Taylor v Friday[2024] QSC 329

SUPREME COURT OF QUEENSLAND

5. [5]
   Although the Far Northern Coroner exercised a power to release the deceased’s body to his spouse, pursuant to s 26(3) of the CoronersAct2003, this is not an appeal from the Coroner’s decision, nor is this court bound by the Coroner’s findings. The matter proceeds on the basis that the Supreme Court has jurisdiction to decide the dispute.The legal position in Queensland is this. Both parties proceed on the basis that it is well settled that part of the inherent jurisdiction of the Supreme Court is a power to direct where and how a person’s remains should be disposed of. That is a discretionary jurisdiction.Despite the unfortunate nature of this application there is in fact not a shortage of authority guiding my consideration of the legal issue.

6. [6]
   The Queensland Law Reform Commission issued a report reviewing the law in relation to the final disposal of dead bodies in December 2011.

7. [7]
   That report is number 69 of the Queensland Law Reform Commission Reports. It was referred to favourably by Atkinson J in a matter decided in 2014 of Laing vLaing.^[2]Chapter 4 of the Law Reform Commission Report sets out an overview of the law with regard to the right to decide the method and place of disposal of a deceased’s body. As was pointed out in that report, when a person dies, the first priority is to arrange for the disposal of the person’s body.The question of who hasthe right to determine the method and the place of the disposal of the body is governed by the common law, which provides that the executor of a deceased person’s Will has the duty to dispose of the body of the deceased and therefore has the right to possession of the deceased’s body for the purpose of such disposal.

8. [8]
   Atkinson J did not doubt the correctness of that approach. As a starting proposition it informs the consideration here. That is, although there is no Will and therefore no executor, the court starts with the proposition that the person who has the entitlement to a grant of letters of administration is the person with the right to the possession of the deceased’s body for the purpose of disposal. Pursuant to Ch 15 of the UniformCivil Procedure Rules 1999 the priority for letters of administration on intestacy is contained in r 610. Here, the person with the first priority to the letters of administration on intestacy is the deceased’s surviving spouse, Ms Friday. The rule does not differentiate between a spouse and a de facto spouse, given that a de facto spouse, as a matter of law, is a spouse for all purposes and certainly for the purposes of this rule.

9. [9]
   The priority of the grant of letters of administration on intestacy was the approach adopted by Margaret Wilson J in Romav Ketchup^[3] where there was a similar disagreement between parties about who should have a right to arrange for the burial of the deceased. Her Honour stated at paragraph 10 that “The usual rule is the person entitled to letters of administration is responsible for the burial of the body.” The same position was adopted by Henry J in AccoomvPickering^[4] where his Honour restated the same starting point. That is, that the person entitled to the administration of the estate is the person responsible for arranging the funeral and the burial. A similarapproach was adopted by NorthJ in Johnson v George.^[5]

10. [10]
    The starting proposition, however, is not determinative and it remains to be considered whether, in the particular circumstances of the case, a different result ought to obtain. Those circumstances might include practical considerations as well as relevant religious, cultural or spiritual considerations. A very significant body of powerful material has been filed in support of this application.I do not intend to doany disservice to the importance of the evidence by delivering these reasons ex tempore. But I do so because it is over six weeks since the deceased died. It is now a matter of days before Christmas. And the combination of those circumstances, inthe context of a tragic death of a relatively young man and the father of young children, makes it necessary for the matter to be decided promptly.

11. [11]
    Nevertheless, because I am delivering these reasons ex tempore, I cannot possibly deal with the full breadth of all the facts that are before me. I have tried to summarise them as fairly as I can.

12. [12]
    The deceased was born and raised on Dunghutti country which covers an area around Kempsey, South West Rocks, parts of Port Macquarie and surrounding areas. He was one of three children. His mother was employed on a full-time basis as an administration officer at a local high school. She is an Elder of the Dunghutti people. And she deposes that it is “of immense cultural importance to have Ricky buried on Dunghutti country.” This act, she submits, respects his heritage, honours his ancestors and ensures his spirit finds a rightful resting place within his people’s lands.

