DODD v JONES No. SCGRG-99-1224 Judgment No. S458 [1999] SASC 458

4 A number of affidavits have been tendered. I have received them as evidence, subject to having excluded some of the material. There has been no cross-examination on the affidavits. I do not think that cross-examination would have been helpful.

5 The deceased died on 9 October, 13 days have passed since then. It is desirable to resolve the matter so that the deceased can be buried.

6 That is why I do not propose to reserve my decision.

7 The plaintiff has lived with the deceased since early 1990. They have two children. The plaintiff and the deceased and their children lived at Port Augusta for some years. That was where they were living when the deceased died.

8 The deceased owned some property at Port Augusta, but not property of any great significance.

9 The plaintiff says that the deceased had no real links to Oodnadatta. I am not sure about that. He went there from time to time, at least in the course of his employment. It seems that he maintained some contact with his family at Oodnadatta.

10 Nevertheless, the fact is that the deceased has made his life with the plaintiff in Port Augusta for some years, and on the material before me there is every reason to think that he would have regarded himself as part of the family unit at Port Augusta.

11 It is quite understandable that the plaintiff and her children would wish to bury the deceased at Port Augusta. I say "quite understandable" because it is a natural human wish for a partner of a deceased person to wish to bury that person where they lived and where the partner will be readily able to visit the grave.

12 Having regard to the period of time for which the plaintiff and the deceased lived together, the plaintiff is entitled to a declaration under the Family Relationships Act that she is the deceased's putative spouse or was at the time of his death.

13 As a putative spouse the plaintiff would have a strong claim to be appointed administrator of the deceased's estate, were one to be appointed.

14 On the evidence before me the deceased did not leave a will. I agree with the submission of Mr Roder, that on the material available, it is unlikely that letters of administration would, in fact, be taken out in the ordinary course of things. Nevertheless, were they to be necessary or wanted, the plaintiff would have what seems to me to be the best claim to take them out.

15 The defendant in these proceedings is the deceased's father. The defendant is an Aboriginal man, although he does not live in the traditional Aboriginal style or life as I understand things.

16 The defendant claims the right to determine the place of burial of the deceased. He relies upon principles or practices of Aboriginal culture and possibly also of Aboriginal law.

17 He claims the right, in particular as the head of the family, to decide where the deceased will be buried. A number of members of the family of the deceased are buried at Oodnadatta, where the defendant wishes to bury him. On the other hand it does appear that the grandparents of the deceased are buried at Port Augusta.

18 In short, from the defendant's point of view, it is of great importance for cultural and religious reasons that the deceased be buried at Oodnadatta with his other family members.

19 Mr Roder rightly pointed out that the claim which the defendant makes is not one based simply on emotion or even simply on family wishes. It is a claim derived from an organised system of beliefs and cultural practices, and a system which the law and our society should respect as far as possible.

20 However, as I put to Mr Roder in the course of submissions, I do not agree that the origin of the claim made by the defendant automatically gives it priority over the claim made by the plaintiff.

21 Her claim is one which, first of all, has some support in common law principle, by which I mean that as the person with the best claim to letters of administration she would appear to have some recognition from the common law. Moreover, her claim simply as the surviving partner, is one which would be widely respected in European society. As well, she expresses views which would be widely shared in Australian society.

22 The defendant has filed an affidavit setting out his beliefs and wishes. That affidavit is supported by a number of affidavits from family members of the deceased and from others.

23 The affidavits tend to confirm that it is very important, from the point of view of Aboriginal culture, that the deceased be buried with his family members in the area from which he came.

24 I have no reason to doubt the truth or the genuineness of these statements in the sense that I accept that they reflect genuinely held beliefs.

25 The plaintiff has filed a number of answering affidavits challenging a number of the claims made about traditional law and culture. It is impossible for me to resolve these issues, nor do I think that I need to do so. I am content to accept that the defendant and his family are telling the truth as they see it, and that what they tell me reflects genuinely held cultural beliefs.

26 The plaintiff has also disputed a number of other claims made by the defendant, or those who filed affidavits in support. Again, I think it is unnecessary to decide those matters. Unfortunately, but not surprisingly, the dispute has become somewhat personal in some respects.

