Dow v Hoskins [2003] VSC 206

5. The defendants to the summons and the motion are the elder sister of the deceased, his elder brother and his three younger brothers; five defendants in all. By cross summons, filed 5 June 2003, the five defendants seek orders that as the next of kin of the late Sydney Edward Hoskins, they bear the responsibility for disposing of the body of the deceased and to that end for making funeral and burial arrangements in their discretion.

8. The solicitors for the plaintiff, Ms Dow, are the Victorian Aboriginal Legal Service and the solicitors for the defendants are Holding Redlich.

11. The deceased died on 27 April 2003, aged 30 years. He and the plaintiff had two children, Marlie, born on 14 July 2000 and Archie, born on 7 June 2001.

14. The factual material bearing upon the proper resolution of the summonses is contained in a number of affidavits: of the plaintiff Ms Dow, of 2 and 6 June 2003, and the exhibits to her first affidavit; next, of Mrs Anne Kenney of 6 June 2003; and for the defendants, of the elder sister of the deceased, Ms Margaret Anne Hoskins of 4 June 2003; of the deceased's elder brother, Steven James Hoskins of 4 June 2003; and of the uncle of the deceased, his father's first cousin, Mr Edward William Foster of 3 and 10 June 2003.

17. In the primary affidavit for the plaintiff, that of 2 June 2003, she deposed in paragraph 1:

"I am the de facto wife of the late Sydney Edward Hoskins (deceased), who died at Moe on the 27th of April 2003.

23. In her affidavit she set forth the relationship between herself and the deceased. The deceased was born at Braidwood in New South Wales on 14 August 1972 and he died at Moe of ischaemic heart disease, according to the pathological report, on 27 April 2003.

26. The plaintiff deposed that she and the deceased lived in a de facto relationship from 1997 to 2002, and she bore him two children, Marlie and Archie, as I have stated. They lived in Moe.

29. The deceased had two previous children by persons other than the plaintiff: Sarah, born on 11 May 1993 and an elder daughter, now aged 15 years, who apparently lives in Wollongong and with whom the deceased had little continuing contact.

32. The relationship between the deceased and the plaintiff had its difficulties. According to Ms Dow, the deceased had an alcohol problem and on 5 July 2002, she sought an Intervention Order in relation to him and it was granted in the Magistrates' Court at Moe on 5 July 2002, for a period of 12 months. Thereupon the plaintiff and the deceased temporarily ceased residing together. The plaintiff and the children went to live in Warragul. The deceased used the plaintiff's address in Warragul for correspondence and domicile purposes (such as Centrelink). The plaintiff deposed that she and the deceased sought to remedy the problems within the relationship, largely extending from alcohol, and to that end she and he remained in contact and indeed, on 18 September 2002, she formally applied to the Moe Magistrates' Court for a revocation of the Intervention Order. The application stated:

"I am applying to the court to have the Order revoked. My reasons for wanting the Order changed are, the complainant and the defendant are trying to sort out their relationship out and the complainant feels that this Order is not necessary any more."

37. The matter was listed to be heard in the Moe Magistrates' Court a week later, on 25 September 2002, being thus some two and a half months after the granting of the Intervention Order. The plaintiff did not attend court on that day. Because neither party attended the Moe Magistrates' Court on 25 September 2002, the application for revocation was formally struck out by the Magistrate. The Intervention Order remained in effect to 4 July 2003.

40. However the plaintiff deposed that she and the deceased were working together to resolve the underlying causes of the difficulty in their relationship, which primarily was alcohol induced and that they proposed to work together towards that resolution so they could return together to live.

43. The deceased was also the subject of a Community-Based Order. A number of charges against him were heard at the Moe Magistrates' Court on 11 June 2002, being reckless conduct placing a person in danger of serious injury, damaging property, criminal damage by fire and two counts of failure to answer bail and he was placed on a six months Community-Based Order, commencing on 11 June 2002. As part of that disposition he was required to attend the Morwell Community Correctional Services office on 13 June 2002 and to perform 125 hours of unpaid community work over the period of six months. That by its terms ran until 10 January 2003. As a consequence of that Order the deceased, amongst other things, worked at a Christian camp located at Forest Edge, Noojee, some 20 kilometres from Warragul, a matter to which I shall return.