13. [13]
    Mr Morris attended the South Kempsey Public School from kindergarten to year 2, a local primary school at Aldavilla, and high school at Melville High. He ceased school in year 11. His mother deposes that during his teenage years he learned the traditions and practices of the local Indigenous nation, of which he was a part. His mother asserts that Mr Morris had several traditional connections to land. He attended local camps through Aboriginal studies at Melville High School, and additionally had adeep cultural and spiritual connection to the places in the area where ancient remains date back over 200 years. Members of his family, dating back some generations, are buried on a property in the area, a site with history tied to sacred sites like the caves on local properties.

14. [14]
    It seems he met his spouse in the local area although she is originally from Townsville and does not share his connection to the Dunghutti country. Although he spent most of his young life in Kempsey he lived in Cairns with his spouse between 2009 and 2011. In 2011 they returned to Kempsey where they lived until 2017. In 2017 they moved to Cairns and then shortly thereafter to Townsville. They have remained in the Townsville area ever since. On a date that is not entirely clear, but probably in about 2013when the deceased’s second child was about one year old, a dispute arose between Mrs Taylor’s ex-partner and Mr Morris, following which Mr Morris and Ms Friday and the children moved out of the family home and settled in their own home in Kempsey, as Isay, where they remained living until about 2017.

15. [15]
    In 2017, shortly after Mr Morris celebrated his 30th birthday, the family moved to Cairns with the then two young children to seek better employment opportunities. Despite their hopes, it did not work out, and that marked the beginning of various mental health challenges for Mr Morris. Mrs Taylor alleges that the dispute that she had with her son had reconciled by about mid-2016, near the time of her sister’s 50th birthday. Mrs Taylor contends in her material that Mr Morris did not practice culture outside of Dunghutti country and that it is not culturally appropriate in fact for a Dunghutti man to practice culture whilst away from country unless permitted by Elders or traditional owners where the practice is taking place. Nevertheless, he was strong in his cultural ways and would only practice culture on his own country.

16. [16]
    Whilst Mr Morris and Ms Friday lived in Townsville for several years, late in the period they lived there, it is alleged that they settled on a plan to return to Kempsey to live. Some arrangements were made for the children to attend local schools and enquiries were made for accommodation, and employment was sought. Although the plan appears to have been a well formed one, and Ms Friday in fact herself gave evidence in relation to it, the plan was never carried out and the deceased died in Townsville late this year. Ms Friday says that the deceased changed his mind aboutthe return to Kempsey.Mr Morris’s death in November this year is not the only tragedy to beset this family. One of his sisters, who was just a year younger than him, died about a year before Mr Morris, in November 2023.

17. [17]
    Everyone agrees that Mr Morris and his sister, Casey, were profoundly close and he was deeply protective of her and they shared a special bond. Numerous people, in their affidavits, speak of the closeness of Mr Morris’s connection with country and his interestin returning to country to be near his deceased sister’s family. Ms Eunoch, for example, gave evidence about the closeness of her own relationship with Mr Morris. She visited him and his family for a period in 2022 whilst the family was still residing in Townsville. She did not think he waswell and she decided to extend her trip to spend longer with him. Her affidavit records how proud he was to show her around Townsville, including taking them to his daughter’s touch football games. She urged him to consider moving back to the Kempsey area. She does not say what his response to that urging was.

18. [18]
    In August 2024, eight months after the death of his younger sister, Ms Eunoch took a phone call from Ms Friday, who herself was concerned about Mr Morris. Ms Eunoch deposes to the fact that Mr Morris was waiting then for a decision from his deceased sister’s partner about whether a home in the area could be transferred to him. That evidence is offered as apparently to support the contention that he did in fact have a strong desire to move back home, particularly for the benefit of his sister’s children. Similar evidence has been obtained from Mr Paul Morris, the deceased’ paternal uncle, and Ms Phyllis Mosely, the deceased’ grandmother. There is also an affidavit from a Lilian Mosely, the deceased’s great aunt. Both Ms Mosely and the applicant are Elders and knowledge holders of the Dunghutti tribe.

19. [19]
    Their evidence explains the breadth of the cultural and spiritual traditions that have been passed down through generations in their community. They have given evidence that for the Dunghutti people, knowing that their loved ones are buried on traditional land, provides immense emotional comfort. Knowing that one’s loved ones are buried on cultural land also provides psychological comfort. Ms Lilian Mosely explains that belonging to traditional lands is a fundamental aspect of Aboriginal identity and cultural heritage. That the relationship with land has been nurtured over generations and is integralto the well-being and identity of Aboriginal people. In her affidavit she states, “Burial on these lands ensures that individuals are spiritually reunited with their ancestors and the land itself.The spiritual connectionprovides a sense of continuity and eternal presence within the community.”

