Frail v Shorey & Anor

Background Facts

1. The Plaintiff was born on 12 November 1986. She is a woman from the Ngemba tribe from the Brewarrina area of New South Wales.
2. The Defendant, although not indigenous by birth, was raised in Dubbo and Brewarrina by indigenous families and is accepted in the community as indigenous. He was born on 4 April 1977.
3. Although they had known each other for many years the Plaintiff and Defendant did not become a couple until about 2011. They lived together until about 2016 when they separated.
4. Their son Shane was born on 8 January 2013 and their son Sheldon was born on 12 February 2014. Both boys were born in Dubbo.
5. The Defendant has two other children with two different women, Mark born on 20 November 2011, and Shanice born on 2 March 2000.
6. The couple lived in Mudgee and Wellington. The Plaintiff still lives in Wellington but the Defendant has since about 2017 lived with his new partner in Emerald in Queensland.
7. Since the couple separated in 2016 the Plaintiff has had periods of incarceration for offences of dishonesty connected with her drug use. When the Plaintiff was in gaol the children lived with the Plaintiff's mother and stepfather who also reside in Wellington.
8. The Defendant in the period from about 2016 to early 2020 would visit Wellington every 6 to 10 weeks and have access to the boys from a Friday night until the Sunday afternoon. He would either return them to their mother if she was not incarcerated or to the Plaintiff's mother and stepfather.
9. During these years the children went to school in Wellington.
10. For the calendar year 2020 the boys lived with the Defendant and his partner and son Mark, in Emerald, Queensland and went to school there.
11. The Defendant accepts that the children came to live with him in Queensland when he took them back there with him following a visit with them in Dubbo on 17 January 2020. He also accepts he did not tell the Plaintiff's mother or stepfather that he was taking them but he asserts he did tell the Plaintiff who it seems was incarcerated at the time.
12. The Plaintiff's mother and her partner filed a Recovery Application (as the maternal grandparents) in the Federal Circuit Court on 25 February 2020. The application sought orders that the children live with them. The application was opposed by the Defendant who filed a response on 31 March 2020.
13. No Recovery orders were made but the matter appears to have been compromised by orders made before Judge Boyle in Sydney on 22 June 2020, with the children spending time with the applicants during school holidays and contact at other times via video calls. The first respondent to the application (the Plaintiff) was to get access to the children when in the care of the Applicants.
14. Further orders were again made by Judge Boyle on 18 December 2020 providing that the children be with the Applicants between 30 December and 17 January 2021. If they were to be with the Plaintiff the Applicants were to be present "at all times". The matter was to be brought back to the Court on 16 March 2021. An expert was appointed to report to the Court on the effect of the children being separated from their maternal grandparents and being "taken off country" and the effect on the children if they were separated from the father and returned to live with the maternal grandparents. A further issue was the capacity of the parties to provide for the needs of the children both emotionally and intellectually.
15. It was proposed that the expert psychologist was to conduct interviews with the various persons concerned in the first week of January 2021. One of the days when such an activity was to take place was 5 January 2021. There is no evidence one way or the other as to what had indeed occurred in that regard.

Legal Principles

1. Disputes concerning burial rights of a deceased fall within the inherent jurisdiction of this Court (Darcy v Duckett [2016] NSWSC 1756 ('Darcy') at [5(1)], Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701).
2. The starting point of such a dispute is to note that there is no property in human remains (Smith v Tamworth City Council (1997) 41 NSWLR 680 ('Smith') at 690), but if the deceased has left a will, the executor has the right to arrange the burial (Smith at 691). If the individual dies intestate, the administrator is in the same position.
3. Recently, in Milson v Milson [2020] NSWSC 919 I observed at [20] that: Section 63 of the Probate and Administration Act 1898 (NSW) identifies the persons to whom the court may grant administration of a deceased's estate. They include the spouse of the deceased and/or the next of kin. As I also pointed out in White v Williams the Succession Act 2006 (NSW) then guides who will be considered next of kin and given priority with respect to the grant of administration. Relevantly, priority is usually given to the surviving spouse (Pt. 4.2, Div. 1 & 3), then any surviving children of the deceased (s.127) and then the parent of the deceased (s.128).