46. The plaintiff deposed that in September 2002 she sought the revocation of the Intervention Order because she and the deceased were seeking to resolve the underlying problems in their relationship in order that the relationship could result in them again living together. They agreed that the deceased would continue treatment with his drug and alcohol problems. In fact they continued to see each other through the currency of the Intervention Order, Ms Dow has deposed. She has also deposed that in November 2002 the deceased sent her a photograph taken on 22 September 2002 and which is exhibited before me. The photograph is of the deceased and the plaintiff with their two children, and an older child of the plaintiff, with a loving inscription on its back. It states:

"To the one I love, just for you. Look at Archie (cheeky) 'Ha' and I love you, Marlie Lip Hanger to like her Dad a son so she should be. Happy Birthday 'Hoo' Tamani hang five like Toddy. Well, son, I have this to say, all my love is for my family and all the care in the world is for Sonia, Marlie, Tamani, Archie. Well, baby, that's my family and you can take it away or keep it."

The plaintiff relies upon the loving expression thereon. The defendants rely upon the last part of that inscription, namely, "You can take it away or keep it" as an indication that the relationship was not a subsisting one. The plaintiff deposed that when that photograph was taken, she and the deceased had a serious discussion in relation to the custody of the children, the deceased was attempting to deal with his drug and drinking problem, he was attending the Percy Green Centre at Ardmona near Shepparton and that they agreed to continue their relationship.

51. The plaintiff's claim is significantly supported by the affidavit of Mrs Anne Kenney. Mrs Kenney deposed that she and her husband are practising Presbyterian Christians and that she first met the deceased when he was serving the Community-Based Order to which I have referred. She or her husband would drive the deceased to the camp, or pick him up, on Mondays and Fridays when he was attending Forest Edge. She deposed as follows:

"During this period we established a close friendship to Sydney Hoskins. Whenever he was in our company he would express his strong passion for his relationship with Sonia Dow that would work and especially for his children. During the period 3 September 2002 and approximately January 2003 it was the regular practice of Sydney Hoskins to meet with Sonia Dow and stay with her on weekends. They would spend their weekends together either at Sonia's place, our farm, or at Forest Edge. During the above period my husband and I considered that Sonia and Sydney were a couple. I considered their relationship during this period to be that of man and wife. In September 2002 my husband in my presence asked Syd whether he was married to Sonia and he replied, "I am properly married in blackfellow's way; she is my wife."'

The deponent said that she was aware that the Board of Forest Edge accepted the deceased's statement, but I put that matter aside as a matter of opinion and hearsay. The deponent concluded:

"Sydney Hoskins moved to Moe on 11 April 2003. He had contacted a housing organisation in Moe who contacted immediately with Syd's approval and stated his intention to obtain a house in Moe so that he could spend time with Sonia and the children as it would have been difficult to establish a home in Warrigal due to the difficulties caused by Sonia's family."

The plaintiff relies upon that affidavit strongly. The defendants point out that the expression in the last paragraph of the affidavit is "spend time with" rather than "live with".

58. The plaintiff finally swore an affidavit on 6 June 2003 in which she stated relative to her previous affidavit:

"Sydney Hoskins and I had planned to establish a home together at Moe. During the period that Syd was at Forest Edge Syd was to obtain a place of his own in Moe so that I could stay with him. He told me that he could obtain his driver's licence which he did, so that he could come and pick us up and take us to Moe, or for him to stay at my place. He planned to get his life back on track in obtaining employment, housing, a licence and dealing with his drug and alcohol problem."

62. As Exhibit SD5 to the first affidavit of the plaintiff is a report of a medical practitioner of St Vincent's Hospital, Fitzroy, dated 2 April 2003, directed to the Percy Green Centre, Ardmona. In relevant part it states having referred to the deponent's alcohol habits:

"He is concerned that with current social stresses his drinking will once again escalate. He is currently travelling back and forth from Wodonga to Dandenong where he is involved in a court case for access to his children."

