Kitchener v Magistrate Thomas in his capacity as a Coroner

The Death of the Deceased

1. The Deceased and Ms Wright were together on Anzac Day, the day before the Deceased died, drinking at the house in Kempsey of Mr Barry Vale, who is Ms Wright's uncle. They later played two-up together at a hotel in Kempsey, after which they returned to Mr Vale's house, where they continued to drink. They went to sleep on a couch. At some time during the night, the Deceased woke up and he and Ms Wright had an argument. The Deceased did not go back to bed with Ms Wright. When Ms Wright awoke the next morning, the Deceased was missing. After searching for the Deceased first at her parents' house and then at the house where they had previously been living, which was being renovated, she found that the Deceased was dead.
2. Mr Vale said that the Deceased and Ms Wright were at his house on the day before the Deceased died and had been drinking with him the night before he died. He said that the Deceased and Ms Wright had an argument because the Deceased was drinking and "acting up". He said that "they made up" and that the Deceased began watching television. Subsequently, the Deceased lay down and Mr Vale left him. When he returned a short time later, the Deceased had gone. Ms Wright stayed drinking with Mr Vale and his party and stayed that night at Mr Vale's house. On the following morning, Mr Vale heard of the Deceased's death.
3. The death of the Deceased and the circumstances in which he took his own life have not been explained. For example, there was no evidence that any disagreement with Ms Wright the night before his death had anything to do with his decision to take his own life. There is simply no explanation as to why he took such a drastic step at the time when he did. If they had been, that may have thrown some light on his relationship with Ms Wright. However, no hypothesis was advised by either party as to the reason why he took his own life.

Statutory Context

1. Under the common law, where a deceased person leaves a will appointing an executor, the executor has a duty to see to the burial of the deceased and has a concomitant right to custody of the body of the deceased [2] . However, the position is not entirely clear where there is no will or no executor appointed. By analogy, the person or persons best entitled to the grant of letters of administration in respect of the estate of the deceased person would be regarded as being in the same position as an executor. It is, of course, possible for an executor to renounce probate and there will be no obligation on any person to apply for the grant of letters of administration, whether or not a grant to that person might be likely.
2. Under s 44 of the Probate and Administration Act 1898 (the Probate Act), upon the grant of probate of a will or administration of the estate of a deceased person, all real and personal estate in New South Wales which such person was seized of at the date of death passes to and becomes vested in the legal personal representative, as from the date of death. However, under s 61, from and after the decease of any person, until the grant of probate or administration or of an order to collect, the property of the deceased person is deemed to be vested in the NSW Trustee and Guardian (the NSW Trustee) constituted under the NSW Trustee and Guardian Act 2009 (NSW). The NSW Trustee is not a party to these proceedings.
3. The function of the legal personal representative of a deceased person is to get in the estate of the deceased, discharge all of the proper debts and obligations of the deceased, and then distribute the balance either in accordance with the wishes of the deceased as stated in a valid will or in accordance with the rules of intestacy as provided for under the Succession Act 2006 (NSW).
4. Since there is no executor in respect of the estate of the Deceased, it is relevant to have regard to the identity of any person who may be entitled to a grant of administration. In that regard, there could be a dispute between creditors, on the one hand, and those entitled on intestacy, on the other. However, there is no evidence in this case of any creditors of the Deceased.
5. Under s 63 of the Probate Act, the Court may grant administration of the estate of an intestate person to the following persons, not being minors:

• the spouse of the deceased;
• one or more of the next of kin; or
• the spouse conjointly with one or more of the next of kin. If there be no such person, or no such person within New South Wales, the Court may grant administration to a person who is, in the opinion of the Court, fit to be so trusted or who, upon being required in accordance with the rules or as the Court may direct, to apply for administration, complies with the requirement or direction. Finally, the Court may grant administration to any person, whether a creditor or not of the deceased, that the Court thinks fit.