4. Each of the parents has parental responsibility for the children (Family Law Act 1975 (Cth) s 61C). At common law, parents have equal ranking for taking carriage of the burial of their deceased children (Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 at [53], Nayacakalou v Vincent [2020] NSWSC 24 at [42]). Where two or more persons are equally ranked, the practicalities of burial without unreasonable delay must be considered by the Court (Smith at 694), as must the disposal of the bodies 'with all proper respect and decency' (Joseph v Dunn [2007] WASC 238 at [21], quoted in AB v CD [2007] NSWSC 1474 at [41]).
5. There are a number of factors which may be taken into consideration to assist in the resolution of such a dispute. They include who might be entitled to take out letters of administration, any Aboriginal cultural considerations, the deceased's wishes, and the wishes of any living relatives (State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64 at [47], [55], [61] and [65]). The deceased children were Indigenous which gives rise to special and important considerations (White v Williams (2019) 99 NSWLR 539; [2019] NSWSC 437 ('White v Williams' at [18]). Further, in In the Estate of Jones (deceased); Dodd v Jones [1999] SASC 458, it was noted by Doyle CJ at [29] that 'genuinely held beliefs about Aboriginal custom and law…should be respected as far as possible'.
6. As I observed in White v Williams at [22], the proper approach to such a case involves, rather than a rigid application of the principles from Smith, a balancing of common law principles and practical considerations. Ultimately, the Court must come to a decision based on 'all the relevant factors, including any cultural and spiritual matters, and the specific factual circumstances of the case: Darcy v Duckett at [27]' (White v Williams at [27]).

The Evidence

1. The evidence of the Plaintiff consisted of herself, her solicitor, family and friends. The evidence of the Defendant consisted of himself and two elders. I will briefly deal with each. I should observe that there was no cross examination of any witness.
2. Although the failure to cross examine was explained on the basis of authority (T.8/41), I do not accept that that should in these cases be regarded as an inviolate rule. In Keller v Keller (2007) 15 VR 667 at [9], Hargrave J commented that in matters concerning burial rights, the Court ought not "embark upon a lengthy adversarial hearing" which would delay the decision for an unacceptable period of time while the body remained undisposed of. Justice Hargrave expressed the view that "accordingly, cross-examination will usually be inappropriate". In Darcy at [9], Campbell J, in my view, took this notion too far by asserting that the authorities suggest that these types of hearings should proceed on the basis of affidavit evidence only without any cross examination. In my opinion, Hargrave J was speaking to the brevity of such hearings and the importance of speed in coming to a decision, rather than establishing a rule as to cross-examination. The proceedings, like almost all others in the Court, are adversarial and as such in the appropriate case and subject, always to the forensic judgment of the practitioner concerned, ought to be conducted on that basis. In some cases the failure to cross examine can and arguably should have the usual consequences.
3. The Plaintiff affirmed two affidavits. The first on 29 January and the second on 9 February 2021.
4. In her first affidavit the Plaintiff stated that she is a proud woman of the Ngemba tribe from the Brewarrina area of New South Wales, [3]. The two deceased children are her only biological children, [5] and she confirmed that the Defendant is their biological father, [6]. The Defendant has another biological son who was born in 2011, with another woman. The Plaintiff stated she regarded him also as her son, [8].
5. She acknowledged she had a long history of drug use and continues, notwithstanding she is on a methadone program, to use other drugs, [10]-[13].
6. Although she and the Defendant had known each other for perhaps years they only became a couple in 2011. Their two children were born in 2013 and 2014 respectively, [14]-[19].
7. At some point in their relationship the Defendant was working away from home a great deal in Cobar and Queensland. The couple separated in 2016, [20]-[21].
8. She stated that in January 2020 the Defendant "took" the two children from her parents with who they were staying at the time and as a result her parents commenced proceedings for a Recovery order in the Federal Circuit Court, [23]-[24]. Those proceedings were commenced on 25 February 2020, CB.107.
9. At the time the Defendant took the children the Plaintiff was an inmate at Wellington Correctional Centre. She was released on 25 July 2020, [27].
10. She stated that her son Sheldon attended at Nanima Village pre-school in Wellington an Aboriginal run organisation. Both children attended Aboriginal cultural events held by the Aboriginal community in Wellington, [28]-[30].