66. As is often the case with applications issued and heard in the personally difficult situation of this case and in the Practice Court, the material has proceeded by way of affidavit with no opportunity for cross-examination or of detailed evidentiary development. It is not apparent from the material what was the status of the access court case if there were such a court case, but the defendants again rely upon that reference to demonstrate the dislocation between the plaintiff and the deceased at the period immediately prior to his unfortunate death.

69. Strictly speaking, the reference in the St Vincent's report to the access court case is hearsay. However, given the limitations upon adduction of evidence inevitable in cases such as this and to which I have referred, I consider I should have regard to that reference. Its particularity remains obscure.

72. The plaintiff deposed that the mother of the deceased is buried at Drouin (near Warragul) and that the deceased would visit her grave and the graves of other relatives there on his mother's side. She deposed that she wishes to bury the deceased at Drouin near his mother and for her and their children to attend and care for his grave. The deceased's father is buried at Wallaga Lake, near Bermagui, NSW, and the plaintiff deposed that for financial and other reasons she and the children would have difficulty in attending his grave if he were buried there.

75. It is plain that the plaintiff and the deceased were not physically residing in the same premises at the time of his death. However, that is by no means the end of the matter as to whether they were in the eyes of the law, living together; and of course, by no means the end of the matter as to the proper resolution of the summons and cross-summons in this case.

78. As I have said, a number of affidavits have been filed on behalf of the defendants and I now turn to them. The primary affidavit is that of the eldest sister of the deceased, Ms Margaret Anne Hoskins, sworn 4 June 2003. She deposed that her family is of Aboriginal descent, that the deceased was the third of six children, and that the defendants are the next of kin of the deceased. Ms Hoskins set out her role as the senior sibling and how she regularly saw the deceased over the period when he was in Victoria, being the last 10 years of his life. She deposed to the history of the family. The family unfortunately were themselves the subject of a parental separation and the mother moved to Korumburra, Gippsland when the children were very young, as her mother's family was originally from that area, and the siblings including Ms Hoskins and the deceased remained with their mother in Korumburra for a number of years. Her father would visit them each school holidays and periodically would take them back to Wallaga Lake which is the country of the family, to stay for school holidays. Wallaga Lake is just north of Bermagui, on the south coast of New South Wales.

81. Unfortunately in 1984, the mother died and then Ms Hoskins and Sydney for a period went walkabout together. In 1985 the siblings moved back to Wallaga Lake and lived with the father until he passed away in 1991. Sydney was about 19 years of age when that happened.

84. Ms Hoskins set out, in a moving passage, the relationship of Sydney with his father and how close it was and the sad circumstances of the father's death. The father became ill, as he had unfortunately himself had alcohol problems. An ambulance was called and the ambulance officers attended the father in the back of the ambulance while Sydney drove the ambulance to the Bega Hospital. The father died in the ambulance on the way to the hospital. That had a permanent and deep effect upon Sydney. Ms Hoskins deposed, "I believe that Sydney never got over our father's death".

87. Ms Hoskins further deposed as to the importance of the country of the family, that is Wallaga Lake, in their lives and the significance of it in particular to Sydney. She deposed:

"I cannot speak about women's business or men's business which are part of our customs. But I can say this: if a son dies and he has a strong connection with his late father and the land of his late father, then the son should be buried with his late father".

I accept Ms Hoskins' affidavit that Sydney had a strong connection with his late father and I accept the evidence of Ms Hoskins and also the two affidavits of Mr Edward Foster, the uncle of the deceased, that that was and is a powerful cultural imperative in relation to the resting place of the deceased, a son with a strong connection with his father. Like matters are also set out in the affidavit of Stephen Hoskins which was sworn on 4 June 2003.

92. Ms Hoskins deposed that although the deceased left the Wallaga Lake area after the death of his father, he returned there twice yearly for men's business. The defendant deponents also swore that the deceased wished to be buried at Wallaga Lake, although as I will come to, the law is that the wishes of the deceased are not the determining factor. However cold that may sound, that is the law applicable to this and every other case.