20. [20]
    As I say, similar evidence has been given by a number of other people, including Mr Raymond French, with whom the deceased played sport. And Ms Trista Taylor, Mr Morris’s maternal first cousin, who gives evidence that she spent time in August 2024discussing the move back to Kempsey with Mr Morris. At that time his concern was to be in the area to support his deceased sister’s children. I have also received affidavits from Mr Morris’s youngest sister, Jamie Lee Morris, who also shared a close bondwith her brother. She observed the importance of her brother’s connection back to Kempsey with country and family for his cultural, social and emotional wellbeing.

21. [21]
    Many of the witnesses who have given evidence on behalf of the applicant have expressed their own views about what the deceased would have wanted according to cultural procedures and cultural ties. However, that is, in my view, only one side of the story. Ms Friday, as I say, was not born in Kempsey. She was born in Townsville. She has no connection to Kempsey, to the place or the region generally. There is no reason to think that she would ever return regularly there.This is even more likely,to me it seems, when her connection with Mr Morris’s own family has almost certainly been damaged by this dispute. I mention briefly, for example, the text messages exchanged with some members of Mr Morris’s family which demonstrates, at that time, some deep animosity against her.

22. [22]
    I accept that those messages are a reflection of the pervasive grief which the family was experiencing at the time.But the messages certainly do not give confidence to Ms Friday,or the court, that she would be welcomed if she were to return to Kempsey. Of her children, whilst the oldest two were born in Kempsey, the third was born in Cairns, and the youngest, a child not even one year of age, was born in Townsville. Whilst two of the children therefore have some connection with Kempsey, having been born there, they were nevertheless quite small when they left. The eldest of these children is now only 15, meaning that she was approximately eight when she leftKempsey.  Her younger sister waseven younger than that.

23. [23]
    Whilst I have no doubt that those children are much loved by the broader Morris family there is no compelling reason to think that any one of those four children has a particular connection with the Kempsey region themselves. In contrast, the children all have a close and abiding connection to Townsville where they live and have lived for seven years. Ms Friday has no plans to move from Townsville.Her own familyare there. Her grandfather is buried there. Her father intends to be buried in the sameplot where his father is buried. Her brothers live in Townsville. She is close to them.She proposes to stay where she is close to the family who support her. She proposes,if allowed, to bury her own husband inthe same plot where her family are buried.

24. [24]
    According to Ms Friday it was the deceased’s active choice to move away from Kempsey. Firstly, in part because of the falling out the deceased had had at the time with members of his family, and that feud had continued for some years until Ms Friday, herself, pressed for Mr Morris to make peace with his family and put aside his feelings. Her evidence is that she actively tried to encourage the deceased to maintain his relationship with his family,in particular his mother and broader family. Nevertheless, she was always recorded as the next of kin on authorities at hospitals and doctors. It seems there’slittle doubt from the broader evidence,that she was the person whom he had confidence would do what was best for his children. She advocated strenuously for assistance for him to support his mental health when hewas having difficulties over the last few years.

25. [25]
    In August of 2024, when his mental health was failing, she pressed him to go to New South Wales to see his family to see if he could obtain help from them. Whilst he was there, he sent text messages to her stating he was fretting for her and for his children and he wanted to come home. She encouraged him to stay in Kempsey until he was better, but a few days later he flew home to Cairns, and she collected him from the airport. She took him to a general practitioner, started him on anti-depressants, and helped him to work on a mental health plan.His suicidal ideation however became worse and he ultimately took his own life. According to Ms Friday, the deceased had stated to many people in the Townsville community how much he did not in fact like Kempsey and did not want to return back there.

26. [26]
    She asserts that he had said to her that if he did die, he in fact did not want to be buried in Kempsey. Although there is evidence that he used the expression, “I want to be withCasey,” being his deceased sister, the statement is capable of different interpretations referring not where he wished to be buried, but rather to the fact that he wished to die. Her evidence in relation to his lack of interest in returning to Kempsey generally is supported by some others.Mr Patrick Kelly provided an affidavit.He himself is a proud Dunghutti man, having been born and raised in Kempsey, which is where he knew Mr Morris from. However, he records many conversations he had with Mr Morris over time about their unhappiness with returning to Kempsey because of problems in the area with alcohol, drugs, gambling and domestic violence.

