationship shortly after. In February 2003, the Deceased moved into the home the Plaintiff shared with her mother in Waterloo. The Plaintiff and the Deceased had two children together, Ross born in March 2004 and Tyrell born in September 2006.
6. The Deceased suffered with addiction to various substances through much of his adult life, and he spent periods of time in jail. He was involved with many women apart from the Plaintiff. The Deceased and a woman, Mavis Stanley had a child, Patrick, in August 2010. The Deceased also moved to Western Australia with another woman, Naomi Mitchell, for a period of about 18 months around 2011.
7. The Deceased, died on 7 February 2018, after falling from a balcony at the home of Naomi Mitchell, in Waterloo. A Coronial inquiry into his death will be held later in the year.

Legal Principles

1. The issue before the Court is whether the Plaintiff or the Defendant was or is entitled to arrange for the burial of the Deceased and further to decide where the Deceased was to be buried.
2. The starting point in this type of case is that there is no property in human remains (Smith v Tamworth City Council (1997) 41 NSWLR 680 at 690), but if the deceased left a will, the executor has the right to arrange the burial (Smith v Tamworth City Council at 691). If the deceased dies intestate, the administrator is in the same position.
3. The Succession Act 2006 (NSW) then guides who will be considered next of kin and entitled to make an application for administration. Relevantly, the next of kin is any surviving spouse (Part 4.2, Division 3), then any children of the Deceased (s 127) and then a parent of the Deceased (s 128).
4. For various reasons set out below both parties here assert they have that entitlement. The Deceased was an Aboriginal man which gives rise its own special and important considerations. In matters such as these the Court exercises its inherent jurisdiction. As to the various factors that arise, I can do no better than embrace some remarks of Doyle CJ, Chief Justice of South Australia, in the matter of In the Estate of Jones (deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458, where he said in a somewhat similar situation which confronts the Court in this case (at [29]-[32]): 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. 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) 41 NSWLR 680 and Meier v Bell, Butterworths Unreported Cases BC 9700457. In Jones v Dodd (1999) SASC 125; 202 LSJS 201 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 11 in particular. Perry J, with whose reasons the other members of the court agreed, said in particular at 11: "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." To understand that statement in context, it is important to bear in mind that Perry 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. Also 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 plaintiffs own beliefs have cultural significance because they are beliefs that would be widely shared in contemporary Australian society.
5. More recently in 2014, Nicholson J made some pertinent comments in State of South Australia v Smith (2014) 119 SASR 247 as follows (at [22]-[23]); 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. 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. The common law position was summarised by Young J in the matter of Smith v Tamworth City Council: 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. 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 letters of administration has the right of burial. However as noted in the judgement of Perry J (with whom Millhouse and Nyland JJ agreed) in Jones v Dodd, 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.
6. His Honour went on to note (at [34]): The authorities decided in this State, 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.
7. His Honour then identified four main considerations that could assist in the resolution of the dispute, whom might be entitled to take out letters of administration (at [47]), any Aboriginal cultural matters and concerns (at [55]), the Deceased's own wishes (at [61]), and the wishes of any living close relatives (at [65]).
8. In this Court, Campbell J in 2016 in Darcy v Duckett [2016] NSWSC 1756 at [27], in a not dissimilar set of circumstances accepted Nicholson J's analysis that the proper approach ultimately in such a case required a balancing of common law principles and practical considerations as well as attention to any cultural, spiritual and/or religious factors that are of importance.
9. Rothman J made reference to the authorities again more recently in 2017 in Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684. His Honour however, applied principles enunciated by Young J in Smith v Tamworth City Council. However Smith was not a case which concerned Aboriginal persons. In my view, the approach of Doyle CJ, Nicholson J as articulated by Campbell J in this Court, is the appropriate approach to be adopted.
10. The Defendant in this case has no assets and died intestate. No application for letters of administration will ever likely be made. The Plaintiff nonetheless says the question as to who is the appropriate person to make such application should be considered. For example there are many authorities that support the view that where an estate exists but there is no will, a spouse or de facto spouse has been considered relevantly eligible to make such application and as a result is regarded as the person who is expected to attend to the burial. In determining whether in accordance with the authorities the Plaintiff is the best person to take out letters of administration, the nature of her relationship with the Deceased is highly relevant. To be regarded under the law as a de facto, requires many factors to be taken into account. This is apparent from the Interpretation Act 1987 (NSW), s 21C(2),(3). The factors there identified are really a checklist rather than one which is exhaustive with no particular priority.
11. However there is no inflexible rule that priority to apply for administration necessarily determines the question of the release of the remains (Jones v Dodd (1999) 73 SASR 328 at [46], [47]), and the relevance of a de facto relationship is minimised to some extent by Part 4.4 of the Succession Act. Relevant religious, cultural and spiritual matters may well play a role together with any views expressed by the Deceased. The latter factor, the authorities suggest should be accorded considerable weight (See State of South Australia v Smith and also Frith v Schubert (2014) SASR 247 at 261). In cases such as these specific regard should be had to certain practices regarded as important by many Aboriginal people, in particular, the desire to be buried 'on country' (that is on ancestral lands). However, as illuminated by the expert evidence of Dr Babidge (discussed in detail below), there are occasions were practical considerations have made this 'ideal' unattainable. There are further particular cultural and spiritual practices that were raised in this case, including the importance of visiting and tending to the grave.
12. Likewise the wishes of the Deceased's children should carry very great weight. In particular I note the decision of Templeman J in the Supreme Court of Western Australia, in Reece v Little [2009] WASC 30, where the wishes of the children were considered extremely important particularly in the context where their mother expressed the importance of visiting their father's grave for the purpose of grieving and mourning (at [85], [86], [97]). (see also Frith v Schubert at [57]). In State of South Australia v Smith the particular 'living close relatives' considered by Nicholson J to be most relevant were in fact the Deceased's two children, he stated (at [72]) Ultimately, in my view, the interests of the deceased's children should be accorded a greater weight than the interests of the Coober Pedy extended family even those of the maternal aunties. The nature and closeness of the respective relationships (children as against extended family) support this.
13. The Court must ultimately make an evaluative judgement, taking into account all the relevant factors, including any cultural and spiritual matters, and the specific factual circumstances of the case (Darcy v Ducket [27]).