11. She had taken them back to Brewarrina to show them where their grandparents were born and lived. Both boys were taken by their grandfather Steven Button to the Common at Nanima Mission where they were taught about secret men's business, [31]-[33].
12. The Plaintiff then described the accident of 5 January 2021 and the injuries she received as a result which required her hospitalisation, [34]-[43].
13. She plans to be buried in Wellington along with her parents and grandmother. She would like her sons buried with her, [49].
14. She stated that it is tradition for Aboriginal people to be buried at a final resting place so that people could visit the grave and continue to look after loved ones. Burials, she explained, allow the spirits to enter mother earth and ensure that they will be on country, [50]-[51].
15. She wanted the children to be buried in Wellington as their final resting place. Wellington is significant as the children have lived there most of their lives, attended school there and played sports there, [52]-[56]. She believed the boys should have a final resting place so their spirits can enter the dreamtime, [58]-[59].
16. She also stated that cremation was not common in Aboriginal communities and in her family. Cremation would also separate the boys, and burial would allow persons to visit their graves.
17. In her second affidavit she stated she would like the Defendant to be involved in organising the service, [5]. She then set out the detail of the burial she had in mind, [7]-[19]. She would like the funeral service to be conducted by Pastor Tommy Sloane, a local Aboriginal pastor, [19]. She understood that the costs of the funeral would be covered by GIO General Limited, [28].
18. The Plaintiff's mother, Ms Denise Frail, affirmed one affidavit of 29 January 2021.
19. She is a proud Ngemba woman from the Brewarrina and Bourke areas, [3].
20. She has been in a relationship with Steven Button for approximately twenty three years, [6]. She has lived at her current address for over twenty years. The property is owned by the Wellington Aboriginal Housing Co-Op, [7].
21. The two children were her only grandchildren, [10]. The eldest, Shane, was born in Dubbo Base Hospital. Both she and Steven were present at the hospital for the birth, [17]. From the time Shane was a few months old he would stay with her and Mr Button, [18].
22. The Plaintiff moved to Mudgee around early 2014, Ms Frail regularly drove from Dubbo to Mudgee to visit the Plaintiff and her grandsons. She would often take the children back to Wellington to give the Plaintiff a break, [20] and [23].
23. After the Plaintiff and Defendant separated, the Plaintiff and the children came back to Wellington to live with her mother and stayed for about six months. During this time the Defendant did not see the children but would call them, [29].
24. The Plaintiff then secured and moved into her own house which was around the corner from her mother, [30].
25. Ms Frail applied for and was given a declaration confirming both children were of Aboriginal descent, [33]-[34].
26. The children were living full time with her and Mr Button for the period June 2017 till mid-2018 as the Plaintiff was incarcerated. The Plaintiff was again incarcerated from about July 2019 to July 2020 and until she was released in July 2020 the children were with Ms Frail and Steven until January 2020 when their father took them to Queensland, [38].
27. The Defendant did visit the children from after he separated from the Plaintiff in 2016, but not regularly, [40]-[47]. Ms Frail and Mr Button cared for the children otherwise and in particular enrolled the boys into pre-school and school in Wellington, [48].
28. She described the events of Christmas 2019/January 2020, when the Defendant said he wanted to come and visit the children. The arrangement was that the Defendant would be in Dubbo for 2 to 3 nights and would have the boys with him and then return them, [59]. He sent a text saying he would collect them on January 17, 2020.
29. When the Defendant came to pick the boys up, one of them Shane, began crying saying he did not want to go, [63]. The next day the Plaintiff called her mother from gaol telling her that the Defendant had told her he was taking the boys to Queensland so they could live with him, [65].
30. The grandmother rang the Defendant who confirmed he was taking the boys back to Queensland. Mr Button called the police. In February 2020, Ms Frail commenced proceedings in the Federal Circuit Court and orders were made on 22 June 2020 providing for access. Further orders were made on 18 December 2020 providing that the children spend time with their grandmother and Mr Button from 30 December 2020 to 17 January 2021, [72]-[73].
31. Ms Frail's application to the Court was that the children live with her and Mr Button, [81]-[87].
32. She would wish the children to be buried in Wellington as Aboriginal people do not believe in cremation, [88]. She, her mother and the Plaintiff all plan to be buried in Wellington, [90]-[92].
