Coroners Act 1996 (WA)

Father to have control of body to proceed with imminent funeral

Defendant : Mr J A Sutherland (on 20 September 2007)

1 EM HEENAN J: I have been sitting in unusual circumstances to hear the submissions of the parties on an originating summons brought by the plaintiff, Olive Patricia Joseph. The plaintiff, who is the mother of the deceased, seeks an injunction to restrain the defendant, Noel Robert Dunn, the father of the deceased, from proceeding with the funeral arrangements for their son's burial at Newman. The funeral is, as things currently stand, to take place tomorrow.

2 The tragic circumstances of this case are only too apparent to everyone. I have the most profound respect and sympathy for both the plaintiff and the defendant who face the tragic situation of the sudden and unexplained death of their young son. The circumstances are that this young boy, Jesse, was found dead in a bath on 30 August 2007 at the home where he, his brother, his father and his stepmother were living at Newman. Efforts were made to revive the young boy, including various resuscitative attempts by ambulance officers and others, but unfortunately they were unsuccessful.

3 Because of the unexplained nature of the death, the district coroner assumed jurisdiction to inquire into the death. The coroner took possession of the body and directed that certain inquiries be commenced which I understand are not yet complete. There is a possibility, perhaps even a high probability, that a coroner's inquest or inquiry will yet be conducted. After initial investigations into the cause of death were completed, a forensic pathologist, after having conducted a post-mortem examination at the state mortuary, prepared, at the direction of the coroner, a confidential interim report and dispatched it to the coroner. The report is equivocal about the actual circumstances and cause of death. Although preliminary, and therefore tentative, the report suggests that this young boy, who was born on 9 April 1999, may have died as a result of some trauma to his head, but the actual cause of death has not been identified. The report indicates that there were a number of lacerations and bruises to the head, forehead, face and to the fingers and hands of the deceased. There was also some lung congestion discovered at post-mortem. No doubt further investigations will be conducted.

4 However, it is not for me to make a finding about the cause of death. That is the responsibility and the jurisdiction of the coroner and it may require further investigations and deliberation before any conclusion or finding can be reached.

5 No direct allegations have been made against the defendant suggesting that he in any way was responsible for whatever injury or cause led to the death of this young boy. However, without putting too fine a point on it, it is clear that the plaintiff, the young boy's mother, suspects that there were problems in the household and that from some unknown quarter Jesse was exposed to force. Whether that suspicion is justified or not cannot be answered at the moment and it is not the function of this court to attempt to answer it. No doubt the coroner and other authorities who have the duty and the obligation to deal with these matters will conduct full investigations. Nothing which I say now should be regarded as suggesting in any way what the outcome of those investigations should or might be.

6 The situation is that there is, sadly, a history of problems between the mother and father. They separated some time in about 2003. Initially, Jesse and his brother, Leith, and other children remained with their mother. However, at some point in time, which is not exactly clear, Jesse and his brother went into the custody of their father and remained with him. There is some dispute as to when that happened. It plainly occurred not later than about March 2004, although Mr Dunn contends that he had the care, control and custody of Jesse and his brother from an earlier date. It has not been possible in the time available to ascertain or resolve the facts which underlie those competing contentions. However, it is clear that Jesse has been in his father's care and custody since about March 2004, living at Jiggalong and various other places, and most recently in Newman.

7 The circumstances of Jesse's custody were that he lived with his father and his stepmother, with whom the father has recently become associated. It is clear that there is animosity between the mother and the stepmother. Again it is not possible to ascertain the rights or wrongs of this but on the mother's evidence the hostility is, sadly, considerable.

8 The plaintiff applied to the Family Court some time last year seeking custody of Jesse and Leith and those proceedings were still pending and unresolved at the date of Jesse's death. Very little progress appears to have been achieved with them, but they are a demonstration of the mother's attachment to both children and her desire to regain custody and control of them. It appears that she first gave up custody largely because of the results of the breakdown in the marriage and distressing adverse health and abuse habits which she developed as a result of that breakdown - habits which, I hasten to add, she claims to have abandoned.

9 At first, following Jesse's death, the defendant agreed that the plaintiff, as his mother, should take responsibility for the burial of the body and funeral arrangements. The plaintiff then proceeded to make what I unhesitatingly accept are responsible and detailed arrangements for a funeral in South Hedland. I also accept that she has the financial resources and family support to ensure that a proper and decent funeral can be conducted in South Hedland.