Plaintiff

1. Carly White is the Plaintiff in this case. Her claim over the right to bury the Deceased rests on her assertion that she was his de facto partner.
2. Although the Plaintiff and the Deceased never formally married, the Plaintiff considered herself to be the Deceased's wife up until the date of his death [Affidavit of Carly White sworn 21 February 2018 [3]]. However, due to the Deceased's drug use and experiences of incarceration, there were times when the Deceased did not live with the Plaintiff [Affidavit of Carly White sworn 21 February 2018 [6]].
3. The Plaintiff stated that she was present at all of the Deceased's court cases as his support person and visited the Deceased in prison every week [Affidavit of Carly White sworn 21 February 2018 [9]].
4. Although the Plaintiff noted that the Deceased had affairs with other women and even lived with another woman from around 2009 to 2012, she stated that there was an ongoing relationship, which included a sexual relationship, between her and the Deceased at all times. It went unchallenged that the Deceased had insisted that the Plaintiff remain exclusive to him at all times, and it appears that she maintained this commitment till his passing [T16/15]. When questioned about the Deceased's relationship with other women, in particular Naomi Mitchell and Mavis Stanley, the Plaintiff stated that he was still coming to her place, they were sleeping together and that she was doing 'wife stuff for him' [T14/50]. The Plaintiff stated that many of these relationships were about facilitating his drug use [T16/12].
5. The Plaintiff accepted that the Deceased spent time at many other people's houses, but stated that this was primarily an outcome of the Deceased's drug-taking lifestyle. It appears that the Deceased would go on benders and 'crash' with a number of different people [T16/45-17/14].
6. The Plaintiff stated she visited the Deceased regularly at the South Coast Correctional Centre during 2016, and that the Deceased called her every day. During the final weeks of his sentence, the Deceased was hospitalised and the Plaintiff visited everyday with their children [Affidavit of Carly White sworn 21 February 2018 [15]].She states that the couple officially reconciled in 2017. The Deceased resumed living with her, received mail at her place, they had a sexual relationship and spoke about their future together as a family [Affidavit of Carly White sworn 21 February 2018 [19]]. She states that throughout 2017, although the Deceased spent time at other people's houses: He was living under my roof. He- when he would go to sleep, he was sleeping in my bed. When he had showers, he was showering in my shower. When he - when I cooked, I put a plate up for him if he was not there.
7. The Plaintiff stated that the Deceased told her he wished to be buried where his children could visit [Affidavit of Carly White sworn 21 February 2018 [23]]. She stated that he initially wanted to be buried in Cherbourg with his father, but that his mind changed once he had his own children [T20/24].
8. The Plaintiff stated that on the day of the Deceased's passing family and friends converged on 'our house' [Affidavit of Carly White sworn 21 February 2018 [24]]. She also made numerous telephone calls to inform a number of people of the Deceased's passing, calling Chiara Williams as well as picking up and caring for the Defendant.
9. The Plaintiff included numerous attachments to her affidavit. Of particular note were various photographs of the Deceased and the Plaintiff together from 2016-2017 [Affidavit of Carly White sworn 29 October 2018, Annexure J] and the funeral booklet made for the Deceased in which the Plaintiff was described as his 'life partner' [Affidavit of Carly White sworn 29 October 2018, Annexure D].

Defendant

1. Candice Williams is the mother of the Deceased and the Defendant in these proceedings. She opposed the Plaintiff's claim on the basis that the Plaintiff and the Deceased were not in a de facto relationship at his time of passing and that he wished to be buried in Cherbourg with his father.
2. The Defendant submits that there had been no relationship between the Plaintiff and the Deceased since around 2012 [Affidavit of Candice Williams sworn 2 March 2018 [4]]. Rather the Deceased had been in a relationship and lived with Naomi Mitchell [Affidavit of Candice Williams sworn 2 March 2018 [8]-[9]].
3. The Defendant stated that the Deceased wanted to be buried with his father and grandfather [Affidavit of Candice Williams sworn 2 March 2018 [10]]. The Defendant maintained that the Deceased's wishes about his burial place did not change after he had children [T71/31].
4. The Defendant did not have a good relationship with the Plaintiff in recent years [T73/30], however it does appear that the Defendant used to visit the Plaintiff's house and see the Deceased and the grandchildren on some occasions [T74/3]. The Defendant maintains that there was no de facto relationship and that the Deceased carried on relationships with many other women, rather 'Carly was just one of the girls' [T82/25]. The only reason the Deceased went to visit the Plaintiff was to see his sons [T82/34]. She states that the Plaintiff and the Deceased had not been in a 'proper' relationship since when their sons were babies [T84/42].
5. The Defendant disputed that the Deceased was living with the Plaintiff in the year prior to his passing. She stated that all his mail was coming to her home, he slept there, had a room there and kept his clothes there [T83/7-21]. She stated that he had been in a relationship with Naomi Mitchell in the year prior to his passing [T84/39].
6. The Defendant was informed of the Deceased's passing by a niece of hers [T76/40]. She went down to the area near where the Deceased had died and spoke to an Aboriginal woman who worked in the community rooms there [T76/45], she then told the Plaintiff where the Defendant was [T78/9]. The Plaintiff and her mother, Francis, then picked up the Defendant and brought her to the Plaintiff's home where people were congregating.
7. It appears that initially the Defendant was in agreement about burying the Deceased in La Perouse/Botany, but then changed her mind after the march in Redfern Park [T78/39]. The Deceased states that she was confused in the wake of the Deceased's passing but then came to the realisation that she needed to respect the Deceased's wishes above all else, and that meant in her mind returning his body to be buried in Cherbourg [T78/50-79/9].
8. The Defendant stated that she would be able to visit the Deceased's grave if he were buried in Cherbourg [T85/23]. She insisted that the Deceased's sons would also be able to visit his grave if he were buried in Cherbourg [T85/28]. She stated that she had not visited his grave in La Perouse/Botany, but probably would after these proceedings were finalised if his body remained there [T87/4-15].