33. She also stated that it is not customary for Aboriginal people to be cremated, [97].
34. Mr Steven Button affirmed one affidavit on 29 January 2021. He is a proud Wiradjuri man and is also part of the Stolen Generation spending time in a non-Aboriginal household when he was young, [2].
35. He has lived with Ms Frail for approximately twenty three years, [3]. He was born in Wellington and he regards the Plaintiff as his daughter, [3]. Most of his family live in Wellington and his parents are buried there.
36. He stated that the children have lived with him and Ms Frail whenever the Plaintiff was incarcerated. The Defendant in that time would see the children for short and infrequent periods, [9]-[10]. Mr Button would take them to school and sporting events, [12]-[13].
37. He explained that contrary to an understanding he had with the Defendant, the Defendant took the children to live with him in Queensland in January 2020, [18]-[22].
38. He is very involved with the local Aboriginal community in Wellington, [3]-[34].
39. He stated that Aboriginal culture required an Aboriginal person to be buried in their hometown, [35]. He does not want the boys to be cremated but buried, [36]-[37]. Burial allows Aboriginal people to enter the afterlife so ancestors can continue to care for people after death, [42]. If cremated the spirit and soul will not rest and will be lost forever, [45].
40. Ms Glenda Bell affirmed two affidavits of 29 January and 9 February 2021.
41. She considers the Plaintiff, her mother and Mr Button as family, [3]-[7].
42. She is from the Wellington community as were her parents, [8].
43. She described an area just outside Wellington called the Common where Aboriginal people lived, near an area called Nanima Village. It was where elders enforced traditions and lore.
44. She has passed down to school students in the Wellington area the culture, language and traditions she herself has learnt. She referred to the "Wellington clan" of the Wiradjuri nation, [14].
45. By reason of her friendship with Mr Button she has attended birthdays, Christmas and other milestones with the children who were considered part of the Aboriginal community in Wellington, [18].
46. She is recognised as an Elder and an Aunt within the Wiradjuri nation comprising the Aboriginal people living in the Wellington community, [24]-[25]. She gives cultural advice on burials and family connection for Aboriginal people in Wellington, [26]. She is also a board member of the Wellington Aboriginal Corporation Health Service. She has also been the head of the Aboriginal Early Childhood Unit for the care of young children and she has worked as a teacher in many schools in New South Wales, [30].
47. She stated that it is a tradition amongst Aboriginal people within the Wiradjuri nation that "our" people are buried and they do not believe in cremation otherwise the spirits do not enter the afterlife and have a final resting place, [41]-[42]. It was also customary for members of the same family to be buried at the same location, [45]. She believed that as part of the Aboriginal community in Wellington tradition would require that the boys be buried in Wellington. Further, she stated that cremation was not customary within the Aboriginal community, [53]. It was not considered respectful as putting ashes in a vase and then transporting them would not allow the body and spirits to rest after death, [54] and [56].
48. In her second affidavit she stated that she has never attended a funeral service where the body has been cremated and the preferred option for the people in her community is to be buried and not cremated, [7]. She does accept that traditions vary from community to community, but every funeral she has attended in Wellington in the last year has been a burial, [9] and [11].
49. Mr Murray Carr affirmed two affidavits. The first on 1 February and the second on 9 February 2021.
50. He is from the local Wellington community and he grew up in the Nanima village, [3]-[4].
51. He knows the family and had met the boys who he says were considered part of the Aboriginal community in Wellington, [8]. The children called him Uncle Murray, [16].
52. He is an Uncle and an Elder in the Aboriginal community in Wellington. He has learnt his traditions from his family and passes them onto the younger generation, [22].
53. He stated that in his culture and in his community burials are the tradition, [28]. He has a lot of family buried in Wellington and as the boys were born in Dubbo on Wiradjuri country they should be buried on the country they call home, namely Wellington, [34].
54. He also stated that cremation is not considered to be respectful and it is culturally inappropriate to cremate the body after death, [42]. Cremation would in his opinion have a long-term effect on the family and community both mentally and spiritually, [46].
55. In his second affidavit he stated that his two sisters, two brothers and father are all buried in Wellington, [4]. He has not known any Aboriginal people in his community to be cremated. Burials are the preferred option, [6]-[8].