27 However, I do emphasise that I accept the plaintiff's claim that she and the deceased lived happily at Port Augusta as man and wife. That while living at Port Augusta the deceased showed no particular inclination to follow Aboriginal customs in anyway. I also accept her evidence that he was an occasional church goer. I accept her evidence that she genuinely wishes him to be buried at Port Augusta, and I accept her evidence that in every sense that is where the family unit was located.

28 I should add, that on the material before me and in the time available, it is impossible for me to resolve the dispute about what the deceased himself has said from time to time about his family at Oodnadatta, his links to his family, or his own wishes as to his place of burial. Once again, I do not think that to spend further time on that matter would advance things. I suspect I would be left with conflicting material.

29 In the end, it seems to me that I am confronted with two fairly clear and opposing claims. One is the claim of a de facto spouse, which has some support by reference to common law principles, and also gets the support of community attitudes that are fairly widespread in Australian society. The other is the claim of the father, which is supported by genuinely held beliefs about Aboriginal custom and law, beliefs which should be respected as far as possible.

30 There are a number of cases suggesting that usually the person with the best claim to the letters of administration of the estate of a deceased, who dies without making a will, have the right to determine the place and manner of burial. I refer to two in particular, they are Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680 and Meier v Bell, Butterworths Unreported Cases BC 9700457. In Jones v Dodd (1999) SASC 125; 202 LSJS 102 the Full Court accepted that this was the usual approach. That is, by the usual approach I mean the reliance on these common law principles. But the Full Court did not accept that this was a binding principle to be applied in all cases, especially if there was no likelihood that letters of administration would be obtained: at 111 in particular. Perry J, with whose reasons the other members of the court agreed, said in particular at 111:

"In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased bearing in mind also any religious, cultural or spiritual matters which might touch upon the matter in question."

31 To understand that statement in context, it is important to bear in mind that 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.

32 Also in considering that statement I have to bear in mind that while the wishes and views of the defendant could be classed as religious and spiritual, and perhaps the wishes and views of the plaintiff cannot, nevertheless the plaintiff's own beliefs have cultural significance because they are beliefs that would be widely shared in contemporary Australian society.

33 So it seems to me that the de facto wife of the deceased, and his children, do have a strong claim to have their wishes respected. Their wish to bury the deceased where he and they lived is an understandable one. One would expect that usually the wishes of a spouse, either at law or de facto, would be respected in relation to the place of burial.

34 As I have said, the defendant's claims are also significant. He is the father of the deceased, and he does rely upon important Aboriginal cultural practices and beliefs.

35 Indeed, in Jones v Dodd, where the facts were rather different, the Full Court held that the claims there of the father of the deceased, supported by Aboriginal culture and spiritual beliefs, should prevail over the claim of a former de facto wife, and the claim which she made on behalf of the children of the deceased.

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.

37 In this case, I consider that the plaintiff's claim should prevail. First of all, common law principles appear to give her the stronger claim and those principles are relevant although not decisive. Secondly, the claim of a de facto spouse of nine years standing, who has two children by the deceased, is a strong one on any view of the practices and attitudes that prevail in our society.

38 I fully recognise the force of the defendant's claim as father, and the fact that this does proceed from an organised system of beliefs. However, having no choice but to prefer one view or the other I do so on the basis that the common law principle, combined with the strength of the claim made by a de facto spouse, entitles the plaintiff to succeed.

39 In so deciding I have attempted to apply the principle stated by the Full Court in Jones v Dodd, and to weigh the matters which the Full Court said should be weighed.

40 In the end, trying to crystallise things, it is the fact that the plaintiff gets some support from common law principles and the strength of her claim as a de facto spouse which entitled her to succeed. Although it is not the full picture, the fact is that the deceased had left his family and had gone to make his life and his home with the plaintiff, and her children, in Port Augusta. It is for those reasons that I find in favour of the plaintiff.

41 Nevertheless, I add that the plaintiff should recognise the views held by the defendant and other family members. 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. Accordingly, I declare:

1 That the plaintiff is entitled, as against the defendant, to have the body of the deceased delivered to her for the purpose of making burial arrangements.

2. That the plaintiff is entitled, as against the defendant, to bury the deceased at Port Augusta if she so wishes.

3. Order that there be no order as to the costs of the application and order.