The Plaintiff's relationship with the Deceased

1. In 2002/2003 the Plaintiff and the Deceased commenced their relationship. It is relatively uncontroversial that they were together until at least 2009. In about 2009 it appears that the Deceased began a relationship with Mavis Stanley and she had his child in 2011. Also around 2011 it appears that the Deceased moved to Western Australia with Naomi Mitchell. The Plaintiff states that she and the Deceased had resumed a sexual relationship by at least 2014 and further that she had remained faithful to him and considered herself to be in a relationship throughout this time. It appears that the Deceased was in jail for the majority of 2016 and was released on New Year's Day 2017. He then went on around a month-long bender before officially reconciling with Carly in February 2017. The Plaintiff states they were then living together until his passing.
2. Although it is uncontroversial that the Deceased carried out relationships with many other women, the Plaintiff considered herself to be the Deceased's de facto until his passing in 2018. This fact is disputed by the Defendant. She stated that the Plaintiff and the Deceased had not been in a relationship since around the time their second son was born.
3. The Plaintiff called numerous other witnesses to support her case, being the Plaintiff's mother Frances White, her aunts Eileen White and Margaret White, the Deceased's aunts Patricia Blackman and Laurel Johnson, the Deceased's cousin Narikah Johnson, as well as several elders in the Redfern community and friends of the Deceased's Patricia Georgetown, Jenny Munro and Lyall Munro. The substance of this evidence was that it was their understanding and belief that, notwithstanding the Deceased's relationships with other women, he remained in a 'relationship' with the Plaintiff [T55/27]. Many of the witnesses stated that these other relationships were primarily about facilitating the Deceased's drug use [T45/40; T44/10]. Even when not co-habiting, the Deceased would come and go, seemingly returning to the Plaintiff. As stated by many witnesses, he always went back to Carly [T27/25; T42/35; T35/35; 49/10]. When the physical relationship was interrupted by the Deceased's drug use, incarceration or other relationships, they remained as a couple both physically and more importantly psychologically [T43/22]. It was generally believed that the Deceased was living with the Plaintiff during the last year of his life, he left his clothes and other belongings there and was seen there on numerous occasions [T27/49; T44/1]. The Deceased and the Plaintiff participated in family activities together, attending the children's sporting matches and going to family functions [[Affidavit of Frances White sworn 21 February 2018 [14], Affidavit of Patricia Blackman sworn 21 February 2018 [14]]]. The relationship is further evidenced through extensive photographs attached to the Plaintiff's affidavit, showing the Deceased with the Plaintiff at her home and visiting the Deceased at the hospital with their two sons.
4. Evidence from the Defendant sought to undermine the relationship between the Plaintiff and the Deceased. In addition to the evidence given by the Defendant, Katherine Fisher and Colleen Williams testified that there was no de facto relationship. Further affidavit evidence from Chiara Williams, Ian Mason, Nathan Captain, Teeka Johnson, Mavis Stanley and Robert Broome suggested that the Deceased had not been in a de facto relationship with the Plaintiff for at least several years prior to his death.
5. The substance of this evidence was that there was no de facto relationship between the Plaintiff and the Deceased. The Deceased was not living with the Plaintiff but living with different family members [T93/10-19; T139/19]. He appeared to be receiving mail at both the Defendant and Katherine Fisher's homes [Affidavit of Candice Williams unsworn [19]-[25]; Affidavit of Katherine Fisher sworn 16 March 2018 [5]-[6]]. He carried on relationships with many other women [T94/16; T95/29], and the relationship with the Plaintiff was one sided [T95/4]. In particular the Defendant pointed to the ongoing, long-term relationship between the Deceased and Naomi Mitchell. It was stated this relationship began in around 2011 or 2012 and that the two lived together in Western Australia for about a year. The Deceased attended a funeral with Naomi in 2013 [Affidavit of Katherine Fisher sworn 3 April 2019 [43]] and apparently bought a ring for her in 2014 [Affidavit of Colleen Williams sworn 27 February 2019 [48]-[53]]. The couple seemed inseparable in September 2017 [Affidavit of Ian Russell Mason sworn 16 March 2019 [12]-[15]] and Naomi had access to the Deceased's dole form [Affidavit of Katherine Fisher sown 3 April 2019 [45]].
6. Despite insistences that the Plaintiff and the Deceased were not in a de facto relationship, certain admissions from the Defendant's witnesses made clear that there was certainly some kind of relationship between the two. Particularly, it seems that there was an element of 'family life' about the couple, as noted by the Defendant, the Plaintiff and her children had to come together; they were a 'package' [T83/49]. The Deceased appeared to visit the Plaintiff's home to clean and perform domestic duties [Affidavit of Katherine Fisher sworn 16 March 2018 [8]-[9]; Affidavit of Ian Russell Mason sworn 16 March 2018 [14]; Affidavit of Nathan John Captain sworn 16 March 2018 [7]; Affidavit of Candice Williams sworn 27 February 2019 [16]]. Further, it appeared that witnesses for the Defendant also considered 'relationship' to not rest solely on co-habiting [T91/46].

The Deceased's wishes

1. It appears on the evidence that the only person to whom the Deceased expressed his wish to be buried in Sydney was the Plaintiff. According to her he had frequently given her instructions about what to do in the event of his passing [Affidavit of Carly White sworn 29 October 2018 [13(g)]]; The Deceased regularly spoke about death and dying, especially in the weeks prior to his death. He would mention this every day or second day. He said things like, 'You're the one that's going to be taking over. You're going to tell everyone what I want to do when I pass'."
2. The Plaintiff stated that the Deceased frequently spoke to her about the trauma of being separated from his father and hoped that his sons would not suffer in the same way [Affidavit of Carly White sworn 29 October 2018 [9]]. Jenny Munro stated that the Deceased had told her many times how he felt sad at not being able to visit his father's grave and how he hoped what he was going through was never inflicted on his sons Ross and Tyrell [Affidavit of Jenny Munro sworn 29 October 2018].
3. On the other side, it appears that there were numerous other people to whom the Deceased expressed his desire to be buried at Cherbourg with his father. The Defendant herself noted that the Deceased wanted to be buried with his father, but did not provide any particulars of any conversations. Colleen Williams recalled a conversation in about 2011 where the Deceased had said he wanted to be buried in Cherbourg [T107/48-108/34]. The Deceased's brother Russell Fisher-Gray, stated that the Deceased told him he wished to be buried with his father sometime around 2005-2008. When asked whether the Deceased may have changed his mind following the birth of his sons, Mr Fisher-Gray stated: Could have. I know he loved them boys. You know? I'm not saying he didn't, I'm not saying he did, you know, but I'm just going from what he asked me. If anything ever happened to him, where he wished to be buried [T132/38]
4. When Mr Fisher-Gray was asked about how he felt about the Deceased's sons, he stated; I love them boys too. I don't want them- like I said, I don't want them to be like, in that part, I don't want them to have to hurt because he's up there, but I have to respect my brother's wishes, you know? [T133/31]
5. Particular attention was drawn to the evidence of Katherine Fisher, who stated that the Deceased had told her only two days before he passed that he wanted to go back to Cherbourg [Affidavit of Katherine Fisher unsworn [38]-[39]]. When asked in cross-examination however, it seems that the Deceased may have been referring to his wish to escape the police and drugs that characterised his life in the city [T98/38]. Ian Russell Mason stated that the Deceased was keen to get out of Sydney [Affidavit of Ian Mason sworn 16 March 2018 [7]]. Similar sentiments were expressed in the affidavit evidence of Nathan Captain and Mavis Stanley. Lillian Gray stated the Deceased told her he wished to be buried at Cherbourg [Affidavit of Lillian Gray sworn 12 March 2018 [12]] but conceded in cross-examination that she herself had had no direct conversations with the Deceased about this matter [T124/4-14]. Much of this evidence contained little detail about the time or circumstances in which these conversations occurred.
6. It does appear that the Deceased had a deep love and respect for his father. The two had been very close and the Deceased idolised him [Affidavit of Katherine Fisher [1]-[20]] and was deeply pained upon his father's death. The Defendant stated that the Deceased never got over his father's death and missed him greatly [Affidavit of Candice Williams unsworn [27]-[28]].