56. The solicitor, Mr Goudkamp affirmed three affidavits, dated 28 January, 8 February, and 10 February 2021.
57. These contain matters of a largely formal nature but importantly including confirmation the GIO will pay all reasonable expenses associated with a funeral (CB.137). In addition the GIO has indicated that it will also pay travel expenses regardless of where the funeral is held for the Defendant and his current partner, daughter, son and his partner's daughter, (CB.164-165). GIO has also indicated it would cover the funeral costs referred to at CB.168.
58. The Defendant affirmed one affidavit of 3 February 2021.
59. He was raised in Dubbo and Brewarrina by indigenous families, [6]. He stated he has been accepted as indigenous and was raised partly by the Boney family who are Murrawarri and Wiradjuri people from Dubbo, Coonamble and Brewarrina, [7].
60. He confirmed he commenced living with the Plaintiff in 2011. He also had his daughter in his care at that time.
61. He set out his understanding of her drug usage and periods of incarceration for as he puts it "dishonesty charges", [10]-[12].
62. He accepted that he and the Plaintiff separated in 2016 and that he would see the boys regularly, [16]. He moved away from the area and saw the boys every 6 weeks although on one occasion he did not see them for 10 weeks, [18].
63. He met his current partner in 2017, obtained employment in Queensland in the mines at Emerald and has bought a house there, [20].
64. He also accepted that when he visited the boys in January 2020 he took them back to Emerald with him without telling the maternal grandparents although he insisted he told the Plaintiff, [21].
65. He referred to the hearings in the Federal Circuit Court and stated that no Recovery order has ever been issued but he accepted that one was sought, [22]-[26].
66. He also stated that the boys spent twelve months with him in Emerald in 2020. He stated they attended the Denison State Primary school and he referred to their school activities and health issues, [27]-[29].
67. He described the events of the accident partly as relayed to him by his biological son Mark who was with the Plaintiff at the time and who was also injured in the accident, [32].
68. He stated that his son Mark has told him that he never wants to return to Wellington although the Defendant believes that he should attend his brothers' funeral, [39].
69. He proposed a service jointly arranged by himself and the Plaintiff followed by the boys being cremated. The ashes should then be divided between himself and the Plaintiff, [40].
70. Although he accepted he is not indigenous he was raised in the Aboriginal culture and has understood that the funeral of an indigenous person can either be by burial or cremation, [42].
71. He has he stated attended many funerals for indigenous people and not one has had a smoking ceremony. He has also heard that pre-colonisation cremations occurred. He listed a number of indigenous funerals where cremations had occurred, [42]-[44].
72. He accepted that the boys were accepted in the community in Wellington but were also accepted into the community in Emerald and Dubbo, [46].
73. The Defendant relied upon the affidavit of Ms Lynette Boney who gave her address as Barwon Mission. She is a Murrawarri woman and an elder, [1]-[3].
74. She stated that the Defendant is her brother and accepted as indigenous, [2].
75. She stated that there is no cultural reason why an Aboriginal person could not be cremated as it is a matter entirely for the family, [4] and [6].
76. The smoking ceremony rarely occurs at funerals and in Brewarrina where she lives there is a cremation wall with plaques on it.
77. Mr Anthony Boney also provided an affidavit for the Defendant dated 4 February 2021. He says he is an elder of the Wirradjuri people, [2].
78. He has also been a member of the Aboriginal Land Council for the last 30 years, [3].
79. He stated he is not aware of any reason why an indigenous person should not be cremated and burial or cremation is entirely a matter for the family, [5]. He also said that his niece was cremated before Christmas and that cremation was becoming more popular due to cost factors, [7]-[8].
80. He had known the Defendant since he was 17 years of age and he was aware that the Defendant has been accepted into the Aboriginal community, [10].

The Plaintiff's Submissions

1. The Plaintiff submitted that there was an abundance of irrelevant material provided to the Court regarding her personal struggles throughout her life and what purportedly occurred on the day of the accident. She submitted that these matters do not bear on the ranking the Plaintiff and First Defendant have in arranging the burial of their sons.
2. The Plaintiff submitted that both she and the First Defendant had an entitlement to lodge claims under the Motor Accident Injuries Act 2017 (NSW) for funeral expenses and personal injury, both physical and psychological. Further, the cost of any burial arrangements made by the Plaintiff, including the travel costs of family members of the First Defendant would largely, if not entirely, be funded by the relevant Compulsory Third-Party Insurer, GIO General Ltd, which obviates any financial practicable difficulties which may otherwise arise.