1. Under s 32G of the Probate Act, a reference in the provisions referred to above to the spouse of an intestate includes a reference to a person who, at the time of death of the intestate, was the de facto spouse of the intestate, except where the contrary intention appears. A de facto spouse, in relation to a person dying wholly or partly intestate, means someone who was a partner in a de facto relationship with the person.
2. The dispute between Ms Wright and Ms Kitchener arises in the context of the provisions of the Coroners Act 2009 (NSW) (the Coroners Act). Under the Coroners Act, certain matters are reserved for the consent of the senior next of kin of a deceased person, who is given standing in relation to various matters involving post mortem examinations and the like. Under s 6A of the Coroners Act, the senior next of kin of a deceased person for the purposes of that Act is, relevantly, the deceased person's spouse or, if the deceased person did not have a spouse or children who are adults, either of the deceased person's parents. Under s 4, "spouse" means the person whom a person is legally married to or a de facto partner of the deceased.
3. Section 21C of Interpretation Act 1987 (NSW) (Interpretation Act) provides, relevantly, that a person is the de facto partner of another person if the person is in a de facto relationship with the other person. A person is in a de facto relationship with another person if they have a relationship as a couple living together and they are not married to one another or related by family. In determining whether two persons have a relationship as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: 1. the duration of the relationship; 2. the nature and extent of their common residence; 3. whether a sexual relationship exists; 4. the degree of financial dependence or interdependence between them; 5. the ownership, use and acquisition of property; 6. the degree of mutual commitment to a shared life; 7. the care and support of children; 8. the performance of household duties; and 9. the reputation and public aspects of the relationship.
4. Under s 21 of the Coroners Act, a coroner has jurisdiction to hold an inquest concerning the death of the person if it appears to the coroner that the person's death is a reportable death. The death of the Deceased was a reportable death within the meaning of the Coroners Act. Under s 56 of the Coroners Act, a coroner has a right to take possession of and retain the remains of a deceased person whenever the coroner has jurisdiction to hold an inquest concerning the death of that person. That right of the coroner has priority over any other right to possession of the remains of a person but otherwise does not affect any other such right.
5. Under s 100 of the Coroners Act, a person must not bury or cremate human remains or place human remains in a mausoleum or other permanent resting place unless that person has been given an appropriate disposal authorisation for the disposal of the remains. Under s 101, a coroner may authorise the disposal of human remains.

The Dispute

1. On 3 May 2019, Ms Kitchener received an email from the registrar of the Kempsey Local Court saying that the Coroner had confirmed, "in accordance with the Coroner's [sic] Act", that Ms Wright was the "Senior Next of Kin" of the Deceased. The email said that the Coroner "does not determine or make decisions" about funeral arrangements and that it was necessary for any family of the Deceased to talk to the "Senior Next of Kin". The registrar said that, if Ms Kitchener wished to dispute the matter, it would need to be dealt with "at a higher Court".
2. On 3 May 2019, Ierace J made orders restraining the John Hunter Hospital from releasing of the body of the Deceased until further order of the Court. On 7 May 2019, Garling J ordered that the hearing of the proceedings be expedited and fixed the proceedings for hearing on 27 May 2019 for one day. However, the hearing did not do not finish on that day and continued on successive days. At one stage the parties were given some time to negotiate a possible compromise. However, those negotiations came to naught.
3. It is common ground that, for many years, the Deceased and Ms Wright were in a de facto relationship. However, there is a dispute as to whether that relationship was continuing as at the time of the death of the Deceased. The Deceased died intestate and appears to have owned only negligible property, such that it appears highly unlikely that there will be an application for a grant of letters of administration in respect of his estate.
4. Much of the present dispute arises out of the circumstance that the Deceased was an Aboriginal man and each of Ms Kitchener and Ms Wright is an Aboriginal woman. Ms Kitchener and the father of the Deceased, Mr Leslie Ahoy, are Anaiwan people, whose traditional country is the New England region of New South Wales, including the city of Armidale. Ms Kitchener wants the Deceased to be buried in Anaiwan country. Ms Wright, however, lives in Kempsey, where she and the Deceased and their children have lived for some years. She wants the Deceased to be buried at Kempsey where she and their children continue to reside.
5. The proceedings were conducted by the parties on the basis that four considerations arose concerning the right or entitlement to conduct the burial of a deceased person of Aboriginal descent [3] . The considerations are as follows:

• the person or persons to whom a grant of letters of administration would likely be made, if applied for;
• the wishes of the deceased person, to the extent that they are known;
• the wishes and sensitivities of the living close relatives and community of the deceased person; and
• Aboriginal cultural matters and concerns.