Circumstances following the passing of the Deceased

1. It was generally agreed that following the passing of the Deceased, family, friends, and other members of the community congregated at the Plaintiffs home, to grieve and begin to organise funeral and burial arrangements. It appears that many of the Deceased's blood relatives attended including the Defendant and the Deceased's sister Colleen Williams. Katherine Fisher [T110/3] had also been at Carly's house earlier that day [T96/44].
2. Many witnesses recalled that the Plaintiff was responsible for making phone calls to inform others of the Deceased's passing. The Defendant in particular stated that she 'asked Carly that day to ring Chiara' [T80/46], and Chiara stated that Carly had called her within half an hour of the incident [T139/44].
3. It appears that at this gathering at the Plaintiff's house, some agreement was reached to bury the Deceased in La Perouse/Botany. Colleen Williams notes that she initially agreed to this, but that she was overcome with grief at the time: Yes, I did to that at first, that was the agreement I heard Carly out loud, we - I don't know, there was so much going on in that house, that afternoon, just too many voices. I felt uncomfortable, I remember Carly trying to make us feel comfortable, but it didn't work. I didn't want to stay there, I felt all- like, I just felt shit around me and I just wanted to get out of that house [T110/27].
4. She believed that the agreement was reached too quickly, when no one had time to process their grief. She stated that there was no time allowed for all of the Deceased's siblings to be consulted [T110/36]. Chiara Williams further suggested that there had been some initial agreement reached but stated that her mother had been in too an emotional state following the passing of her son to make a considered choice, she stated: It was a topic of conversation because my mother was still in a state of grief, and everybody around her considering- particularly the Whites- the White family- wanted to-wanted to ensure that he was to be buried in Sydney. At that state (as said), my mother was still reeling for her traumatic state and was trying to consider everybody else and put up a front for everybody else, but nobody gave two hoots for her consideration and her state of trauma [T140/34].
5. Following the passing of the Deceased there was significant outrage within the Aboriginal community in the Redfern/Waterloo area. There was a protest march organised with speeches and a smoking ceremony to commemorate the Deceased. At this event, it appears that Willie Gordon made references to the Deceased being buried in both Cherbourg and La Perouse [Affidavit of Lyall Munro sworn 1 November 2018 [25]].
6. The Plaintiff states that in the days immediately following the passing of the Deceased, she was close with the Defendant speaking to community members and the police together as a family [Affidavit of Carly White sworn 29 October 2018 [10]]. She states that this then changed when the Defendant and Chiara Williams began insisting that the Deceased be buried in Cherbourg [Affidavit of Carly White sworn 29 October 2018 [12]-[13]].
7. It appears in the days following the Deceased's passing, there were community movements in both Redfern and Cherbourg attempting to raise money for the funeral and burial. The Plaintiff together with Jenny Munro drew significantly on the community in Redfern [Affidavit of Carly White sworn 29 October 2018 [4]], and Chiara Williams garnered significant support from Cherbourg through a GoFundMe account. It is clear that both communities saw the Deceased as belonging to them.
8. The Plaintiff states that she has since taken her sons regularly to visit the Deceased's grave [Affidavit of Carly White sworn 29 October 2018 [7]].

The wishes of the sons

1. There was some debate about whether or not it was appropriate to take into account the wishes of the Deceased's sons and where they would want their father to be buried. It was argued by the Plaintiff that it was important that her sons be able to visit their father, as stated in her affidavit (at [9]) I am worried that if the Deceased's remains are buried in Cherbourg, our children will not be able to have the contact with their father that they have now. I foresee that the same problems that the Deceased had with going off the rails as a young man after his father died, might happen to our children [Affidavit of Carly White sworn 29 October 2018 [9]].
2. Chiara Williams on the other hand stated that the wishes of the sons, although a consideration, where much less relevant than being 'buried with your bloodline' [T142/28].