3. The Plaintiff submitted it cannot be said, in circumstances where the First Defendant had otherwise proposed to hold a service in Dubbo, that the need for the First Defendant and his family to travel to Wellington was a practical consideration weighing against the Plaintiff's claim. Additionally, the Plaintiff noted it was relevant that the First Defendant often travelled from Emerald to Wellington to visit Shane and Sheldon.
4. While the First Defendant's son, Mark, indicated he would not return to Wellington, the Plaintiff submitted this was one of the matters the Court was encouraged to give weight to, and was the type of reactionary statement one might expect of a child rather than an absolute statement of their true intentions.
5. The Plaintiff submitted that of particular relevance to this case were the considerations flowing from the deceased children identifying as Aboriginal, in particular as part of the Wellington Aboriginal community, and beliefs of the Plaintiff, who is also part of that community. She submitted that, as per Dodd at [29], these beliefs 'should be respected as far as possible'.
6. The Plaintiff submitted that Mr Murray Carr, Ms Glenda Jones, Mr Steven Allan Button and Ms Denise Ann Frail, all of whom gave evidence about the Aboriginal community of Wellington, spoke with one voice stating that it is the tradition in their community that their people are buried. The Plaintiff submitted that their evidence about the importance of burial should be accepted and respected where possible.
7. The Plaintiff submitted that in contrast, affidavits from Ms Lynette Boney and Mr Anthony Boney which claimed that there was no cultural reason why a person could not be cremated could not speak to the beliefs of the Aboriginal community of Wellington specifically, because while Ms Boney is a Murrawarri woman and Mr Boney is an elder of the Wiradjuri people, neither are affiliated with the Aboriginal community of Wellington.
8. It was also submitted that Shane and Sheldon had a strong connection with the Aboriginal community in Wellington and their unique body of beliefs. Both were recognised as being of Aboriginal descent, receiving that confirmation in Wellington. This was said to be an important process which reinforced the boys' connection with the Wellington Aboriginal community and culture.
9. In addition to this formal recognition of the boys' membership of the Wellington Aboriginal community, the Plaintiff submitted that Shane and Sheldon were also educated in that belief system, and were active and engaged in the community. Thus, while neither ever expressed how they wished their bodies to be disposed of, given their membership of the Wellington Aboriginal community, the Plaintiff stated it was reasonable to suppose these beliefs would have informed their intention.
10. The Plaintiff argued that while Shane and Sheldon had some association with the community in Emerald, including indigenous families, without intending to diminish those connections, it could not be said that over the 12 months they resided in Emerald, the bonds the boys formed paralleled those they had in Wellington. In contrast, Shane and Sheldon enjoyed a quasi-parental relationship with Ms Frail and Mr Button, who were their prolonged carers in Wellington where they also attended school, played sports and developed friendships, strengthening their connection with the town.
11. The Plaintiff submitted that cremation would result in there being no place for herself, Ms Frail, Mr Button or other members of the Wellington Aboriginal community to gather to mourn Shane and Sheldon or, given their beliefs, maintain a connection with them. The Plaintiff stressed the cultural significance and ongoing problems associated with a lack of burial site.

The First Defendant's Submissions

1. The First Defendant submitted that the practicalities of the matter favoured his application for a number of reasons.
2. Firstly, he submitted that he sought to hold a funeral service in Dubbo where Shane and Sheldon were born and which was on country for them, the Plaintiff and the First Defendant.
3. Secondly, the First Defendant believed it was important his son Mark attended the boys' funeral; however, Mark had indicated he did not wish to return to Wellington where the accident occurred. The First Defendant submitted this was a very important factor for holding the funeral service elsewhere to Wellington. The First Defendant stressed that the Plaintiff identified that Mark was treated by her as a son and was therefore a significant person in both parties' lives and in the lives of the deceased. The First Defendant submitted that the Plaintiff's proposal would exclude Mark from being able to appropriately grieve and pay his respects to his siblings.
4. Third, the First Defendant proposed that Shane and Sheldon be cremated so that their ashes could be divided between the Plaintiff and himself and so they could construct any memorial they wished for the boys which could be visited by both of them and their extended families.