Ms Wright as Spouse

1. Ms Wright and the Deceased had been in a relationship for some 20 years, during which, they reared six children, five of whom were the biological children of the Deceased. Ms Wright claims that she was the de facto partner of the Deceased at the time of his death. That claim is disputed by Ms Kitchener. To resolve that dispute, it is necessary to consider the evidence given by some 13 witnesses on behalf of Ms Kitchener and nine witnesses on behalf of Ms Wright.
2. Ms Wright and the Deceased met when she was 14 years old and he was 16 years old. At that time, the Deceased was living at Belmont with his aunt and uncle. At the time, Ms Wright was pregnant with her first child, who is not the biological child of the Deceased. The Deceased and Ms Wright began living together in 2000 when, according to Ms Wright, they ran away to Armidale for several weeks. Ms Wright then took the Deceased back to Gateshead near Newcastle where she was living to meet her parents. The Deceased moved in with them. Apart from two periods when the Deceased was in prison for about eight months for violence against Ms Wright, the Deceased and Ms Wright have lived together since 2000.
3. The eldest child of the Deceased and Ms Wright, Jennifer Ahoy, was born in 2001. When Jennifer was six or seven months old, the Deceased and Ms Wright returned to Newcastle where their second child, Trevanna Ahoy, was born in January 2003. They lived with her parents in Newcastle for about six months. When Trevanna was about six months old, the Deceased and Ms Wright moved back to Armidale where they lived with the Deceased's brother, Steven Ahoy for several weeks. They lived in other Department of Housing houses in Armidale for about three and a half years. Their third child, Deslie Ahoy, was born in September 2005.
4. After the Deceased first went to prison in 2007 or 2008, Ms Wright moved with their children Bowraville. When the Deceased was released, he came to live with them in Bowraville where they stayed for a total of about nine years. They lived with Ms Wright's parents at Bowraville for about 12 months and then had their own house through Bowraville Local Aboriginal Land Council. Tahlia Ahoy was born in April 2009 and Joseph Jnr Ahoy was born in March 2010. Tahlia lives with Ms Wright's aunt in Greenhill. The other children, apart from Lachlan, have always lived with Ms Wright and the Deceased. While they were living in Bowraville, the Deceased and Ms Wright were both members of the Bowraville Local Aboriginal Land Council.
5. In 2015, the Deceased and Ms Wright moved back to Kempsey, about six months after her parents had moved to Kempsey. They lived with Ms Wright's parents for about three months. In 2017, Ms Wright's brother made available to them a house at Greenhill, Kempsey, owned by Kempsey Local Aboriginal Land Council. They lived there for a little over 12 months. The house needed a lot of renovation and, while the house was being renovated, the Deceased and Ms Wright moved to her parents' house. There they remained until the Deceased died.
6. From time to time, the Deceased complained to Ms Kitchener that Ms Wright's family had a negative impact on their relationship. He told his mother that Ms Wright's parents were always interfering with their relationship and that her family did not like him.
7. Ms Rhonda Kitchener, who is Ms Kitchener's sister, gave evidence that, in the course of a fishing trip that she went on with the Deceased in 2016 or 2017, the Deceased told her that he was no longer with Ms Wright and that he was single. She said that every time she saw the Deceased he was by himself or with his youngest child, Joseph.
8. In March 2019, Mr Kenneth Froome, an elder of the Anaiwan people, attended the funeral of Ms Barbara Ahoy, the Deceased's grandmother. Mr Froome said that the Deceased told him that he was living by himself and that he had split up with Ms Wright. The Deceased told him that his children were still living with Ms Wright and that he was staying in Kempsey so that he could be near his children.
9. Jennifer, the eldest child of the Deceased and Ms Wright, gave evidence that she has lived with her parents and siblings and other relatives for as long as she can remember and that the only time when her parents were apart was when her father went to work every day. She said that she saw her father every day and that when he was working on a civil construction site near Kempsey during the last year or two he would wake up early, about 4 or 5 am in the morning, and wake her up at about 6.30am. She said that she was accustomed to seeing him before her mother or her grandfather, Mr John Wright, took the Deceased to work and that she would see her father when he returned home.