27. [27]
    Mr Kelly’s evidence has some importance, because although he also says that Mr Morris loved his Aboriginal culture and all that it stood for, he also had conversations with Mr Morris reflecting Mr Morris’ reluctance in fact to return to that area.

28. [28]
    As to her decision as to why she wishes to bury Mr Morris in Townsville, Ms Friday states that her decision is for her children. For their closure and their healing whilst they adjust to a life without their father. Her evidence is that her children were traumatisedby their father’s declining mental health and she does not consider it fair to create more trauma and stress for them by disconnecting them from their father. She maintains that it will not be practical, logical or financially possible for the children to visit him if he is buried in New South Wales.

29. [29]
    Additionally, she claims she will not feel safe or comfortable taking them to New South Wales after there has been unfortunate communications on social media and elsewhere that has made her feel she would be unwelcome to take her family there. As I say, the evidence from others, but also Ms Friday, was that it was the deceased’s choice to move away from Kempsey so that his children could have a different upbringing. Her own evidence was that there was no significant and settled plan to return to Kempsey. Now she is concerned that her childrensimply will not be able to overcome theirtrauma if their father is buried thousands ofkilometres away.

30. [30]
    She stresses in her affidavit that she is conscious to try to break the cycle of mental illness and trauma, and that her husband therefore needs to be laid to rest where his children are, for their wellbeing. Importantly she wants to be able to create a positive and regular connection for their children to visit their father when they are able, so that they are better able to process their grief and their loss. The one piece of evidence upon which everyone seems to agree is that Mr Morris treasured his children. It is not a leap to conclude that he would want for them what is broadly considered best for them.

31. [31]
    I have had particular regard to the decision of Henry J in Accoom v Pickering. That case was different of course because it arose in the context of a deceased personwho did not have a spouse, children or grandchildren. The dispute was between a mother and an aunt who wanted him buried in different areas. The circumstances here are quite different. The deceased had a long-term spouse and four young children. It is the prima facie position that the spouse has priority.While I accept that that starting position is not determinative and that sensitivities such as religious, cultural and spiritualones must be taken into account, it is a difficult argument to suggest that they ought to outweigh the prima facie right of the spouse and the children and to act in the best interests of those small children.

32. [32]
    Whatever decision this court makes there will be heartache and despair. Each side will consider that their claim is superior.

33. [33]
    Whilst the deceased’s family rely upon Aboriginal custom, heritage, culture and spirituality, those factors must be carefully balanced against the ones which favour the spouse and the children. Were Ms Friday’s decisions considered to be capricious or unreasonable the court might more readily set them aside. But that simply cannot be said of her. Ms Friday and Mr Morris lived in Townsville for nearly seven years. Allof their children are at school there. They are settled in the community. Mr Morris was an active member of the local Townsville football club. Indeed, the football club named a trophy after him after his death. He is inducted into the hall of fame at the Townsville Brothers Rugby League Club.He had a close and abiding connectionwith Townsville.

34. [34]
    Those facts, coupled with the children’s need to stay connected to their deceased father by having ready access to where he is buried seems to me outweighs the submission for his burial to take place in New South Wales. To bury him there will inevitably mean that his children will have little or no connection to him. There is no ground for thinking that he would have supported such an approach. Furthermore, the practical costs of repeated travel to Kempsey to visit his grave would be a substantial financial burden for a family of five. The financial burden, coupled with the inconvenience of the travel, is too burdensome in all of the circumstances. His connection with Townsville was neither transient nor fleeting. His family was there, and he had a life there.

35. [35]
    In the circumstances, whilst I have no doubt that the deceased had a close and abiding connection to the country of his family, and in no way do I question the strong cultural and spiritual connections that he had, unfortunately a decision has to be made, and in these circumstances the decision favours the spouse deciding where Mr Morrisis to be buried.

36. [36]
    In the circumstances, Mrs Taylor’s application is dismissed.

37. [37]
    No party asks for costs.