Darcy v Duckett

Nature of jurisdiction 1. Notwithstanding the previous exercise of power under the Coroners Act, and the naming of the Coroner's Court and the Deputy State Coroner as parties, the resolution of "disputes involving the right to bury a deceased person" are justiciable before this Court as part of its inherent jurisdiction: South Australia v Smith 119 SASR 247; [2014] SASC 64 at 5; Minister for Families and Communities v Brown [2009] SASC 86; AB v CD [2007] NSWSC 1474 at [26]. It is important to emphasise that the proceedings do not involve the invocation of the Court's supervisory jurisdiction: s 69 Supreme Court Act 1970 (NSW).

Applicable principles

1. The applicable common law principles in this area of discourse were stated by Young J (as his Honour then was) in Smith v Tamworth City Council (1997) 41 NSWLR 680. So far as they are relevant to this case, his Honour summarised the relevant principles in the following way (at 693-4): "1. If a person has named an executor in his or her will and that person isready, willing and able to arrange for the burial of the deceased's body, theperson named as executor has the right to do so. 2. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body. 3. A person with the privilege of choosing how to bury a body is expected toconsult with other stakeholders, but is not legally bound to do so. 4. Where no executor is named, the person with the highest right to take outadministration will have the same privilege as the executor in proposition 1. 5. The right of the surviving spouse or de facto spouse will be preferred tothe right of children. 6. Where two or more persons have an equally ranking privilege, thepracticalities of burial without unreasonable delay will decide the issue."
2. It has, however, been recognised that these principles are not fixed rules which deal exhaustively with the subject. In South Australia v Smith, Nicholson J, after a review of the authorities, particularly in South Australia, concluded (at 255 [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. This was the approach applied, more recently, by this court in Minister for Families and Communities v Brown. In that matter, Gray J considered not only which party had a stronger claim under common law, but also the 'lifestyle, relationship and practices of the deceased', in reaching a conclusion as to burial rights."
3. The very helpful written submissions of Ms Ronald SC and Mr Beaufils for Ms Darcy, and Ms Lane of Counsel for Ms Duckett, demonstrate a similar flexible approach has been adopted in other States. I am satisfied that this same flexible approach should be applied in New South Wales. This consideration is significant because Mr Darcy, Ms Darcy and Ms Duckett are all Australians of Aboriginal heritage. The undisputed evidence before me is that, in particular, the place of burial is a matter of cultural, spiritual and religious importance to Aboriginal Australians.
4. Counsel for the parties, very appropriately in my view, agreed that the hearing should proceed on the basis of the affidavit evidence only, without cross-examination of any deponent. This approach accords with authority: Keller v Keller [2007] VSC 118; (2007) 1 ASTLR 400.
5. Mr Darcy was born on 6 January 1976 and was aged 40 at the date of his death. From the affidavit of Ms Darcy, sworn on 30 June 2016, I accept that Mr Darcy died intestate and no person has made any application for letters of administration at this stage. As at the date of his death he had an entitlement to a share in his late mother's estate, which Ms Darcy estimated to be worth between $130,000 and $150,000. Ms Darcy is Mr Darcy's youngest sister and they have a younger brother. They also have "a half-sister and four half-brothers" from their father's previous marriage.