10 Some time afterwards, however, the father decided against proceeding on that basis. He claimed that he should have the responsibility and the initiative in deciding where, how and when the body should be interred. Accordingly, he set out to arrange for a funeral to be conducted in Newman which is programmed for tomorrow. Again I am satisfied that the defendant has the intention, ability and the resources to ensure that a proper, decent and respectable funeral can be conducted in Newman and that members of the family who are able or willing to attend will be welcome. I make the same observation about the plaintiff being able to conduct such a funeral in South Hedland and ensuring that members of the family and those interested would be welcome.

11 When the disagreement between the parents over who should have the responsibility and the power to direct the funeral emerged, those arrangements were deferred and the proposed funerals were postponed. An application was also made to the coroner to determine or to give a direction pursuant to s 30 of the Coroners Act 1996 (WA) as to whom the body should be released in order to make necessary arrangements for the burial.

12 The coroner received information, including affidavits from the parties and reports from others, all of which are contained within exhibits E and F of the proceedings before me. For reasons which she then gave on 11 September 2007, the coroner decided, on balance, and having given consideration to the very many important factors and sensitivities involved, that the body should be released to the father for burial in Newman according to his proposals. That was done and arrangements for the funeral in Newman were renewed, which led to the proposals for the funeral to be conducted tomorrow.

13 Following on from that, the present application was made to this court. I heard it first yesterday as an ex parte matter. I then ordered that notice be given to the father and that hearings be conducted on an urgent basis with video, telephone or other link-up facilities, and that has since taken place.

14 Before determining the outcome of this application I should add that following Jesse's death, his brother, Leith, who is aged 10 and who had been living in the household in Newman, was taken, with his father's approval, by his mother. He has since been living with her and her family in South Hedland. An issue may then arise about what arrangements should be made for Leith's welfare in the future. This may involve difficult questions and it is not for me to attempt in any way to decide them.

15 The fact of the matter is that Leith is with his mother at present. She believes that it is important that he should be able to attend the funeral, wherever it takes place. She also makes it clear that she fears that if the funeral is in Newman, the defendant will retake custody of Leith. For that reason the plaintiff says that she is not prepared to take Leith to the funeral if it is to take place in Newman and, that being the case, that it is undesirable that a funeral be conducted in Newman. This consideration simply highlights another feature of the tragic effects of breakdowns within a family and the fear and suspicions that can arise.

16 All I can do in these circumstances is to express the hope, indeed the expectation, that wherever this funeral is conducted, it will be conducted decently and without any oppression or threats. I also strongly suggest that Leith's future and welfare be decided dispassionately, with his interests as the paramount consideration, at a time when all persons concerned are able to bring a more balanced consideration to that important decision than is perhaps possible at this time of great grief.

17 That leads me to a consideration of what must be done on this present application. I referred this morning to decisions of this court in which the relevant legal principles are outlined. I quote, first, from the judgment of Pullin J in the case of Burrows v Cramley [2002] WASC 47:

There is no property in a corpse, and a person cannot by will dispose of his or her dead body.

After the death of a person, his or her executors have a right to the custody and possession of the body (although they have no property in it) until it is properly buried [15] - [16]. (citations omitted)

18 In another case in this court, Re Boothman SM (Unreported, WASC, Library No 990031, 27 January 1999), Owen J held that five propositions enunciated by Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 - 694 can be taken as representing the law. The relevant propositions are:

1. If a person has named an executor in his or her will and that person is ready willing and able to arrange for the burial of the deceased's body the person named as executor has the right to do so.
2. A person with the privilege of choosing how to bury the body is expected to consult with other stakeholders, but is not legally bound to do so.
3. When no executor is named, the person with the highest right to take out letters of administration will have the same privilege as the executor in proposition 1.
4. The right of the surviving spouse or de facto spouse will be preferred to the right of children.
5. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

19 The first proposition obviously does not apply in this case.

20 With regard to the second proposition, there has been an opportunity for consultation in this matter as a result of the adjournment which I allowed this morning but, unfortunately, agreement has not been possible.

21 In this case I am satisfied that both the mother and the father have equally-ranking rights to apply for administration. Therefore, the question turns largely to matters of practicalities, paying due regard to the need to have the body disposed of without unreasonable delay but with all proper respect and decency. This was a test adopted by Martin J in the case of Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446.