10. Rose Daley is a cousin of the Deceased and is in a relationship with Ms Wright's brother, John Wright. Ms Daley said that, in November 2012, she and John Wright moved to Bowraville where they lived with the Deceased and Ms Wright for about a year. They moved back to Armidale after that time but continued to see the Deceased and Ms Wright and their family on a regular basis. At the beginning of 2015, she and John stayed for a few months with the Deceased and Ms Wright in Bowraville, where the Deceased had a business building coffins. In October 2018 Ms Wright's cousin died and Rose Daley and John Wright travelled to Kempsey to help the Deceased with a coffin for the cousin. They stayed with the Deceased and Ms Wright and have lived with them since that time. She said that, from the beginning of 2019, when the house in which the Deceased and Ms Wright were living was being renovated, they all moved into the house occupied by Ms Wright's parents.
11. Mr John Wright (John Wright Snr), Ms Wright's father, who is a cousin of the Deceased's great grandfather, gave evidence that the Deceased and Ms Wright have, since they got together, lived either with Mr Wright or very close by him. He said that even when they were not living together he saw the Deceased and Ms Wright almost every day. He said they lived in Newcastle in around 2001, when they all moved together to West Wallsend. They subsequently moved to Armidale for a couple of years before moving to Bowraville for several years. He said that four or five years ago they all moved to Kempsey.
12. Mr Wright said that after the Deceased lost his driver's license several years ago, he drove the Deceased around every day. He said that, at the beginning of 2019, because the house in which the Deceased and Ms Wright were living was being renovated, they and their children moved into his house and were living with him when the Deceased died. Mr Wright said that he has worked with the Deceased in a coffin building business in the past few years. He said that the Deceased did most of the building and that he, Mr Wright, did most of the talking for the business, because the Deceased was very shy about that.
13. Mr Barry Vale has known Ms Wright and the Deceased all their lives. He and John Wright Snr are second cousins and for several years he had a relationship with the Deceased's aunt. Mr Vale said that, until about five months ago when renovations began on their house, the Deceased and Ms Wright lived down the road from him. Mr Vale said that he saw the Deceased and Ms Wright regularly when they came over to his house on Saturdays for drinks and when the Deceased and Mr Vale's son did landscaping work on Sundays. He said that he had occasionally witnessed the Deceased and Ms Wright arguing but that they made up quickly.
14. Ms Margaret Smith is Ms Wright's aunt and she and Mr Wright Snr live next door to each other. Ms Smith said that she saw Ms Wright and the Deceased nearly every day, that she has always seen them together and that she has never heard of them being separated. She said that in the last couple of months they have been living next door to her at Ms Wright's parents' house.
15. Mr Harry Hall is the Chief Executive Officer of Bowraville Local Aboriginal Land Council. He has known Ms Wright and the Deceased for approximately 15 years. Mr Hall made coffins with the Deceased and John Wright Snr. Mr Hall said that the Deceased was in Bowraville recently and worked for a couple of days. He said that Ms Wright came with the Deceased and stayed with him while he worked on the mission where Ms Wright's mother has family.
16. Ms Brenda Ahoy is Ms Kitchener's sister. She has known Ms Wright for over 30 years. John Wright Snr is Brenda Ahoy's cousin. Brenda Ahoy said that she speaks to Ms Wright and her children on the telephone regularly and used to go to Kempsey every fortnight. She described the relationship between the Deceased and Ms Wright as being "like any other relationship" and said that they "had their ups and downs but they stuck it out". She said that every time she saw them, they were together.
17. Ms Kitchener contends that the nature and quality of the relationship between the Deceased and Ms Wright was such that it should be afforded little weight in the resolution of the present dispute. Through her counsel, she characterised the relationship as "problematic", "volatile" and "fractured". In that regard, she relied on evidence to the following effect:

