Noa Nayacakalou v Raeleen Vincent

Background

1. The deceased was born in Alice Springs and lived most of his life in Griffith, New South Wales. The mother became pregnant with the deceased after a brief relationship with the father. The father was not present at the deceased's birth and had no ongoing relationship with the mother after the deceased was born.
2. The deceased lived with his mother for most of his life. She was the deceased's primary and sole caregiver until the deceased was in his late teens. The evidence indicates that the relationship between the deceased and his mother was, at times, volatile.
3. When the deceased was in Year 11, he ceased living with his mother after an argument between them. He went to live with a girlfriend in Griffith. In March 2019, the deceased moved to Batemans Bay, initially living with one of his cousins from his mother's side of the family.
4. Just before his death the deceased was living in Sydney. It is not clear on the evidence but it appears the deceased died while at Batemans Bay.
5. At around the age of 17 (it is not clear precisely when), the deceased reconnected with his father, who also lived in Griffith. The deceased did not live with his father but would visit, occasionally stay and spend time with the father, and the father's new partner and children. The deceased's relationship with his father at the time of the death was described by the father as close.
6. The deceased has four siblings: a half-brother by his mother, and two half-sisters and one half-brother by his father. He appears to have been close to all of them.
7. The deceased went to Griffith High School. He was actively involved in playing football, both Rugby League and Rugby Union, and played at representative levels. He was a member of the Griffith Black and White Rugby League Club (Club) and regarded as part of the Club's family. There is evidence that members of the Club wish to say goodbye to the deceased at a farewell service or to be able to mourn him at a graveside. There is a suggestion that the Club may hold a service of its own if the deceased's family does not hold a farewell service in Griffith.
8. As noted above, there is no longer a dispute as to whether or not any funeral take place in Griffith or whether the remains of the deceased should be buried in Griffith.

Other evidence regarding cultural matters

1. Sue Green, a Professor of Indigenous Australian Studies, is a Galari Wiradjuri woman whose family lines are linked to the mother's family. She gave evidence that the Wiradjuri people are matriarchal and that the deceased's homelands are in Euabalong.
2. Ms Green's evidence, which I accept, is that the deceased would identify as Wiradjuri through his mother's father's mother's line, even though the deceased's maternal grandmother is not Aboriginal.
3. Ms Green's evidence is that Galari Wiradjuri people acknowledge ties to other cultures as family ties, but that those other ties do not form part of their identity or impact upon their cultural practices and law. Hence, she says, the deceased is a Galari Wiradjuri man and did not identify with any other cultural group.
4. Ms Green's evidence is that, as a Galari Wiradjuri person, the deceased's mother is the head of his family and the person who makes all major decisions. Ms Green evidence is that, in this situation, where the Wiradjuri people are matriarchal and birth rights are through the female line, it is the deceased's mother who has the responsibility to ensure that cultural law is followed and to make decisions about the deceased's death rites and rituals to be followed.
5. Ms Green was cross-examined at the hearing. During that cross-examination, she gave evidence in respect of the importance of an Aboriginal person being "buried" on country. Her evidence can be summarised as follows: 1. it is important for an Aboriginal person to be buried on country so that their spirit can go back to the place that it came from; 2. having an opportunity to be laid at rest in a cemetery with forebears is significant and, indeed, could be compulsory; 3. having a person buried in a cemetery next to family is one of the most significant ways of honouring a dead Aboriginal person; 4. the term "buried" could be used to mean to bury a body or to bury ashes; and 5. traditionally, an Aboriginal is buried but if a person dies off country, they may be cremated and their ashes returned to their home place, on country, or the body brought back and buried on country - that decision lies with the head person in the family to make.

Legal principles

1. The resolution of a dispute involving the right to deal with a deceased's body is justiciable before this Court as part of its inherent jurisdiction: State of South Australia v Smith (2014) 119 SASR 247 (Smith); Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701 (Kitchener).
2. The principles upon which the Court should exercise its jurisdiction were set out by Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197. They relevantly (but not exhaustively) include: 1. where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor to dispose of the deceased's body; 2. where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue; 3. cremation is nowadays equivalent to burial; and 4. a person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
3. His Honour's statement of principle has subsequently been adopted in Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 at [48] per Rothman J.
4. In Carly White v Candice Williams [2019] NSWSC 437 at [18], [22], Sackar J provided that in the case of a deceased person who identified as Aboriginal or Indigenous: 1. gives rise to its own special and important considerations (at [18]); and 2. the preferable - and proper - approach, rather than a rigid application of the principles derived from Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and/or religious factors that are of importance (at [22]).
5. His Honour expressed agreement with the reasoning of Jones v Dodd [1999] SASC 125; Smith (2014) 119 SASR 247 and Darcy v Duckett [2016] NSWSC 1756.
6. In Jones v Dodd, Perry J (Nyland and Millhouse agreeing) provided (at [51]): …the proper approach in cases such as this [involving an indigenous deceased person] is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.
7. In Smith (2014) 119 SASR 247; [2014] SASC 64, Nicholson J identified four main considerations that could assist in the resolution of the dispute involving an indigenous deceased person, being: 1. whom might be entitled to take out letters of administration; 2. any Aboriginal cultural matters and concerns; 3. the deceased's own wishes; and 4. the wishes of any living close relatives.
8. The considerations set out in Smith and the "flexible approach" has also been adopted in Darcy v Duckett, at [8] per Campbell J, and Kitchener, at [21] per Emmett AJ.