22 Six factors have been raised by the plaintiff in support of her submissions that she should be given the right to conduct the funeral by having possession and control of the body. First, that initially the father agreed. I must say there is no doubt that he did but, having regard to all the circumstances, I do not see that that is in any way conclusive or decisive.

23 Secondly, that she has made detailed arrangements to conduct the funeral in South Hedland. It can be said that the father has made similar arrangements to conduct a funeral in Newman and, as I have said, I am satisfied that both parties are in a position to and are able and willing to conduct a proper and decent burial. Thus, I think that the scales fall evenly on that issue.

24 Thirdly, it is said that there would be difficulty in arranging attendance at a funeral in Newman for all of the family members and I have touched on Leith's position in this regard. However, I really do not think that that should be regarded as a determining factor. If ever there was an occasion when there should be peace among members of the community, and mutual respect and regard for all members of the family, it is on such an occasion as the important but sad funeral of a young boy.

25 Fourthly, visits to the grave would be difficult practically for the mother and for members of her extended family who are living in South Hedland, quite some distance from Newman, and who do not have the financial resources to allow them to make frequent visits to the grave. It is emphasised that most, but not all, of the extended family are also in South Hedland or proximate to that town. It is also suggested that it would be more convenient for the father to travel on occasions to South Hedland to visit the grave than vice versa. I think that factor does favour the mother, although only to a small degree.

26 Fifthly, there is the fact that Jesse lived in Newman only for a relatively short period before his death. However, he was with his father in Newman and in the surrounding district for about two and a half years. It must follow that there is a degree of attachment to Newman. He was attending the local school, where he seems to have been well regarded and respected by the teachers and others. Newman is where his father lives and wishes to remain living. This is a factor which I consider favours a burial in Newman.

27 One matter which has not been mentioned by counsel is that the coroner decided, after hearing submissions, that the body should be released to the father. The significance of such a decision was discussed by Pullin J in the case of Burrows v Cramley, which I have mentioned. Although it is a factor to be taken into account, it is not to be regarded as decisive. Nevertheless, it is perhaps not insignificant that faced with this difficult decision and paying due regard to the various factors the coroner decided to release the body to the father. I should perhaps be cautious in this regard, because it seems that the coroner had before her information suggesting that Jesse had been in his father's sole care for longer than he actually was - that is, that he had been with his father for up to five years prior to his death. It seems that that information was mistaken or unreliable. Nevertheless, the fact of the matter is that Jesse had been with his father, who had been responsible for his daily care, for the last two and a half years. Further, he had only had infrequent visits from his mother. I hasten to add that this limited access had been forced upon her by a variety of considerations.

28 The final factor relied upon by the mother is her concern that Jesse was unhappy in the household at Newman and may well have been abused by a person or persons unknown and that a cloud remains over the cause of his death. I can understand why the plaintiff would hold those apprehensions, whether realistically or otherwise, and all I can say is that it will not be possible for them to be confirmed or refuted until after proper investigations have been conducted. It would be wrong to make a decision on such an important matter on the basis of suspicion. The overriding factor must be to see that there are proper and respectful arrangements made for Jesse's burial.

29 This is an extraordinarily difficult decision to have to make and I realise that no matter what decision is made one parent is likely to be extremely distressed by the result. Nevertheless, on balance, I have no doubt that the factors favour the existing arrangements for the conduct of the funeral in Newman and that the father is in a position to conduct a proper funeral in the near future and should be permitted to do so. I have reached this decision as if it were a matter to be decided on the merits rather than by relying on the well known tests for determining whether or not a court should grant an interlocutory injunction. I think that that is the correct and preferred basis of doing so, as this in effect involves the grant of final relief.

30 Even when it comes to an application for an interlocutory injunction in this case, the onus is upon the applicant to show that the balance of convenience favours the grant of temporary relief. When I consider that possibility and the disruption which would follow, given that the existing funeral arrangements would have to be abandoned so that other funeral arrangements could be renewed in South Hedland, it seems to me that that would greatly increase the distress for all members of the family. However, that is not a determining factor in my judgment. I am satisfied that the factors which I have mentioned favour the father, who has had the chief responsibility for Jesse's care in recent years, being permitted to proceed with the funeral arrangements in Newman. I therefore refuse the application for an interlocutory injunction.