The plaintiff's evidence

1. The Darcy family are from Gulargambone. The Darcy family are of the Weilwan people whose country includes the area around Gulargambone. Ms Darcy says that she has received the tradition handed to her from Weilwan elders; that the Weilwan people "were a big tribe of traditional people in Northern New South Wales"; and that they continue to follow and practise their traditions. She regards it as part of their "story and tradition" that she has received from the elders of her people that her ancestors must be buried on Weilwan country. The Weilwan people believe that if a Weilwan person is not buried on country, his or her soul will not rest properly. Ms Darcy believes from what she has been taught that "when our people are not buried on their country with their ancestors their spirit gets lost and would always be travelling and unable to rest". She has given evidence of the strong connection her family has with Gulargambone; of the many ancestors and relatives buried there; and of Mr Darcy's return to Gulargambone when he was living away to attend funerals of relatives.
2. It is Ms Darcy's evidence that Mr Darcy always identified as a Weilwan person. When asked in her presence "which mob he was", he would say "Gulargambone" or "Weilwan".
3. He lived with the family in Gulargambone until moving to Sydney as a teenager in an attempt to break into professional rugby league. He returned to Gulargambone at the age of 20 and soon after met his first partner, Minnie Creighton. Mr Darcy and Ms Creighton then moved to Tamworth, about three hours from Gulargambone. They have four children. Ms Darcy's parents moved the family to Scotts Head in 1998 because their mother obtained a job in Kempsey. Mr Darcy, Ms Creighton and their children followed them there, moving into a house in Bowraville, owned by his parents. Ms Darcy says it was here that he first met and formed a relationship with Ms Duckett, "while he was still with Minnie." Ms Darcy does not regard the relationship between Ms Duckett and Mr Darcy as having been permanent. She believed they had been "together on and off for a number of years" before Mr Darcy's death.
4. Ms Darcy was aware of her brother having a drug problem. She believes that, at the time of his death, he was living in Sydney in breach of the conditions of parole he had been granted in relation to a charge of robbery. She says he was staying with Ms Darcy and her partner in Waterloo at the time of his death. The previous morning, Ms Darcy had visited a doctor with him when he received a prescription for a strong narcotic pain killer. I interpolate that this may have been a drug he had been abusing.

The defendant's evidence

1. Ms Duckett was born 10 August 1984 and is 31 years old. She describes herself as the de facto spouse of Mr Darcy. She met him when he was living in Bowraville with his first family. This accords with the move to Scotts Head. They were neighbours. She acknowledges that their relationship commenced when Mr Darcy was still with Ms Creighton. Ms Duckett and Mr Darcy had four children together, now aged between 5 and 15 years. They lived together from about the year 2000. She describes their relationship as strong, but acknowledges "ups and downs". Notwithstanding this, she says "we did not part". She visited him when he was in prison on remand between August and November 2015. He wrote to her from prison.
2. Her evidence is that the Darcy family were unhappy about the formation of their relationship, particularly the circumstance of them getting together. She says that she was never accepted by the family. Her evidence is that Mr Darcy's family made him choose between her and Ms Creighton, and he chose her. I gather she believes the family did not approve of his choice. From then on they made their life together in Bowraville.
3. She says she is a person of the Gumbaynggirr people whose country is around the Coffs Harbour region of New South Wales. It is Ms Duckett's evidence that during their time together living at Bowraville, Mr Darcy became involved in Gumbaynggirr community activities, including with the Gumbaynggirr elders. The Gumbaynggirr language remains strong and Mr Darcy learned to speak some words. He encouraged their children to become fluent in the Gumbaynggirr language and knowledgable about their culture. Perhaps contrary to Ms Darcy's evidence, Ms Duckett's evidence is that Mr Darcy would introduce himself as having been born out west in Gulargambone, but that he was from Bowraville in Gumbaynggirr country.
4. Annexed to her affidavit is a letter signed by Mr Darcy to the solicitors acting for his mother's estate, instructing them that his affairs were not to be discussed with anyone but his partner, "Maxine Duckett". He wrote, "I am not happy with what my family members [have] been doing and saying without my [consent]." Amongst those who were not to be informed about any of his business were his younger brother John Darcy, his younger sister, Angel Darcy and his aunt Levina Reid.
5. As Mr Darcy's family would not accept Ms Duckett or their children, Mr Darcy would say that he was not happy about going to Gulargambone. Ms Duckett also said the following (at [14]): "The Deceased said to me on several occasions in the last few years: 'No I don't want to be buried out there' referring to Gulargambone. He said 'I don't want to be buried out there, this is my home, this is where we have raised our kids, and people accept us." After a family dispute about where her older brother was to be buried, Mr Darcy said to her "I would prefer to be buried me and you together in Bowraville cemetery". Her evidence is that he said something to the same effect to her older sister. He repeated this preference on a number of occasions in different situations.
6. Ms Duckett wishes to honour his intentions. She is concerned that if Mr Darcy is buried in Gulargambone she and her children will not be able to visit his grave. The delay in putting Mr Darcy to rest has been hard on their children.
7. Ms Duckett believes from her discussion with elders in the Gumbaynggirr community that because of his de facto relationship with her, and as his children are Gumbaynggirr children, he is "respected and accepted as a person who is not a stranger in our community."