• There was domestic violence in the relationship and frequent arguing between the Deceased, on the one hand, and Ms Wright and her family, on the other, and the Deceased was imprisoned for at least eight months on two occasions for violence against Ms Wright;
• Just before Christmas 2018, the Deceased told his mother that he was "really sick, had gone onto Newstart payments and was not allowed to return to work without a medical clearance";
• At the end of 2018, the Deceased told his mother that he thought Ms Wright was in a relationship with somebody else and that he was terrified that he was going to lose his children;
• Shortly after Christmas 2018, the Deceased told his mother that he believed that Ms Wright had been cheating on him and that Ms Wright's family were always interfering, did not like him staying with them and that John Wright Snr and other members of the Wright family physically assaulted him;
• The Deceased told Rhonda Kitchener that his relationship with Ms Wright was not good;
• At the end of 2018, the Deceased told Richard Davis that he and Ms Wright were "not getting on"; and
• In the months before he died, the Deceased told his sister, Tahlia, that he thought Ms Wright was cheating on him and that they had been arguing a lot.

1. Ms Kitchener contends that, at the date of his death, the Deceased and Ms Wright were not in a de facto relationship within the meaning of the Interpretation Act. She contends that they were not living together at the date of the death of the Deceased having regard to evidence to the following effect:

• Just after Christmas 2018, the Deceased told his mother that Ms Wright was "living up with her mum and dad" and that he was "couch surfing" because they did not want him there;
• Several months before he died, the Deceased told his brother, David, that he was "on Newstart on one address" and that Ms Wright was "receiving Centrelink payments on the parents' address";
• In the month before his death, the Deceased told his sister, Tahlia Ahoy, that Ms Wright had been living with her parents with the children and that he was "couch surfing" at friends' places; and
• At his grandmother's funeral at the end of March 2019, the Deceased told his brother, David Ahoy, that he was staying at a friend's place and told Mr Kenneth Froome that he was living by himself, that he had split up with Ms Wright and that the children were living with her.

1. The evidence as to the financial relationship between the Deceased and Ms Wright is not entirely conclusive. From as early as 9 October 2017, Ms Wright had a bank account of her own and there was no evidence that the Deceased and Ms Wright had a joint bank account. There was no evidence that the Deceased and Ms Wright jointly owned any property.
2. Ms Kitchener placed considerable emphasis on evidence concerning responsibility for the care and support of the children of the Deceased and Ms Wright. Under s 25(b) of the Child Support (Assessment) Act 1989 (Cth), a parent of a child may apply for administrative assessment of child support for a child if, amongst other things, the parent is not living with the other parent as his or her partner on a genuine domestic basis, whether or not legally married the other parent. If a registrar is satisfied that an application is being properly made for administrative assessment of child support for a child, the registrar is required to accept the application and must assess both parents in respect of the costs of the child. Part 5 of the Act provides formulas for assessing the annual rate of child support payable by a parent for a child.
3. The costs to parents of raising children are to be met by both parents according to each parent's capacity. To determine each parent's capacity to meet costs, the parents are assessed in respect of the costs of the child. The provisions require each parent's percentage of care for the child to be worked out. Where the registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period, the registrar must determine the responsible person's percentage of care for the child during the care period. The percentage of care must be nought per cent unless a care arrangement applies to a child.
4. Child support statements issued by Centrelink to Ms Wright from 8 December 2017 indicate that Ms Wright was claiming child support from the Deceased. The statements indicate that, from that time, the Department of Human Services recorded that Ms Wright had 100% of the care of the children and that the Deceased had no part of the care of the children. The statements indicate that, from 1 January 2018, the Department of Human Services collected in excess of $12,500 in child support from the Deceased and paid it to Ms Wright. Outstanding child support arrears of $10,901.52 remained due and payable on the Deceased's account. The assessment statements afford evidence in support of a conclusion that the Deceased was not caring for any of the children during the periods to which the assessment statements relate. Ms Wright accepted in cross-examination that during the period from 2 September 2008 until his death the Deceased was not looking after their children and that she "had the children". She agreed that she was receiving family assistance payments as a single parent between 8 December 2017 and 31 August 2018.
5. The evidence as to whether a sexual relationship between the Deceased and Ms Wright continued up to the date of his death is not conclusive. Clearly, they have been in a sexual relationship over many years. The evidence summarised above concerning their living together would give rise to an inference that a sexual relationship continued until the death of the Deceased.