95. So far as there is some actual disputation as to the relationship between the deceased and the plaintiff between on the one hand Ms Dow and on the other hand Ms Hoskins, I accept the evidence of Ms Dow as to the relationship. It is based upon direct knowledge and is independently and in vital respects confirmed by Mrs Kenney and I consider that in all the circumstances the evidence of Ms Dow on the relationship is to be accepted. However I accept entirely the evidence of Ms Hoskins as to the earlier history of the deceased and of his relationship with his father and his country and the evidence of Ms Hoskins and Mr Foster as to the significance in Aboriginal custom and culture of the resting place of the son with the father.

98. In essence, Mr Kistler for the plaintiff has submitted the deceased moved to Victoria 10 years ago; that there was an on-going relationship between the deceased and the plaintiff for five years; that the deceased and the plaintiff had two children; that there were difficulties in the relationship deriving from the deceased's alcohol consumption, and that the deceased and the plaintiff were working through those difficulties in a responsible way in order that they could achieve their joint aim of continuing their lives together. Mr Kistler relied upon that significant period of the five years together, and of the circumstances which explain the geographical disconnection between the two that I have recited.

101. Ms Fenton for the defendants relied upon a number of matters in the factual matrix: that there was a significant dislocation in the relationship with the issuance of the Intervention Order and the physical separation of the plaintiff from the deceased; that even if, as was disputed by the defendants, there was some rapprochement between the deceased and the plaintiff late in 2002, it was apparent that there was another significant break in the first quarter of 2003 when the plaintiff and the deceased were living in different parts of Victoria; and the deceased died alone in Moe and at that time there had been no resumption of the relationship. Ms Fenton submitted that, as well as the physical separation, the existence of the Intervention Order and of the access proceedings (to the extent that the latter is established) are incompatible with a state of "living together" as contemplated by law. I was particularly assisted by Ms Fenton's submissions which I found most comprehensive and thoughtful.

104. The deceased died intestate. He had no substantial assets. He and the plaintiff were not married. The first question is: at the time of the deceased's death was the plaintiff the deceased's domestic partner, formerly referred to as de facto?

107. The Statute Law Amendment (Relationships) Act 2001, as relevantly applicable to these proceedings, came into operation on 8 November 2001. It amended s 3(1) Administration and Probate Act 1958 to define 'domestic partner' as follows:

"Domestic partner of a person who dies means a person who, although not married to the person:

(a) was living with the person at the time of the person's death as a couple on a genuine domestic basis, irrespective of gender; and

(b) either:

(i) had lived with the person in that matter continuously for a period of at least two years immediately before the person's death; or

(ii) is the parent of a child of the person who was under the age of 18 years at the time of the person's death."

Section 51, as amended by the Statute Law Amendment (Relationships) Act 2001, sets forth provisions as to the distribution if an intestate leaves a partner. The Property Law Act 1958 s.275(2) has likewise been amended and sets out relevant criteria as to 'domestic partner'. As the plaintiff is the parent of a child of the deceased - in fact of two children, Marlie and Archie - she satisfies the criterion specified in s.3(1)(b)(ii) Administration and Probate Act 1958. This first question thus devolves itself into the criterion of s.3(1)(a), was she living with the deceased at the time of the deceased's death?

114. In my view the determination of whether the plaintiff was living with the deceased, as contemplated by the law as I have recited in its statutory form, should not be construed on narrow, formal, pedantic or merely geographical criteria but should be considered taking into account the human reality of the personal, emotional and cultural complex. I approach the matter in that broader context. I have considered a number of domestic partner cases: Hibbertson v. George[1], Brown v Tullock[2], Calma v Sesar & Ors[3], Burnes v. Richards[4], Boothman, ex parte Trigg[5], Jones v. Dodd[6] and Sullivan v. Public Trustee for N.T.[7] Such cases are necessarily determined on their facts. The subsisting principle which emerges from them is that the determining factors are the length and circumstances of the relationship in each case.

117. In Hibbertson v. George[8] Mahoney J, who on this point was agreed in by the other justices, stated:

"Where one partner determines not to live together with the other and in that sense keeps apart, the de facto relationship ceases even if the separation is merely to enable one party or the other to decide whether the relationship should continue."