Evidence from the community

1. Ms Levina Reid affirmed an affidavit on 21 June 2016. Ms Reid is the maternal aunt of Ms Darcy and Mr Darcy. She is the person named in Mr darcy's letter to the solicitors. Obviously she is a Weilwan person, but she did not live in Gulargambone after the age of 5. She resides at Nambucca Heads. She has always returned to Gulargambone when she can. As a maternal aunt, she is like a mother to her nieces and nephews. In accordance with tradition, Mr Darcy called her, "Mum." She gives evidence that there are several generations of Mr Darcy's ancestors buried at Gulargambone. It is her belief that Weilwan people must be buried at home on Weilwan country. She was not aware of any contrary desire of Mr Darcy. It is part of her traditional beliefs that if Mr Darcy is not buried at Gulargambone, his parents will not rest and he will be surrounded by other tribal people who "would torment him for being on their traditional ground." She attaches a letter from the Weilwan Local Aboriginal Land Council stating that Mr Darcy is of the Weilwan people and that his family wish him to be buried in Gulargambone with his ancestors. It is her understanding of the traditional law of all Aboriginal peoples "that it genuinely understood that a person should be buried on country". That a person has lived away from their country for many years makes no difference to this requirement.
2. Ms Emily Walker is an Elder of the Gumbaynggirr people. She is now 80 years of age. She knew Mr Darcy through his aunty, Ms Reid. She says (at [4]): "In the Traditional Aboriginal culture the spirit child of the country of birth inhabits the new born baby. The Australian Institute recognise that remains must be restored to their own country for e.g. in August 2016 Aboriginal remains of two Gumbaynggirri were handed back by the National Museum by Canberra and reburied in their home land at Boambee, New South Wales." (sic.) Ms Walker believes the same must be done for Mr Darcy.
3. Ms Maxine Jarrett affirmed an affidavit on 6 December 2016. She is a Gumbaynggirri person aged 58. She is Ms Duckett's aunt and knew Mr Darcy since He started living together with Ms Duckett. She is an elder in the Gumbaynggirr community and "can talk about aspects of Gumbaynggirr law and custom". She has been involved with the Muurrbay Language and Culture Centre in Nambucca Heads since the late 1990s. She is fluent in the Gumbaynggirr language and has been a language teacher at various schools in the Nambucca Valley. Her evidence is that Mr Darcy was accepted as part of Gumbaynggirr society and that there were no complaints about him living in Gumbaynggirr country with Ms Duckett. Gumbaynggirr people can marry outside the tribal group. But "if they do, the person who comes into Gumbaynggirr country needs to follow Gumbaynggirr rules." Mr Darcy did this and gave respect to Gumbaynggirr elders. She said that people who marry into the Gumbaynggirr society are adopted into the tribe. "In the old days (Mr Darcy) would have been initiated into the tribe, but these days people just accept them as part of the community" (at [8]). She says, at [9]: "A person who is adopted into Gumbaynggirr society can be buried in Gumbaynggirr country. We would want a person who was Gumbaynggirr to be buried on Gumbaynggirr country, including if they are adopted by the tribe. If I went to someone else's country to marry, I would be expected to follow their law and custom. The Deceased followed our customs, so it is right that he should be buried in Bowraville." She also says, at [11]: "If the old spirits of this country had not wanted him to be here they would have moved him. They would have given him an uncomfortable feeling so that he would not have felt right here. I have felt this feeling myself outside my country - that I have to go home. The Deceased was at home in Gumbaynggirr country".