5. Fourth, the First Defendant noted that the car insurer agreed to pay the funeral expenses, which rendered these costs an irrelevant consideration.
6. The First Defendant also submitted that the boys were in the unsupervised care of the Plaintiff and in apparent breach of the orders made by the Federal Circuit Court when the accident occurred, and that the Plaintiff lied to police in relation to the accident in their initial investigations.
7. The First Defendant submitted that the Plaintiff's relationship with Shane and Sheldon was practically attenuated by absences owing to periods of her incarceration. The First Defendant further submitted that he provided appropriate care for the boys while the Plaintiff was incarcerated and that the boys were to return to Emerald to live with him on 17 January 2021. He argued that he had a unique and supportive connection with the boys and primary care for them for the year prior to their deaths.
8. The First Defendant outlined that he was raised in indigenous families in Dubbo and Brewarrina (the latter of which he highlighted the Plaintiff identified as having "home roots" at). The First Defendant submitted that he was accepted as a son of Mr and Mrs Boney who are Murrawarri and Wiradjuri and consider their country to be Dubbo, Coonamble and Bewarrina.
9. The First Defendant identified that he attended numerous funerals for indigenous persons where there was no smoking ceremony undertaken and the funerals he attended included those where cremations occurred. Further, he highlighted the evidence of Ms Boney, an Elder in her indigenous community who accepted the First Defendant as her brother and was accepted in the Aboriginal community as indigenous. It was her evidence that cremation of Aboriginal deceased occurred prior to colonisation, that the cemetery in Brewarrina contained many indigenous persons who were cremated, and that there was no cultural reason for an Aboriginal person not to be cremated. That was reiterated by the evidence of Anthony Boney, a Wiradjuri Elder, who noted he was aware of cremations occurring due to cost factors and people moving away from where they were born.
10. The First Defendant submitted that while he was not indigenous by birth he had been raised in an indigenous culture and has been accepted in the Aboriginal community. Therefore, he argued that his proposal would enable all parties to appropriately and practically mourn the loss of Shane and Sheldon in a culturally accepted way.

Consideration

1. The grief suffered by all relevant persons on the death of these two small boys is unimaginable. The Court's task is difficult and challenging but this dispute must in everyone's interest be resolved expeditiously.
2. This case is not about who is or was the better parent or which parent has the least flaws. That said criminality, misconduct or worse associated with the death of a person may require that a person forfeit the right to a grant of administration, In Estate of Crippen [1911] P108, Re G (1946) 62 TLR 279. No such question arises here.
3. Given the ages of the children unsurprisingly there is no issue about a will, letters of administration or the wishes of either child.
4. The principle focus of the case is to decide as best as is possible the appropriate person to have the carriage of their burial or cremation.
5. Here there is no doubt the Plaintiff has and still does use drugs. She is also on a methadone program. The Defendant in his evidence spent considerable time pointing to the Plaintiff's various failings including her drug use, dishonesty and periods of incarceration.
6. However she was entirely candid about her life in that regard in my view. It should not be ignored that the Defendant was in a relationship with the Plaintiff for about five years and had two children with her. He was it seems prepared to leave the children with her when he was away working and certainly when the couple separated in 2016. He was also content to leave the children on the basis that they would be cared for by the Plaintiff's mother and her husband. It should also be observed that the children were never taken into care and at all times either lived with the Plaintiff when she was not in gaol or as I have observed with her mother and partner and the Defendant never made any formal application for the custody of the children at that time.
7. It was the Defendant who unilaterally decided to take the children away from their mother and grandparents in early 2020. On one account of those events one of the children was upset but was comforted by his grandmother, she not realising what the Defendant had in mind. I can accept that the Defendant may genuinely have believed what he was doing was in the best interests of the children but at the time he had no orders of any Court which permitted him to do what he did. The grandparents promptly sought a Recovery order in the Federal Circuit Court and it is true that no such order had been made prior to the children's death, and that access questions were being dealt with on a compromise basis, as is clear from Judge Boyle's December 2020 orders (CB.117-123). The Court, however, had ordered Mr Stephen Ralph, a forensic psychologist, to report as to the effect of, amongst other things, the Defendant having taken the children away from their maternal grandparents and in particular the effect on them of being taken off country.