Cultural and spiritual concerns

1. Apart from the expert evidence provided by Dr Babidge, many witnesses expressed their views about what was the appropriate way of arranging for the burial and funeral of a loved one.
2. The Plaintiff and Lyall Munro stated that it was common practice in the Redfern Community to gather at a Deceased house following their passing to mourn and grieve together [Affidavit of Carly White sworn 29 October [10]; Affidavit of Lyall Munro [28]]. Jenny Munro stated that when someone passes, it was important to talk to the immediate family of the Deceased as soon as possible, and where possible take into account the Deceased's wishes [T56/3-16]. The wishes of the Deceased were paramount [T59/4]. Following the Deceased's passing there was a congregation at the Plaintiff's house, and Ms Munro spoke to various people to facilitate the process of his burial [T58/35]. Ms Munro stated that following the passing of the Deceased she spoke with the Plaintiff, the Defendant, the Deceased's sons, as well as Colleen about funeral and burial arrangements. She noted that she didn't speak to the Deceased's aunt Lillian Gray or his sister Katherine as they were not present at the house at the time [T56/31-57/46]. She states that although the Deceased may have told his mother and various siblings that he wanted to be buried in Cherbourg and they now express that view, on the day in question there was no argument about where the Deceased should be buried [T59/12]. However, some of the Deceased's siblings state that they were not consulted about the burial [T97/1-37].
3. Witnesses for the Defendant emphasised the importance of being buried on country. Lillian Gray stated that in most instances a deceased will be buried on country [T124/25], however she acknowledged that sometimes a legal spouse may wish for the Deceased to be buried somewhere else and that these wishes will be respected [T124/29-41]. She stated that there were many people in Cherbourg who could visit and tend to the Deceased's grave were he buried on country [Affidavit of Lillian Gray unsworn [18]]. Chiara Williams stated that the paramount concern is being buried on country [T142/30]. Colleen Williams stated that it was her belief that it was in line with the Deceased's spiritual and cultural needs to be buried with his father, and it was necessary in order to pass on to the Spirit World. She stated: Although he lived in the city, the Deceased was always respectful of his Lore/Law and Culture particularly as it related to him and to his family [Affidavit of Colleen Williams sworn 16 March 2018].
4. There was some evidence given about the importance of being able to maintain and visit the Deceased's grave. As stated by both Margaret White and Patricia Blackman in their affidavits: It is traditional in our culture to go to the grave regularly to maintain it and mourn. It is common for us to attend the grave and either sleep on it or stay with it for hours. It is traditional to visit the grave on significant birthdays, Christmas, anniversary of their death, Father's Day and other special occasions [Affidavit of Margaret White sworn 21 February 2018 [16]; Affidavit of Patricia Blackman sworn 21 February 2018 [15(d)]].
5. Witnesses for the Plaintiff further emphasised that it was important that the Deceased's family can visit his grave regularly in Sydney to mourn and maintain the site [Affidavit of Patricia Blackman sworn 21 February 2018 [15]]. It was expressed that the Deceased's spirit is connected to the land in Sydney. As stated by Patricia Blackman: His spirit has no connection to Cherbourg. He was conceived, born and bred here in Sydney. His community and kinship networks are in Sydney. Elders from Waterloo and Redfern acknowledge Patrick as part of their community [Affidavit of Patricia Blackman [15]].
6. Lyall Munro particularly highlighted the strength of the inner city Aboriginal community in the Redfern/Waterloo area [Affidavit of Lyall Munro sworn 1 November 2018 [22]]. There was evidence that the Deceased had particularly strong ties to the urban culture in Waterloo, in particular he had lived in the city all his life and had 'Waterloo' tattooed on his chest [Affidavit of Carly White sworn 29 October 2018 [13]]. Jenny Munro stated that it was her belief that: Because so many Aboriginal people these days do not have full traditional connection with the lore where their ancestors came from, the place where a person is born and raised is an important thing, because that is where they are grown up and accepted. I think that Patrick's country is Waterloo, because he was born there [Affidavit of Jenny Munro sworn 29 October 2018 [15]].
7. According to Lyall Munro's understanding of burial customs in the area: Because the Redfern/Waterloo Community is such a melting pot of different tribes and customs, the community has developed its own traditions in respect of burial. More often than not, a Deceased is buried where his immediate family is. In the Deceased's case, his wife and children are in Sydney. In some cases (definitely in the minority of cases) he or she is buried on Country. The location of a burial will depend on many factors, such as: a. Did he clearly express his wishes recently before his death? In the Defendant's case I believe when he was younger he said he wanted to be buried in Cherbourg, but in recent years, changed his mind and wanted to be buried in Sydney to be near his sons b. Does he know his Mob? In the Deceased's case, he identified as Wacka Wacka, but this may not in fact be correct because of the melting pot that Cherbourg was c. Did he practice the lore and culture of his tribe? In the Deceased's case, he did not practice traditional lore or culture of the Wacka Wacka People. He was not initiated and nor was his father d. What does the Deceased's wife say? e. What do his children say? f. What do his surviving parents say? [Affidavit of Lyall Munro sworn 1 November 2018 [30]].
8. Frances White stated that it was her experience that people were rarely buried on country. She states it is far more common to be buried near where the Deceased's family can visit [Affidavit of Frances White sworn 29 October 2018 [11]-[12]].

Expert evidence of Dr Sally Babidge

1. Dr Babidge provided an expert opinion report on 2 April 2018 in which she addressed various questions posed by the parties in respect of the Aboriginal communities in both Cherbourg and Redfern and the traditional laws and customs surrounding burials. Her opinions were accepted by both parties.
2. Dr Babidge stated that in her opinion the Aboriginal community in Redfern/Waterloo is recognised among Aboriginal people as a distinct Aboriginal community [Report [1.1]]. It is characterised by kinship ties, geographical focus on the centre of the built environment ('the Block') and authority figures in Aboriginal corporate bodies associated with the area. It is a community marked by members' mobility and as a centre of political activism [Report [1.1]]. She notes that identification with the Redfern/Waterloo community is non-exclusive, it does not preclude people also identifying within other communities of origin or residence [Report [1.13]]. Dr Babidge refers to evidence given in these proceedings, as well as other sources that demonstrate many Aboriginal people recognising and identifying with a distinct community.
3. Dr Babidge states that she was unable to reach a final conclusion about the specific customs relating to burial in the Redfern/Waterloo community but states that it is reasonable to infer that the community has customs relating to burial and mourning that are akin to customs of other Aboriginal communities that are comprised of peoples of multiple origin [Report [2.2]]. In particular, Dr Babidge highlights the customary importance of burial on country as well as proximity of burial to residence of surviving members of the deceased's family [Report [2.4]]. Dr Babidge referenced other cultural practices such as tending to the grave [Report [2.2]] and gathering with family following the passing of a deceased [Report [2.7]]. Although she states that indeed being buried 'on country' is emphasised by most Aboriginal people as the cultural ideal [Report [2.11]], in contemporary Australia: Given some Aboriginal people's high mobility over several generations, the notion of country may be far removed from the everyday life of their family and their own life. That is, at the very least, 'country' and 'family' may not be co-located. It is my experience that where this is the case, Aboriginal people emphasise that burial of a deceased person happens as close as possible to those they leave behind. This is because of the expectation that 'family' (close relatives) continue to visit the graves of the deceased which is about keeping an ongoing relationship with that member of the family through grave tending [Report [2.12]].
4. She goes on to state that there is a 'tension between the custom of burial on country and the custom of burial close to members of family where country and family are not co-located' [Report [2.13]]. She states that who then can resolve this tension is not a matter of law but 'made by family in terms of relative seniority of decision makers, forcefulness of argument, and other family members' backing of claims [Report [2.17]].
5. Dr Babidge further stated that she believed there to be a distinct Aboriginal community at Cherbourg [Report [6.3]]. She stated that: There are customary beliefs that guide decisions about where people with a 'traditional connection to Cherbourg' are buried and that they are dominated by the preference for burial on country. It is my opinion that these are customs and not 'cultural rules' or laws [Report [6.1]].
6. Dr Babidge further stated that there is insufficient evidence to make any strong conclusions about the burial practices in Cherbourg [Report [6.10]]. She stated: There is a customary preference for burial 'on country', that is, on ancestral lands. However, other customs about deceased persons also play a role in how families make these decisions [Report [8.2]].