Aboriginal Cultural Matters and Concerns

1. Ms Kitchener places considerable store on Anaiwan spiritual and cultural matters. Ms Wright, however, disputed the significance of the spiritual and cultural matters relied on heavily by Ms Kitchener.
2. The Deceased was a member of the Anaiwan people, whose country is in the New England District, including Armidale. The evidence indicates that the culture, traditions and spiritual beliefs of the Anaiwan people would dictate that the Deceased should be buried in Anaiwan country. The Ahoy and Kitchener families, as well as the Wright family, have ancestral ties to the New England area. The evidence indicates that, according to Anaiwan culture, the family, relatives and friends of the Deceased person were to engage in "sorry business". It appears that "sorry business" required that various ceremonies be performed on the body of a deceased person and that, traditionally, there were two stages to a burial. The first was a smoking ceremony over the body. Once the flesh had gone from the body, the second stage was for the body to be placed in a tree and another ceremony performed. The significance of the first part was to allow the physical body to be in country and to go back to mother Earth. The second part is to enable the spirit of the deceased person to go to its final resting place.
3. Ms Kitchener was distressed by the denial of access to the body of the Deceased before 5 May 2019, when she and her family were finally given the opportunity to see the body of the Deceased at John Hunter Hospital. She gave oral evidence that, when her family finally had access to the body, the Deceased "had to be prepared culturally", something done by the "boys in the family" because women are not part of that ceremony. In her affidavit, Ms Kitchener said that a men's ceremony was held, using oils and ochres and a medicine bag. She was relieved that "the boys" finally had the opportunity to perform the ceremony, saying that it was critical for the spirit of a Deceased person for the ceremony to be done as soon as the person dies. She found it very distressing that the body of the Deceased had not been buried quickly since that was not in accord with Anaiwan culture. She said that the Deceased's family were going to have to perform another ceremony once the Deceased's body was back "on country". No particulars of such a ceremony were in evidence.
4. On the other hand, there was also evidence that modern Aboriginal burial practices have been adapted to the law of Australia. Thus, the smoking ceremony is conducted on the coffin rather than the body itself. The body is then buried in a cemetery, rather than at a traditional burial site, and the body is no longer placed into a tree.
5. I am satisfied from the evidence that, on the whole, Anaiwan people believe that it is important for an Anaiwan person to be buried in Anaiwan country. It appears that the Anaiwan culture, as well as most other Aboriginal cultures in Australia, adopts the belief that the spirit of a deceased person will not rest until the body is buried in traditional country of the deceased person. Accordingly, repatriation of Aboriginal remains to the traditional country of the deceased person is a regular practice.
6. Ms Wright contends, however, that, while "burial on country" may be an ideal, preference should be given to burial near family members because of the importance for the family of maintaining contact with a deceased person by visiting the grave of the deceased person. In that regard, Ms Wright points out that, while the children of the Deceased continue to reside with their mother in Kempsey, only one member of the immediate family of the Deceased, Steven Ahoy, lives in or around Armidale. The oldest sibling of the Deceased, Ronnie Ahoy, died before the Deceased was born and is buried at Armidale. The oldest surviving sibling of the Deceased, David Ahoy, no longer lives in Armidale. Ms Kitchener herself lives in Heddon Greta, near Newcastle. A younger brother, Cory Ahoy, is presently an inmate at the Cessnock Correctional Complex. It is unclear where he would otherwise reside. The Deceased's younger sister, Tahlia Ahoy, lives in Townsville. The youngest sibling, Nura Smith, apparently lives away from Armidale.
7. Ms Wright also draws attention to the fact that both Steven Ahoy and Ms Kitchener were prepared to accept a compromise whereby the remains of the Deceased would be cremated and half of his ashes would be interred in Armidale and half in Kempsey. It is unclear how such an arrangement would fit in with Anaiwan culture and beliefs. Ms Kitchener gave oral evidence that she did not know whether cremation would be considered "traditional Anaiwan practice", whereas Steven Ahoy gave oral evidence that cremating the body was an accepted Anaiwan practice. Steven Ahoy gave oral evidence suggesting the Deceased had discussed cremation with him, but that a final decision was never made as to the Deceased's desire to be, or not to be, cremated. There is no real evidence one way or the other that the Deceased was opposed to cremation.
8. The evidence concerning Ms Wright's position on a possible cremation of the Deceased is in dispute. Steven Ahoy asserted in his affidavit that he proposed cremation of the Deceased to Ms Wright, but that she responded that she is a Seventh Day Adventist and "we don't do that stuff". However, in her affidavit, Jennifer Ahoy said on the contrary "my mother is Catholic and so am I". That said, Jennifer's affidavit does not go further as to address specifically Ms Wright's stance on cremation.
9. The evidence makes clear that it is by no means universal for the remains of Anaiwan people to be returned to Anaiwan country. Thus, there were several examples in the evidence of Anaiwan people who died away from Anaiwan country and whose remains were not returned to Anaiwan country. Nevertheless, it is clear that many of the forebears and other relatives of the Deceased have been buried in and around Armidale and I accept that there is a strong spiritual and cultural consideration that would, in the absence of other considerations, require the burial of the Deceased in Anaiwan country.