8. Another question the Court was to consider having assessed in Mr Ralph's report was whether the children should remain with the Defendant or be returned to the grandparents. The matter was due to be back before the Court on 16 March 2021 for mention and no doubt the listing of a possible hearing date. In other words although it was put that the children had been for a year in Queensland prior to their death, their future was yet to be considered by the Court. It could not safely be assumed given the history that the Defendant would have been successful in opposing a return to the grandparents.
9. Mr Ralph was not called before the Court in this matter. In addition, neither the Defendant's current partner nor his older daughter were called to speak as to the children's wellbeing during the year in Queensland. The point of this is that it was submitted that the children were by implication well cared for, indeed better cared for whilst in Queensland. I accept there is evidence that the Defendant in the boys' interests attempted to maintain contact with indigenous culture whilst they were at school in Queensland, with limitations due to Covid. But for the reasons stated I do not consider their year in Queensland deserves anywhere near the weight put on that fact by the Defendant.
10. The evidence before the Court is that a substantial proportion of their lives was spent in the Wellington area and in particular under the stable and loving influence of their maternal grandparents when their mother was incarcerated when the Defendant was either away working or in Queensland after he and the Plaintiff separated. They spent most of their pre-school and schooling in Wellington and made many contacts with other indigenous persons and learnt their secret men's business from their grandfather in Wellington.
11. As to the other spiritual and cultural aspects of the case the evidence called by the Plaintiff was I am satisfied far more compelling than that called by the Defendant.
12. There is little doubt that many indigenous persons, for the reasons stated by the Plaintiff's witnesses, believe firmly that burial on or near country is of the utmost importance for entry into the afterlife. I accept that the Plaintiff and her witnesses, especially the elders Ms Bell and Mr Carr, genuinely believe those notions to be true.
13. The elders called by the Defendant simply say that they and other indigenous persons they know have no concern about cremation. But that response is not based on any cultural or spiritual notions in my view rather it is a simple recognition that some indigenous persons do not observe the customs and beliefs articulated by the Plaintiff's witnesses, not that they do not exist.
14. I consider the community where the boys have spent a substantial proportion of their lives has been in the Wellington area where not only their mother, but their maternal grandparents adhere to their beliefs about burial as opposed to cremation. Burial on country is the tradition they had been brought up in.
15. Their mother, although from the Ngemba tribe, has lived in Wellington for most of her life which is Wiradjuri land. Her mother, also a Ngemba woman, has lived in Wellington for over twenty years. Her partner is a proud Wiradjuri man and they have been together for well over twenty years. They are all against cremation.
16. Both elders, Ms Bell and Mr Carr, are residents of Wellington. Both knew the children. They oppose cremation.
17. Neither Ms Boney nor Mr Boney, the two witnesses called by the Defendant on spiritual and or cultural issues, say they knew or ever met the children. They do not live in Wellington. Ms Boney lives in Brewarrina and Mr Boney lives in Coonamble.
18. I am mindful that the children's father and his young son Mark live in Queensland and there may be difficulties in him visiting a grave in Wellington. However, so far as the funeral is concerned the evidence is that he and his family and extended family will at the expense of the GIO be able to attend a funeral in Wellington. I would also observe that after the Defendant relocated with his new partner to Queensland (his choice of location) he came to see his sons from time to time in Wellington. I accept that no doubt due to the trauma of the accident his son, Mark, does not wish to visit Wellington, but that should not be determinative. As I have said, I have no evidence from the Defendant's current partner or older daughter.
19. It is not possible in a case like this absent compromise to produce a perfect solution. But I am satisfied as a matter of discretion and in all the circumstances that the Plaintiff should have the carriage of the children's burial in Wellington as proposed. It is on the evidence before me reflective of the proportion of time they have spent as part of their all too short lives in Wellington with family and friends. It is also properly reflective of the wishes of their mother, and importantly the wishes of their maternal grandparents and much more consistent with the relevant cultural and spiritual considerations which should in my view govern the decision in this case.
20. The Plaintiff therefore succeeds in her amended summons and I would make orders in accordance with the relief claimed. I would also dismiss the Defendant's cross-claim and cross-summons.
21. I note that there will be no order as to costs.

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: 24 February 2021