Determination

1. I accept that Mr Darcy and Ms Duckett lived together in a bona fide permanent de facto relationship. As is not uncommon in relationships, they probably had good and bad times. They were obviously separated when he was in custody on remand in 2015. But I accept Ms Duckett's evidence that she visited him and he wrote to her. The letter to the solicitors of 11 April 2016 demonstrates to my satisfaction that their relationship was continuing shortly before his death. It also suggests that he may not have been on the best of terms with his birth family, including Ms Darcy and Ms Reid, at that time. Ms Duckett was with him in Sydney when he died.
2. I accept that unlike Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125, Mr Darcy did leave an estate of some value and that letters of administration, if applied for, would serve a real purpose. These findings engage the common law rules as summarised by Young J in Smith v Tamworth City Council. Ms Duckett is a surviving de facto spouse, and Mr Darcy died intestate. This being so, there is no person who has a better claim to the privilege of burying Mr Darcy under the common law rules. As surviving spouse, she is also within the class of persons to whom the Court is empowered to grant letters of administration: s 63 Probate and Administration Act 1898 (NSW).
3. I accept, however, as Nicholson J said in South Australia v Smith that 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. Nonetheless, it is important to bear in mind that the common law rule favours Ms Duckett's claim over Ms Darcy's claim.
4. The evidence satisfies me that even if their relationship was troubled from time to time, and perhaps marred by the use of illicit drugs, Mr Darcy and Ms Duckett had a genuinely close and loving relationship which produced four children. I think it undeniable that Mr Darcy did choose to leave his native Gulargambone to make his life and his home with Ms Duckett, principally, in Bowraville. He apparently trusted her to look after his financial affairs, if I may say so, over and above the members of his birth family.
5. I turn then to the evidence concerning the cultural, spiritual and religious significance of "country" in Aboriginal law and custom. I do not regard the evidence as not necessarily conflicting. Just as secular law is nuanced and subject to refinement and exceptions, it seems that the Aboriginal law and custom of which I have received evidence in this case is similarly nuanced. If I may put it this way, I fully accept that the general rule, the strong preference, is for an Aboriginal person to be buried on country. I accept that part of the justification for this is that the soul will not be permitted by the souls of the people of that country to rest if a person is buried on other country.
6. It makes sense that there may be exceptions to this general rule in a case like this where a Weilwan man has chosen to make his life and home with a Gumbaynggirr woman on Gumbaynggirr country and he has been accepted as part of that community by the Gumbaynggirr people. I accept the evidence that this was Mr Darcy's situation during his life, after his permanent move to Bowraville.
7. I acknowledge that there is some conflict between Ms Darcy and Ms Duckett as to how Mr Darcy identified himself to others. No doubt, in more recent years since 2000, Ms Duckett has been in a better position to witness these matters than Ms Darcy. I accept Ms Duckett's evidence that he encouraged his daughters to take pride in their Gumbaynggirr heritage, culture and language. I also accept that there were occasions they discussed their own discuss their own wishes about burial. This must happen in all permanent relationships. To the extent relevant, I accept that his wishes were to be buried in Bowraville, to be close to Ms Duckett and their children.
8. I accept the complete sincerity of Ms Darcy's claim and her belief that her brother should be buried on his home country at Gulargambone. I cannot do better than quote Doyle CJ from Dodd v Jones [1999] SASC 458 (at [36]): "Sadly, the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weigh the competing claims and arrive at what one would truly call a legal judgment. I understand and respect the wishes and beliefs of the plaintiff and of the defendant. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party."
9. As in that case, common law principles appear to give Ms Duckett, as the surviving de facto spouse, a strong claim even if those principles are not necessarily decisive. Moreover, the claim of a de facto spouse of 16 years standing, who has four children by the deceased, "is a strong one on any view of the practices and attitudes that prevail in our society" at [37]. That Mr Darcy should be buried in his adopted country is an outcome which is acceptable under the view of Aboriginal law and custom, I have formed from the evidence available to me.
10. Consistently with common law principle, Ms Duckett should recognise and respect the views held by Ms Darcy and other members of Mr Darcy's birth family. As Doyle CJ remarked in Dodd v Jones "she should inform them of the funeral arrangements that she makes and she should permit them to attend the funeral if they wish to do so": at [41]. Moreover, it would be desirable if any essential requirements of the Weilwan funeral ceremony could be taken into account, and if possible, adopted for the burial of Mr Darcy.
11. Before pronouncing orders, I wish to express my gratitude to all counsel who have taken this matter on a pro bono basis. I acknowledge that each of them has worked assiduously to assist the court and to present a case in its most attractive light from the point of view of their client. Had counsel not been prepared to accept the pro bono referral, it is doubtful that this controversy could have been settled or resolved according to law. Counsel have provided a very valuable public service which should be acknowledged.
12. I declare: 1. That the first defendant is entitled, as against the plaintiff, to have the body of Rodrick Darcy delivered to her for the purpose of making burial arrangements. 2. That the first defendant is entitled, as against the plaintiff, to bury Rodrick Darcy at Bowraville if she so wishes. 3. Order that there be no order as to costs.

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