The Wishes and Sensitivities of Close Relatives

1. Apart from Ms Wright and the children of the Deceased, the living close relatives of the Deceased gave evidence that they supported the return of the Deceased's body to Anaiwan country. Clearly, Ms Kitchener, the mother of the Deceased, is committed to that course because of her belief in the cultural importance of returning a member of the Anaiwan people to country. Leslie Ahoy, the Deceased's father, Steven Ahoy and David Ahoy, the Deceased's brothers, and Tahlia Ahoy, the Deceased's sister, all support the return of his remains to Armidale. Christina Moran, a cousin of the Deceased, Richard Davis, the Deceased's uncle, Rhonda Kitchener, the Deceased's aunt and wife of Richard Davis, all of whom were close to the Deceased while he was growing up, support the return of his remains to Armidale. There is also significant evidence from elders in the Anaiwan community in support of a return. Kenneth Froome, Glenford Morris and Sandra Wallace, all of whom are Anaiwan elders, gave evidence in support of the return of the remains of the Deceased to Armidale. In addition, letters were received from elders Cecil Briggs Senior and Steve Widders, declaring their support for Ms Kitchener's application in these proceedings.
2. On the other hand, it is clear that Ms Wright, the de facto souse of the Deceased, wishes to have the remains of the Deceased buried in Kempsey. Evidence was given by two of the Deceased's children, Jennifer Ahoy, who is 17 years old and Trevanna Ahoy, who is 16 years old. Both gave evidence that they did not identify with a particular Aboriginal tribe and had never had serious discussions with their parents concerning Anaiwan culture.
3. The only time when Jennifer engaged in cultural activities with her father was when the family went camping at Georges Creek. She said that they did not engage in cultural activities every time but that sometimes, when they were in the bush, the Deceased would teach her and the other children about where women were not allowed to go and where men were not allowed to go. He showed them how to make spears and how to use rocks. Jennifer wants her father to be buried in Kempsey where his family members are. She said that if he was buried in Kempsey she would visit his grave all the time and wanted to be able to see him every day. She said that if the Deceased was buried in Armidale, she would still go to see him but would not be able to see him very often since Armidale is a three hour drive from Kempsey and they only go to Armidale every second year or so or if something happens in the family, such as a death.
4. The Deceased did not ever tell Trevanna that he was an Anaiwan man. He simply said that he was from Armidale. Trevanna said that her father occasionally made remarks such as "don't throw stones in the fire" or "if you walk over a broom it's bad luck" or "if you jump in a window you have to jump back out again". However, she said, he did not talk to her or teach her about Aboriginal culture.
5. Shortly after the Deceased died, Trevanna's uncle Steven Ahoy, her aunt Jocelyn and her cousin Sammi-Lee, with whom she is very close, went to Kempsey. Trevanna wanted to stay with her cousin after the funeral, and so went with them to Newcastle to see the Deceased's body. They returned to Armidale where Trevanna stayed for two or three weeks with her uncle, aunt and cousin. Trevanna said that, while she was in Armidale, she thought about whether the Deceased should be taken to Armidale for burial, and raised with her mother, Ms Wright, the question of where he should be buried. She asked her mother whether the Deceased should go back to Armidale and whether her mother would go back to her own country.
6. After she returned to Kempsey, Trevanna and Jennifer discussed what they wanted for the Deceased. Trevanna said that she wanted to be able to go and see her father every day and did not want to be travelling every few days. She therefore wanted the Deceased to be buried in Kempsey. While she would go to see him in Armidale, that would only happen occasionally, whereas the cemetery in Kempsey is only 10 minutes' drive from her home and is not far from her school.
7. Steven Ahoy said that, after the death of the Deceased, Ms Wright told him that she had changed her mind and wanted the Deceased to be buried in Kempsey with her, where she could visit his grave every day. He said that, at that time, Trevanna said that her father should be buried in Armidale "back on country" but that her mother wanted him in Kempsey.
8. The Deceased's younger children are aged 13, 10 and 9 years. There is no reason to conclude that they would not be of a similar mind to their older sisters and mother.

