Taylor v Friday

This matter concerned a dispute over who is entitled to bury a deceased’s body in circumstances where he died intestate. The competing claims required a careful consideration of the importance of maintaining cultural connections to country as against the wishes of a spouse who did not share the same connection to country as the deceased. In an illuminating judgment, Treston J held notwithstanding the close spiritual and cultural connection to the country of his family, that the deceased’s spouse should have the decision of where to bury his body particularly noting the financial impost of his spouse and children having to travel interstate to visit his burial site.

Treston J

20 December 2024

Ricky John Morris died on 5 November 2024. He was survived by his wife, Kimberley Friday, the respondent in the proceedings, and his four infant children. He is also survived by his mother, Phyllis Taylor, the applicant to these proceedings, his younger sister and broader family members.

The deceased’s mother applied for possession and control of the deceased’s body for the purpose of burial at Kempsey in New South Wales for cultural reasons. [3]. His spouse wished for him to be buried in Townsville where she and his children reside. [4].

The application proceeded on the (correct) basis that the Supreme Court has inherent jurisdiction to direct where and how a person’s remains should be disposed of. [5]. Here, because there was 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.” [8].

Pursuant to Ch 15 Uniform Civil 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 was the deceased’s surviving spouse, the respondent. 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. [8]. That 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 occur. Those circumstances might include practical considerations as well as relevant religious, cultural or spiritual considerations. [10]

A significant body of information was relied upon to support the application.

The deceased was born and raised on Dunghutti country which covers an area around Kempsey, South West Rocks, parts of Macquarie and surrounding areas. His mother, an Elder of the Dunghutti people, deposed that it is “of immense cultural importance to have Ricky buried on Dunghutti country”. [12]. Mr Morris met his spouse in the local area although she is originally from Townsville and did not share his connection to the Dunghutti country. [14]. Mr Morris and his spouse moved from Kempsey to Cairns and then settled in Townsville. They remained in Townsville for several years and made plans to return to Kempsey although those plans never came to fruition. [16].

A year prior to the passing of Mr Morris, his younger sister, Casey, died. It was common ground throughout these proceedings that Mr Morris and Casey were profoundly close and he was deeply protective of her and they shared a special bond. [17]. A number of witnesses gave evidence as to Mr Morris’s desire to return to Kempsey to be closer to his sister’s children. In particular, the evidence given was that for the Dunghutti people, knowing that their loved ones are buried on traditional land, provides immense emotional comfort. [19]. Although it was clear that there were strong cultural connections to Kempsey for Mr Morris, her Honour noted that those were but some of the considerations for the Court in making their decision.

In particular, the cultural considerations needed to be weighed against Ms Friday’s lack of connection to the land or region generally and her poor connection with his family. [21]. Ms Friday’s position was that for the closure and healing of her children, their father must be buried in Townsville. She maintained that it would not be practical, logical or financially possible for the children to visit him if he is buried in New South Wales. [28].

Her Honour accepted the prima facie position that the spouse has priority. She went on to note that while that starting position is not determinative it is a difficult argument to suggest that sensitivities including religious or cultural ought to outweigh the prima facie right of the spouse and the children and to act in the best interests of those small children. [31]. In the circumstances, whilst the deceased had a close and abiding connection to the country of his family, and in no way questioning the strong cultural and spiritual connections that he had, in these circumstances the decision favoured the spouse deciding where the deceased was to be buried. [34]–[35].

Disposition

In the result, the application was dismissed. [36]. Neither party sought costs. [37].

K Mythen of Counsel