Plaintiff

1. The Plaintiff submits that in determining who has the privilege of burying a body, the starting point is who has an entitlement to make application for letters of administration, which, as guided by the Succession Act and the relevant authorities, would be any spouse or de facto [Plaintiff sub [25]-[27]]. Given that the Deceased is an Aboriginal man who died intestate it is appropriate to take a flexible approach which considers factors such as any relevant spiritual or cultural matters, other than an entitlement to administration [Plaintiff sub [31]-[32]].
2. The Plaintiff submits that Carly White was in a de facto relationship with the Deceased and is thus the person best placed to take out administration of the Deceased's estate [Plaintiff sub [33]]. The Plaintiff notes that the Deceased left clothes at the Plaintiff's home, he cleaned, he ate meals there, and he was seen there many times. There is strong evidence of the public reputational aspects of the relationship, the funeral booklet for the Deceased described the Plaintiff as his life partner and there are numerous photographs taken of the Plaintiff and the Deceased together at the Plaintiff's home [Plaintiff sub [36]-[37]].
3. The Plaintiff submits that even if Carly White was not in a de facto relationship with the Deceased, then their two children would be considered next of kin under s 127 of the Succession Act and entitled to any estate. The person in a position to take out administration would be the Plaintiff as the mother of the oldest two children [Plaintiff sub [40]].
4. The Plaintiff then identifies the following other factors that may be relevant as identified in State of South Australia v Smith: 1. Spiritual or cultural values, 2. The wishes of the Deceased, and 3. The wishes of living close relatives.
5. With regard to spiritual or cultural values the Plaintiff notes that the Deceased's burial in La Perouse/Botany in Sydney, the burial place of many Aboriginal people from the Redfern/Waterloo community, is consistent with the customs and traditions of Aboriginal people who live in Redfern, and reflects his connection to the Aboriginal community who live there [Plaintiff sub [44]]. The Plaintiff notes the expert evidence of Dr Babidge that there is a separate and distinct Aboriginal community in Redfern as well as in Cherbourg, and that in contemporary Aboriginal life, it is common for someone to pass away at a place distant from their ancestral country [Plaintiff sub [45]-[46]]. The Plaintiff notes that, according to Dr Babidge, it is common following a death, for family and friends to gather at the home of the deceased. Here the community gathered at the home of Carly White [Plaintiff sub [47]-[48]]. It is further clear from the march and rally that the passing of the Deceased was a matter of public concern in the Redfern community [Plaintiff sub [49]]. The fact that significant funds for the burial and funeral were raised by the Redfern community shows that the Deceased was regarded as part of that community [Plaintiff sub [54]]. The evidence suggests that while the Deceased had only sporadic contact with his country in Cherbourg, he identified closely with the urban Aboriginal community in the Redfern/Waterloo area [Plaintiff sub [51]]. Importantly, being buried in La Perouse/Botany means that his close family and community, especially his children, will be able to visit him frequently and tend to the grave [Plaintiff sub [53]].
6. With regards to the wishes of the Deceased, the Plaintiff notes that there is a stark contrast between the evidence of wishes given by the Plaintiff and the Defendant. The Plaintiff submits that in the absence of any uniform evidence about the Deceased's wishes suggest that they should be regarded as a neutral factor in weighing up the matters for judgement [Plaintiff sub [60]].
7. With regard to the views of living close relatives, the Plaintiff notes that the views of the close relatives are polarised, with some wishing for the Deceased to remain at La Perouse/Botany and others wishing his body to be buried on country at Cherbourg [Plaintiff sub [63]]. The Plaintiff emphasises the wishes of the Deceased's two children and the importance of them being able to visit the gravesite on a regular basis [Plaintiff sub [65]].
8. The Plaintiff also submits that there are practical considerations that should be taken into account. The Plaintiff states that there are significant costs associated with the exhumation and transport of the body to Queensland [Plaintiff sub [66]].

Defendant

1. The defendant relied on the decision of Nicholson J in South Australia v Smith, stating that there were four fundamental considerations relevant to the resolution of the matter in dispute. These considerations are: 1. Who is entitled to obtain letters of administration, 2. Specific Aboriginal cultural matters, 3. The Deceased's wishes, and 4. The wishes of the Deceased's living close relatives.
2. The Defendant states that as there was no de facto relationship between the Plaintiff and the Deceased, Carly White is not entitled to obtain letters of administration and should not be considered as having the privilege of dealing with the Deceased's remains. The Defendant makes the following factual submissions on the issue: 1. The Deceased has had a number of relationships since he and the Plaintiff separated in about 2007 or about 2008 including with Dee Dee Honeysett, Mavis Stanley (with whom the Deceased had a son), Naomi Mitchell, and Kiya Morgan. In particular the Defendant points out that the Deceased was in a relationship from around 2011 or 2012 until the time of his death, he moved to Western Australia with Naomi, lived with her for a period of time and bought a ring for her [Defendant sub [21(b)]]. 2. The Deceased was not living with the Plaintiff in the years prior to his death, he was living mainly with Katherine Fisher in the months before his passing [Defendant sub [21(c)]]. 3. According to witnesses for the Defendant, the Deceased only visited the Plaintiff to clean her house and visit his sons, the members of the Deceased's family believed that the Deceased was not in a relationship with the Plaintiff [Defendant sub [21(e)-(f)]]. 4. Mail for the Deceased was being sent to the Defendant's house and Katherine Fisher's house [Defendant sub [21(g)]]. 5. The Defendant notes that the Plaintiff made various concessions as to her relationship with the Deceased, admitting that she was not in a relationship with the Deceased while he was in Western Australia [Defendant sub [23(b)]], and that the Deceased had been living everywhere in 2017 [Defendant sub [23(d)]]. The Plaintiff stated that the Deceased was 'in a relationship with everyone' [Defendant sub [23(h)]]. 6. The Defendant states that at the highest there is evidence of a sexual relationship and the belief of some of the family that there was a relationship, but that this relationship did not encompass sexual monogamy, living together or being financially dependent [Defendant sub [24]]. 7. The Defendant submits that the reason for gathering at the Plaintiff's house following the passing of the Deceased was because of the desire to have contact with the Deceased's children [Defendant sub [26]].
3. With regard to the Deceased's wishes, the Defendant submits that the evidence indicates that the Deceased wished to be buried in Cherbourg with his father and grandfather [Defendant sub [29]]. The Defendant notes that the following people gave evidence that the Deceased had expressed to them his desire to be buried in Cherbourg; the Defendant, Lillian Gray, Colleen Williams, Katherine Fisher, Chiara Williams, Russell Douglas-Fisher and Nathan Captain [Defendant sub [29(a)]]. The Defendant notes that the Deceased was very close to his father [Defendant sub [29(b)]]. The Defendant stated that the evidence from the Plaintiff was that he had expressed sadness at not being able to visit his father's grave, only the Plaintiff and Jenny Munro gave evidence on this matter [Defendant sub [30]].
4. With regard to any spiritual or cultural concerns the Defendant emphasises that the Deceased was a Wakka Wakka man and should be buried on the traditional country of the Wakka Wakka people [Defendant sub [31]]. The Defendant states that Aboriginal people have a special connection to their homelands and being buried on country is very important [Defendant sub [32(a)-(c)]]. The Defendant also submits that under Aboriginal customary law, the Deceased person's family including parents and immediate family has the right to decide where to bury their loved ones and the wishes of blood family is more important than the wishes of the spouse [Defendant sub [32(d)]]. The Defendant states that the Deceased was very respectful of traditional law and culture [Defendant sub [32(f)]]. The Defendant also stated that there were many people in Cherbourg who could visit and attend to the grave [Defendant sub [32(h)]].
5. With regards to the wishes of the Deceased's living close relatives, the Defendant notes that the following family members gave evidence supporting the Deceased's burial in Cherbourg; the Deceased's mother, Candice Williams, the Deceased's paternal aunt, Lillian Gray, the Deceased's brother, Russell Fisher Gray, the Deceased's sisters, Colleen Williams, Katherine Fisher and Chiara Williams, the Deceased's cousin, Ian Mason and the Deceased's nephew, Nathan Captain [Defendant sub [36]]. The Defendant submits that the evidence of the Plaintiff's family as well as the evidence from those in the wider kinship community such as Lyall Munro is irrelevant on this point [Defendant sub [38]-[39]].