The Deceased's Wishes

1. The body of the Deceased's step sister, Tamara, was returned from Queensland for burial in Armidale. The Deceased's paternal grandparents, to whom he was particularly close, are buried in Armidale. The Deceased was an eighth generation Anaiwan man and his forebears are all buried in Anaiwan country. There is considerable evidence that, from time to time, the Deceased expressed the wish that he be buried in Armidale. As indicated above, although he has not resided in Armidale for many years, he has long family associations with the Armidale area and continued to visit Armidale regularly before his death. Ronnie, the Deceased's oldest sibling, who died before the Deceased was born, is buried in Armidale and the Deceased was accustomed to visit his grave several times a year. The Deceased expressed the wish on several occasions to be buried close to his brother.
2. The evidence indicates that the Deceased repeatedly expressed the wish that he be buried in Anaiwan country. Leslie Ahoy, the Deceased's father, said that he spoke to the Deceased on a number of occasions about his wishes and the Deceased always told him that if ever anything happened to him he wanted "to go home to Armidale, back to Anaiwan country". Leslie Ahoy said that, at the funeral of Tamara, whom he reared as his daughter, the Deceased said in front of the family, who were sitting at the graveside after the funeral, that he wanted to be buried on Anaiwan land and he wanted to be taken "home to country" when he died. Leslie Ahoy said that all members of the family made similar statements at that time.
3. Leslie Ahoy also referred to his mother's funeral in Armidale at the end of March 2019. Because he was only able to stand for a couple of minutes at a time, he asked the Deceased to stay with him at the car and to help him. He said that, on that occasion, the Deceased said to him that, if anything happened to him, that was where he "had to be buried". He said that he had to be buried in Armidale "with the family at the cemetery". He said that he wanted to be "taken home to country" when he died.
4. Several other witnesses corroborated the evidence given by Leslie Ahoy. In particular, Ms Kitchener gave evidence that such comments were made by the Deceased on the occasions just mentioned. Steven Ahoy also gave evidence that tended to corroborate the evidence given by Leslie Ahoy. However, his evidence was shown to be unreliable in several respects. For example, Steven Ahoy made several assertions by in his oral evidence as to conversations he had with the Deceased regarding the Deceased's wishes to be buried in Armidale, that, curiously, were not mentioned in his affidavit.
5. On the other hand, Ms Wright said that she was present at the funeral of the Deceased's grandmother, Barbara Ahoy, and that she and the Deceased did not leave each other's side. She said that she did not hear any such statement by the Deceased. Having considered the foregoing evidence, and the conflicting accounts and reliability of the witnesses, I do not consider that there is any reason to doubt that the Deceased made comments such as those described above.
6. Nevertheless, Ms Wright attaches significance to the circumstances in which the statements were alleged to have been made by the Deceased, namely, at the time of the death and funeral of other members of the family and in the presence of siblings and his mother. She contends that such expressions may be treated as expressions of filial duty at times of grief rather than a considered view on the part of the Deceased. Thus, the Deceased did not make any such statements in any other context or to his children. Further, the statements were not made by the Deceased at a time when his own death in the near future was in immediate contemplation. In that regard, the circumstances in which the statements were made are significant. That is to say, they were made at a time of mourning for his step sister and grandmother and were entirely hypothetical circumstances in relation to the possible death of the Deceased himself. It is by no means clear that the statements should be treated as considered statements in contemplation of his own actual death.
7. The Deceased had lived in Kempsey for only four of his 36 years. The Deceased and Ms Wright moved many times before they moved to Kempsey. Further, there is no guarantee that Ms Wright and her children, some of whom are almost adult, will continue to live in Kempsey or that they have any wish to be buried in Kempsey. Thus, if the Deceased were to be buried at Kempsey, there would be no certainty that his children would spend the rest of their lives in close proximity to the site of his burial, since there is no evidence that any of them have any close cultural or spiritual connection with the Kempsey area. On the other hand, whether or not they are presently conscious of their cultural heritage with Anaiwan country, that is something that they may come to know in the future. In a sense, any connection that the Deceased has with Kempsey is no more than a passing one.

Conclusion

1. There is very seldom a correct answer for a question such as that raised by the present dispute. I have no doubt that the feelings expressed by both Ms Kitchener and the witnesses who gave evidence on her behalf, on the one hand, and Ms Wright and the witnesses who gave evidence on her behalf, on the other, are genuine and heartfelt. It is distressing not only for the parties to such a dispute but for any decision-maker who is required to resolve the dispute.
2. There are compelling reasons, as outlined above, for the body of the Deceased to be returned to Anaiwan country for interment. If I had concluded that the de facto relationship between the Deceased and Ms Wright had come to an end, I would have concluded that it was appropriate for his remains to be returned to Anaiwan country.
3. However, I am not persuaded that the relationship between the Deceased and Ms Wright had broken down to such an extent that Ms Wright could no longer be characterised as his de facto spouse. In those circumstances, I consider that her wishes and those of her children should be the determining factor in present circumstances, rather than the cultural considerations that might otherwise have led to a decision that the body of the Deceased should be entrusted to his mother rather than to his de facto spouse. It follows that Ms Kitchener's summons should be dismissed. Orders should be made in terms of the prayers for relief contained in Ms Wright's cross-claim.
4. The parties agreed that, irrespective of the outcome, there should be no order as to the costs of the proceedings.

Endnotes

1. See South Australia v Smith (2014) 119 SASR 247.
2. See Sharp v Lush (1879) 10 Ch Div 468 at 472.
3. See South Australia v Smith (2014) 119 SASR 247. 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: 13 June 2019