Submissions

1. The father provides the following reasons for wanting the deceased to be buried.
2. First, the father says the deceased identified as Fijian. His evidence is that "All our relatives who have departed are currently buried in Fiji or Australia. No-one in my family has been cremated".
3. Pausing here, when asked in cross-examination as to why the father considered that the deceased identified as Fijian, he said the deceased looked "more Fijian than an Aboriginal". As noted earlier, it is agreed that the deceased identified as an Aboriginal man.
4. Second, the father says that he believes burying the deceased is important as his custom dictates that "Fijians should always remember our beloved relatives who have departed". Burying the deceased "would allow him to follow in his tradition".
5. The father also says that it is important that the deceased be buried so that the father has a place to remember and mourn the deceased and for his children to be able to grow up and visit their brother's resting place.
6. The mother's reason for wanting the deceased cremated is, she contends, because the deceased "wanted to be cremated". I return to the issue of the deceased's wishes later.
7. The mother also gave evidence that the deceased was "raised by me as a blackfellow and he spent much of his holidays at this place, being Euabalong, with Aboriginal family and friends during childhood". Her evidence is that many of her family members' remains are in Euabalong and are "both buried and cremated".
8. The father submits that he should have carriage of the funeral and authority to bury the deceased because the deceased descends from two separate and distinct cultural traditions and burial is consistent with both.
9. The father accepts that the deceased should be buried on country. He argues that his proposal to bury the deceased alongside his ancestors in the cemetery at Euabalong enables family and friends to maintain contact with the deceased through visiting and tending the grave. He also submits that it most likely reflects the deceased's traditional law and customs.
10. In support of her submission that she should be granted authority to have carriage of the funeral of the deceased and authority to dispose of the deceased's remains, the mother points to the following matters: 1. she had the primary care of the deceased during his lifetime; 2. her authority in this regard is consistent with the deceased's Aboriginal culture; 3. her intentions are consistent with the deceased's express wishes for his remains; and 4. her intentions are consistent with important elements of the deceased's Aboriginal culture and identity.
11. The mother also contends that any alleged conduct or estrangement concerning herself and the deceased should not give rise to an exercise of the Court's discretion in favour of the father. On this last point I agree.

Determination

1. The circumstances of this case are tragic. I recognise that whatever decision the Court makes will prejudice the interests of one parent and likely cause additional grief in what are already very sad circumstances.
2. The parties accept that, as parents, they have equal ranking at common law. They have both put forward proposals in an attempt to resolve the issues between them. Unfortunately, no resolution has been reached.
3. It was put that the Court's decision ultimately turns on whether the deceased should be cremated or buried. I disagree. The decision also raises the issue of who should have carriage of the funeral and custody of the deceased's body.
4. Given the force of the submissions made by both counsel, I have found this decision very difficult. Having carefully considered the matter, I have come to the conclusion that the mother should be given carriage of the funeral and custody of the deceased's body. I consider that to be the appropriate outcome because I have formed the view that the mother is best suited to deal with the remains of the deceased in a way consistent with the deceased having identified himself as an Aboriginal man of the Galari Wiradjuri people.
5. That conclusion is, on the evidence from Ms Green and other aunties on the mother's side of the family, consistent with Galari Wiradjuri tradition, which provides that the mother is the head of the deceased's family and the person who, culturally, should make decisions about his death rites and rituals. Providing the mother with that authority also recognises the nature and length of her relationship with the deceased - including as his sole parent for most of his life - to which regard should, in my view, be given.
6. The mother has agreed to bury the deceased's ashes on country at a particular location by the Lachlan River. Doing so at a known and identifiable location should enable the deceased's father, other family (including siblings on the father's side) and friends, to have a particular place for them to mourn and to remember the deceased, which I accept is important for them. It will up to the parties to consider whether there is an opportunity to have a plaque or some other memorial stone for the deceased at that location.
7. My conclusion is also consistent with the only evidence before the Court of the deceased's wishes in relation to his remains, which is of cremation. I accept that the evidence as to his wishes was vague and not in a proper form. It was not determinative or of great weight in coming to my decision but it remains a relevant factor to which the Court has had some regard.
8. In this case, other than Ms Green's, there was little evidence in respect of cultural traditions about decisions following death, about burial as opposed to cremation. The only evidence in relation to Fijian culture was from the father himself. The mother's evidence was that members of her family had been buried and cremated.
9. I accept that, on the evidence, burial on country is significant and consistent with Aboriginal traditional culture. But Ms Green's evidence is that cremation can accord with Wiradjuri culture and that it is a matter for the head of family to decide.
10. In coming to my conclusion, I have also taken into account the mother's agreement to incorporate Christian and Fijian customs into the funeral in deference to the father's wishes.
11. Finally, I note that, after delivering these reasons, counsel for the parties informed me that the mother and father had agreed to further aspects for the deceased's funeral arrangements, which are referred to below.
12. For these reasons, I make the following orders: 1. The Trustee for Collier Trenerry Trust ACN 466 509 371 (trading as Collier Trenerry) be at liberty to release the remains of [the deceased] into the custody of the cross-claimant or otherwise as directed by the cross-claimant to enable the cross-claimant to carry out the funeral arrangements of the deceased which are noted below and to dispose of the deceased's remains. 2. Dismiss the plaintiff's summons. 3. The parties to bear their own costs of the proceedings. 4. Otherwise dismiss the cross-claimant's amended summons.
13. The Court also notes the agreement of the parties that: 1. the funeral service for the deceased will be held at the Uniting Church in Griffith; 2. a community memorial service for the deceased will be held at Solar Mad Stadium located in Griffith; and 3. the plaintiff is to bear the costs of the Uniting Church service, including the costs of the Minister.

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: 31 January 2020