The present case differs from Hibbertson v. George. In that case having separated, the parties were to decide whether the relationship should continue. In this case, I find that the parties had decided the relationship would continue and were working to that end.

122. On the evidence before me, I find that there was a continuance of a subsisting relationship between Ms Dow and the deceased at the time of the death of the deceased. I find that the plaintiff was the domestic partner of the deceased at the time of his death, despite the geographical circumstance of their separation and despite the curial proceedings (notably the Intervention Order) between them. That is because I accept the evidence of the plaintiff that there was a continuing intention of the parties to resolve their differences and live together. She was acting responsibly, as was the deceased acting responsibly, in seeking to address his alcohol induced problems. They had two children to whom they were each devoted, and the separation was designed, not to determine whether they should live together, but to fulfil their continuing intention to live together. I also take into account the human reality of the situation between them and the difficulties culturally and emotionally that they were undergoing and I consider that a narrow and pedantic view of living together ought not be applied in the circumstances.

125. For that reason I conclude, on the first matter, that the plaintiff was the domestic partner of the deceased at the time of his death.

128. In any event, and bearing in mind the prudential observation of Waddell C.J. in Eq. in Brown v Tullock[9] that no one "can presume conclusively that a particular person will be granted administration" before a grant is made, I consider it is highly probable that the plaintiff would be appointed administrator if sought. She had a subsisting relationship with him, was the mother of his two youngest children, and according to Mrs Kenney, the deceased said he was "properly married in blackfellow's way; she is my wife".

131. That, of course, is not the end of the matter. The authorities in intestacy cases establish that that is one matter of primary importance but is not necessarily of conclusive importance.

134. The other matter of primary importance is the cultural significance as deposed by Ms Hoskins and Mr Foster, of the country of the deceased, being Wallaga Lake, and of the important consideration that in the relevant Aboriginal culture that is the place where the deceased should find his final rest, beside his father to whom he was devoted.

137. The plaintiff, in that regard, relies upon a decision of Ashley J in Meier v. Bell of 3 March 1997. In that case, as is evident from the penultimate paragraph of the judgment, His Honour ultimately rested his decision upon the acceptance of the second submission of that plaintiff, namely that she was the custodial parent of the child of the deceased. His Honour regarded that as a conclusive matter. At that time the 2001 statutory amendment with the cumulative criterion that I have stated was not in operation. His Honour, however, concluded his judgment with this observation: (pages 11-12).

"In the event, I should direct that the plaintiff bears the responsibility for the disposing of the body of the deceased and to that end for making funeral and burial arrangements in her sole discretion. In so resolving the matter I emphasise that its resolution involves no rejection of the aboriginal cultural values asserted and relied upon by the defendant. The existence, or otherwise, of those values, as would be the case with any other religious or cultural considerations, has simply been beside the point."

141. Ashley J. earlier had reviewed relevant authority and concluded (p.7):

"In the context of persons who have died intestate, the approach has been to identify as best as is possible the person who is a potential administrator, and to treat that person in the same way as if he or she had been appointed executor; that is, so that the decision of that person as to place of burial prevails".

His Honour emphasised that in applications such as the present, where there is limited capacity to investigate the competing claims (often held with much emotion and comprehending substantial periods of time), it is better to adopt a practical test for resolution of such issues. The value of a general criterion as stated by Ashley J. was emphasised by Pullin J. in Burrows v Cramley[10].

"There cannot be departure from principle in order to accommodate particular factual disputation, whether it be founded on matters religious, cultural, or of some other description."

Martin J. in Calma v Sesar & Ors[11] likewise held that a practical and legal solution to such claims must be found and said "That solution will not embrace the resolution of possibly competing spiritual or cultural values".

151. Ashley J's analysis in Meier v Bell cited in the preceding paragraph was the subject of consideration in Jones v. Dodd.[12] In that case Perry J. (with whom Millhouse and Nyland JJ. agreed) said that in intestacy cases where because of the lack of assets of the deceased it is in fact unlikely that there would ever be an application for a grant of administration (p.336)

"... the proper approach 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 question".