Whether there was a de facto relationship

1. I am satisfied here that the Plaintiff and the Deceased lived together on and off over many years from when they first met around about the age of 16. No two relationships are identical and theirs had its ups and downs. It was from time to time interrupted by the Deceased being incarcerated, and/or being in Western Australia, and/or living elsewhere with other women and/or members of his family. However, over that period and from time to time, the Deceased and the Plaintiff had two children together, shared a house, and had a sexual relationship. Although their relationship to some extent was intermittent, the Plaintiff said that the Deceased forbade her from having a relationship with any other person and that she observed this. Notwithstanding his infidelities she took him back again and again over the years. There was no doubt in my mind that he always regarded the Plaintiff as an important person in his life and I have no doubt he loved his sons very much. His life was marred by the use and abuse of illicit drugs which no doubt influenced his behaviour. It was suggested in the evidence that some of the women he had liaisons with over the years were for the express purpose of facilitating his access to drugs. In the case of Mavis Stanley, he had a child. Ms Stanley was also apparently incarcerated from time to time and that child (Patrick) is being brought up by the Deceased's sister, Chiara Williams.
2. I am satisfied that the Plaintiff's evidence should be accepted that in the last few years, she and the Deceased reconciled. That implicitly and candidly on her part accepts that she and the Deceased had been separated for a time. It appears that notwithstanding the Deceased's infidelities, although frequent, he had possessions which he left at the house he shared from time to time with the Plaintiff which is where his sons have always resided. The photographic evidence available would suggest that from at least late 2016 (by reason in particular of the photos taken at Westmead hospital) the Plaintiff and the Deceased were together [Affidavit of Carly White sworn 29 October 2018, Annexure J]. There is also other photographic evidence showing the Deceased in bed at the Plaintiff's home [Affidavit of Carly White sworn 29 October 2018, Annexure J]. None of the other women with whom the Deceased had relationships was called to give any evidence and it is impossible to evaluate the nature of the relationship with any of them. On the evidence it seems to me that he did regard the Plaintiff's house as his home or at least one of his homes. I accept that from time to time he may have lived with his sister Katherine and his mother. That was however, on the evidence, relatively transient as well.
3. It appears to me that considering the reputation and public aspects of the relationship, the Plaintiff and the Deceased clearly appeared to be in a de facto relationship. There is no evidence for example that any of the other women were at his funeral. What is clear is that the Plaintiff, who was described as his life partner in the materials circulated for the funeral [Affidavit of Carly White sworn 29 October 2018, Annexure D], was also the person who took on the responsibility for notifying various people including the Deceased's sister Chiara of his death. The evidence clearly shows that many persons gravitated to the Plaintiff's home on the day of the Deceased's death, no gathering of family and friends took place elsewhere at that time.
4. Living together permanently under the same roof is not determinative of whether a relationship qualifies as de facto. Clearly, the relationship between the Plaintiff and the Deceased from time to time fitted that definition adequately. They had a sexual relationship, they had children, and from time to time the Deceased performed, on the evidence, domestic activities although he never made any financial contribution to the household. I am inclined to think that prior to his death and for about a year or so prior, their relationship would qualify as a de facto. He was not at home every night and he was unfaithful as and when it suited him but nonetheless in the period prior to his death he shared a bed from time to time with the Plaintiff and was also at their home for the purposes of visiting his sons. De facto relationships like other relationships are not always monogamous.
5. His sister, Katherine Fisher, said the Deceased had in the weeks before his death commenced a "relationship" with Ms Kiya Morgan. That may well be so, and given his conduct otherwise it may well be that he had some sexual relationship with her. It is also reasonably clear that he moved around various places and from time to time slept in Sydney Park.
6. Notwithstanding these matters which do detract from a finding that the Plaintiff was the Deceased's de facto, I have serious reservations as to the veracity of some of the Defendant's witnesses including the Defendant herself. Grief to one side, they were motivated in my view by anger directed at the Plaintiff and I think were in no mood to be objective or necessarily truthful about their evidence. The absence in the evidence from the 'other' women is a very important factor in my reservations about the nature of some of the Defendant's evidence on this topic.
7. In this case anger, mixed with grief has had the effect, in my view, of distorting the ability on the part of some of the Defendant's witnesses fairly to recount the Deceased's activities. Some of this anger was I consider, quite unfairly directed towards the Plaintiff. The fact is there is evidence from Ms Frances White, Ms Munro, Ms Blackman, and Ms Johnson which suggests plausibly in my view, that the Deceased treated the Plaintiff's house as his home or at least one of his homes. He cleaned there, ate there, had some of his possessions there and his children were there. I am reasonably satisfied that for at least the year prior to his death the Deceased and the Plaintiff were in a de facto relationship.
8. However, even if the Plaintiff does not strictly qualify as a de facto, the children of the Deceased are in my view his next of kin under s 167 of the Succession Act.
9. However, it is important to note that the significance of the ability to apply for administration may be awarded less weight in cases concerning Aboriginal deceased. Further in circumstances where the Deceased had no assets and there was likely to be no application for letters of administration, the existence of a de facto relationship may not be determinative.