Perry J. also said that in intestacy cases where because of the lack of assets of the deceased it is unlikely that there would ever be an application for a grant of administration, the administrator test "takes on an air of unreality" (p.336).

156. I do not consider that the test in such cases takes on an air of unreality. I consider that, for the reasons stated by Ashley J. in Meier v Bell, the test is a sensible, practical prima facie test. However the true view, I consider, is that it is only a prima facie test. With every respect, I cannot agree with Ashley J. that cultural matters ought be disregarded. In that respect I agree with Perry, J.. I consider that the administrator test is the proper prima facie test but not to the necessary exclusion of cultural or other factors where such factors substantially arise on the evidence before the Court.

159. In Sullivan v. Public Trustee for Northern Territory[13] Gallop A.J. reviewed the considerations applicable and emphasised the significance of cultural matters in a case in which there was, of course, the Public Trustee acting, as the name of the case indicates.

162. Over the weekend I had the opportunity of considering some extra judicial statements, in particular "Rights to Mortuary Rites" by Dr John Avery,[14] "Wills as Shields and Spears" by Ms Prue Vines,[15] and "Resting in Peace" by Ms Prue Vines.[16] The latter article is primarily in relation to burial sites and archaeological considerations and the wills article was, as the name would indicate, primarily in relation to wills, but I found those articles of general background assistance as to the importance of aboriginal custom. In particular, I agree with Ms Vines who at the commencement of the wills article in its extract states:

"The majority of Aboriginal people in Australia die intestate - that is without leaving a valid will. All Australian jurisdictions have legislation which determines who will take a benefit if there is no will (intestacy legislation). However, the statutory regimes for intestacy are all based on a non-Aboriginal view of family and kinship. This creates a serious mismatch between the legislative scheme and Aboriginal cultural expectations."

I approach the common law authorities with those considerations in mind.

167. The relevant common law principles, helpfully summarised by Young, J. in Smith v. Tamworth City Council[17] are: there is no property in a dead body; if a person is named an executor that person has the right of burial; a person does not have the right to dictate what will happen to his or her body; a person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so; where no executor is named, the person with the highest right to take out administration will have the same privilege as an executor; the right of the surviving domestic partner will be preferred to the right of children; and where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

170. Having reviewed relevant authority, I consider that priority ought be given to the situation of the plaintiff, Ms Dow. She is the mother of the two younger children of the deceased and she and the deceased were seeking to secure their future as a family. I have given close and continuing consideration to the significant cultural matters deposed to by Ms Hoskins and Mr Foster. Having reviewed the relevant authorities, I consider that given the fact that the mother of the two children is the plaintiff, in the circumstances I have reviewed, she ought be granted the relief she seeks.

173. Accordingly, I propose to grant the directions and orders sought by Ms Dow on the motion and summons and to dismiss the orders sought by Ms Hoskins on her summons.

[1] (1989) 12 Fam.L.R. 725.

[3] [1992] NTSC 17; (1992) 106 FLR 446.

[5] Owen, J. S.C.W.A. (27 January 1999).

[6] [1999] SASC 125; (1999) 73 SASR 328.

[7] Gallop A.J. N.T.S.C. 107 of 2002 (24 July, 2002). See generally, Carolyn Spark "When is a spouse not a spouse?" (February 2002, Law Institute Journal 61) and A. Dickey, "Defacto relationships and cohabitation." ((2000) 74 Australian Law Journal 360).

[8] (1989) 12 Fam.L.R. 725 at 740.

[10] (2002) WASC 47.

[11] [1992] NTSC 17; (1992) 106 FLR 446 at 452.

[12] [1999] SASC 125; (1999) 73 SASR 328.

[13] Gallop, A.J. N.T.S.C. 107 of 2002 (24 July, 2002).

[14] January 2002 Indigenous Law Bulletin 15.

[15] November 2001 Indigenous Law Bulletin 16.

[16] [1998] SydLawRw 3; (1998) 20 Sydney Law Review 78.

[17] (1997) 41 NSW LR 680 at 693 - 694.