Religious, cultural and spiritual concerns

1. The Court may also have regard to spiritual or cultural values in resolving disputes over the privilege to dispose of a Deceased's remains.
2. The Plaintiff's case is that the Deceased was born and raised in Redfern not in his father's blood country, Cherbourg. Burial at La Perouse/Botany, a place where many Aboriginal people are buried, is reflective of his bond and connection with Redfern/Waterloo, which according to Dr Babidge is recognised among Indigenous people as a distinct Aboriginal community. And although a region of relatively recent origin it is nonetheless characterised by kinship ties, geographical focus on the centre of the built environment ('the Block') and authority figures in Aboriginal corporate bodies associated with the area. In addition Aboriginal people from across NSW and the Continent identify with a Redfern/Waterloo community, and the political activism and resistance to assimilationist government policies. Dr Babidge of course also accepts that Cherbourg is such an area as well. Although unable to identify any specific traditions that apply in Redfern or Cherbourg, Dr Babidge says that although the concept of blood connection to country is still important in contemporary Aboriginal life, it is common for many people to pass away some distance from their ancestral country. In particular Dr Babidge referred to the importance of being able to visit and tend to the grave, indeed this was emphasised in the evidence of many other witnesses.
3. The Deceased clearly viewed himself as part of the Redfern/Waterloo community. Amongst his many tattoos was the word 'Waterloo' tattooed on his body together with the names of his sons. He played football in the area, went to school there and clearly the Redfern community regarded him as one of them. The latter is very much supported by the reaction of so many people in the area after his death. I am satisfied that the Deceased associated predominately with an urban Aboriginal culture. Over the years he had travelled to Cherbourg it seems on only three occasions [T162/35-163/14]. His contact physically at least with Cherbourg was somewhat sporadic. However it is also fair to observe that he was brought up respecting Aboriginal traditions as they pertain to country.
4. Dr Babidge acknowledges the significance of burial on country. But she also comments that this is an ideal and there is a relative preference to be buried near family because of the importance of family maintaining contact with the Deceased person through visiting their grave. I should note that only one of his relatives lives near Cherbourg, his auntie Lillian. Apart from her, almost without exception, everyone else would have to travel some distance to visit his remains in Cherbourg. I consider it would be a considerable hardship for his sons and even his mother, notwithstanding her current stance. In my view, notwithstanding his visits to Cherbourg, and his deep affection and respect for his father and grandfather as a matter of practical reality, he had a much more intense and passionate attachment to the Redfern/Waterloo area, not just because of his urban lifestyle but because that is where his sons and the Plaintiff reside, as well as his mother and other family members. A decision to bury the Deceased in Cherbourg would, in my mind, give that location undue emphasis.
5. There is a tension between the more traditional customs in Cherbourg and a more urban understanding of Aboriginal law/lore in the Redfern/Waterloo community. Clearly the Deceased had a strong connection with both communities and he was indeed seen by many different people as belonging to both locations.
6. The evidence, which I accept, is to the effect that the Plaintiff and her sons visit the grave regularly. As no doubt do others. His mother feels presently unable to do so, partly no doubt because of this case, but also candidly indicated that she would probably visit his grave if orders were made that his body remains at La Perouse/Botany. Sadly she has forced herself to grieve without importantly visiting his grave. The Plaintiff gained an understanding from the Deceased that he had been traumatised not being able to regularly visit his own father's grave. I accept that the ability of close family members to be able to visit and tend to the grave should be considered extremely important and awarded considerable weight.

The Deceased's views

1. I am satisfied that on the evidence that the Deceased was in many respects torn on the issue of where he wished or thought he should be buried. He clearly from time to time, acknowledged traditional values in indicating his wish to be buried on country. Much of that evidence comes from the Defendant's witnesses. I am not entirely satisfied as to this evidence. It is not clear when and in what circumstances he expressed that view, bearing in mind that for significant periods he was abusing illicit drugs and incarcerated. However, I could well understand why he would express those views, given that he was proudly Aboriginal, and no doubt felt a need to externalise his sense of filial duty.
2. I am also satisfied that the Plaintiff understood from her dealings with the Deceased, that he had serious concerns his sons could not, or would have considerable difficulty visiting his grave after his death if buried on country. This was something that he was very deeply affected by given his inability himself to visit his father and grandfather's grave for reasons of distance and perhaps cost. I am satisfied he clearly did want to be able to visit his father's grave and was undoubtedly distressed at not being able to do so as regularly as he would have liked. The reality is he regarded himself as part and parcel of the Redfern/Waterloo precinct. He was also very concerned for his sons and their upbringing. These unresolved issues undoubtedly caused him a great deal of distress. It may well be that he did express from time to time and to numerous of his relatives a desire to be buried on country, but I also accept the Plaintiff's evidence that she gained a very clear understanding and impression to the contrary.

Wishes of any living close relatives

1. There was some argument from the side of the Defendant that particular weight should be given to the wishes of only the Deceased's close 'blood relatives'. The Plaintiff contended that the Court should take into account the wider kinship ties present in the Redfern/Waterloo community. Without having to resolve this issue finally, it appears clear to me that there was a division between the Deceased's blood relatives on any account as to where the Deceased's final resting place should be.
2. It is clear from the evidence that initially it was considered appropriate to bury the Deceased at La Perouse/Botany. Although it is also reasonably apparent from later events that differences of opinion emerged relatively early. It is clear that from the point of the march in Redfern in the days following the Deceased's passing, there was confusion about where he ought to be buried. This is evident through the various statements of Willie Gordon on the day. There was clearly fundraising for a funeral happening within both the Redfern/Waterloo and Cherbourg communities. The initial consensus, if that is what it is, was prior to what later emerged as somewhat hardened views for and against La Perouse/Botany as the final resting place. I do not believe that this initial agreement should be considered binding on those who subsequently changed their minds.
3. Particular emphasis should be placed on the wishes and needs of the children in this case. The Plaintiff asserts, and the evidence seems to show, that when she visits the Deceased's grave she has taken their two sons with her. I am satisfied that they would likely wish to continue visiting their father's grave as and when they can. Ms Lane for the Plaintiff submits that Carly White should be regarded as speaking for the wishes of her and the Deceased's children [T150/31;156/10], and I see no reason why I should not draw this inference. These are young boys, who are not yet able to fully express their views as adults. Moreover, their interests are likely to be affected by this decision for a long time going forward. Indeed the evidence shows that the Deceased himself was significantly affected all of his life by his father's passing. In my view, the wishes of the children, in this case are of the utmost importance and are afforded significant weight in my decision.

Conclusion

1. In the end, a Court has to make an evaluative judgement as to who is best suited or best able to deal with the remains of the Deceased given the various factors identified in the authorities. In my view in this case the Plaintiff and/or her children are the persons best able to deal with the Deceased's remains consistent with his background, some of his wishes and the importance of the urban Aboriginal culture he was so deeply absorbed by.
2. Had I decided otherwise, a question of whether exhumation should or should not be ordered would have arisen. As it was not a topic of argument before me I make no final determination on the matter. However I do note the position of Justice Young in Tamworth that (at 689), 'once a body had been buried, it was not to be disturbed'. However I also note the relevant principles of Division 4 of the Public Health Regulations 2012, which now guide the process of exhumation.
3. I would propose to make the Orders sought by the Plaintiff and make no Order as to costs. I would invite the parties to submit a form of Order accordingly.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2019