A Funeral, A Cremation, A Crook and His Lover

LAW SOCIETY OF TASMANIA

ELDER AND SUCCESSION LAW CONFERENCE 2018 HOBART - 22 JUNE 2018

ANNUAL DARK MOFO LECTURE A FUNERAL, A CREMATION, A CROOK AND HIS LOVER

LINDSAY ELLISON SC TEP

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1.

Life is short and in the limited time available we should not indulge ourselves by starting with cases from the early 17th century, more than 400 years ago. For those of you with an interest in rights of property in shrouds or coffins I refer you to Hayne’s Case (1614) 12 Co Rep 113; 77 ER 1389, which held there was property in a dead burned body.

2.

As early as 1908 the High Court considered the status of a dead human body as property - see Doodeward v Spence (1908) 6CLR 406. The subject matter of the action was the corpse of a still-born two-headed child which Doodeward had in his possession for some years and which had been taken from him by Spence, a police inspector. Possession of the body had passed from the mother in New Zealand when the child was born in the late 1860’s to the mother’s medical attendant who preserved the body in a bottle with spirits and “kept it in his surgery as a curiosity”. After his death it was sold at auction and came into the possession of the appellant. The police had taken the item and the appellant failed in an action for detinue in the District Court and on appeal to the Supreme Court. His appeal to the High Court was successful.

3.

In simple terms, whilst there could be no property (or ownership) in a human body at death, that did not mean it was forever incapable of having an owner.

4.

Griffith CJ said “If that is the law, it must have some other foundation. After burial a corpse forms part of the land in which it is buried, and the right of possession goes with the land. Even, however, if the asserted rule was intended to be a general application - which I doubt - it does not follow that there can be no exception to it. Many doctrines have been asserted on the supposed authority of learned persons, who, addressing themselves to one aspect of a question, have used language which has been generalised in a manner at which no one could have been more surprised than the supposed authors of the doctrine. I do not, myself, accept the dogma of the verbal inerrancy of ancient text writers. Indeed, equally acceptable authority, and of equal antiquity, may be cited for establishing as a matter of law the reality of witchcraft. But in my opinion none of the authorities cited afford any assistance in the present case.

We are, therefore, free to regard it as a case of first instance arising in the 20th century, and to decide in accordance with the general principles of law, which are usually in accord with reason and common sense.”

3 5.

However, if it was determined that someone had lawful possession of a body, it must be the case that that person had the right to invoke the law for its protection.

6.

His Honour expressed the view - “There is no law forbidding the mere possession of a human body, whether born alive or dead for purposes other than immediate burial.” Indeed, the mere possession of a mummy, or a prepared skeleton, or of a skull or other parts of a human body is not necessarily unlawful. The Court appreciated there were collections of anatomical and pathological specimens maintained by scientific bodies which could not be in violation of the law. If someone had lawful possession then that possession could be transferred.

7.

Of relevance was the fact work and skill - “perhaps not much” - had been carried out on the body and “it had acquired an actual pecuniary value.” In those circumstances it was legitimately owned as property and could be recovered under the principles of detinue.

8.

The principle flowing from this case - that if work of some sort has been carried out on the body, it is capable of being property so as to reflect the value of that work, flows through the relevant Australian cases.

9.

Fortunately we can leap forward to the jurisprudence of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680.

10.

Young J introduced his judgement as follows The first complicating factor is that, in England, the common law had nothing to do with burial of bodies and left the matter to the ecclesiastical courts. It was quite adequately dealt with there because there were rights given to each parishioner to be buried in the parish churchyard. However, in Australia where one does not have this system, there is a dearth of authority, and what cases there are tend to have been decided as a matter of great hast prior to the burial of the body. I will review some of these shortly. The present case is one where there is no great haste because the burial has already taken place, so that I am given the luxury of being allowed to spend a little more time considering the law.

4

Although Martin J in Calma v Sesar (1992) 106 FLR 446 at 451, commented, “It was rightly not pressed that this Court should be guided by the doctrines relating to rights of burial of parishioners and strangers in church yards”, that comment must not be taken to mean that such learning is irrelevant.

Probably the best exposition of how a country without church courts deals with the learning generated in church courts was given by Chancellor Kent in New York in Wightman v Wightman (1820) 4 Johnson’s Chancery Reports 343 at 347. He said (I have altered the references to the pagination of books current in Australia): “Are the principles of natural law and of Christian duty to be left unheeded and inoperative because we have no ecclesiastical courts recognised by law as specially charged with the cognizance of such matters? All matrimonial and other causes of ecclesiastical cognizance belonged originally to the temporal courts (see the case of Legitimation and Bastardy (1612) Davis 51; 80 ER 537 and the argument in the case of Praemunire (ibid at 96 (580)); and when the spiritual courts ceased, the cognizance of such causes would seem as of course to revert back to the lay tribunals.”

Jackson (The Law of Cadavers) says (at 29): “The repudiation of the ecclesiastical law and of ecclesiastical courts by the American colonies left the temporal courts the sole protector of the dead and of the living in their dead.” These words are supposed to have come from Chancellor Kent, in Wightman v Wightman, but having read the report several times I cannot find where the learned Chancellor actually said this. It certainly is a useful summary of what he held, but Wightman v Wightman was actually one involving nullity of a marriage on the ground of insanity.

Next, it should be noted that in the few reported Australian cases on the subject, English ecclesiastical law is cited without adverse comment: see, for example, Donaghy v Carrol (1910) 11 SR (NSW) 9 where the decision of the London Consistory Court in Re Dixon [1892] P 386 was relied on by counsel.

When considering what is the current legal position in Australia, one needs to consider: (a) the American cases (as, like the United States, Australia does not have ecclesiastical courts); (b) the position in England both under the common law and the ecclesiastical law; and (c) the decided cases in Australia. Of course, it must also be remembered that in New South Wales, not only is there the power that must be in the court on analogous reasoning from the American cases, but also the Charter of Justice invests the jurisdiction of the English ecclesiastical courts in this Court.

5 Furthermore, s 23 of the Supreme Court Act 1970 gives this Court all the power that it needs to administer justice in New South Wales.

11.

The novelty of the English cases is demonstrated by In Re Brick Presbyterian Church (1838) 3 Ed Ch 155 at 168, McCoun V-C quoted from Gilbert v Buzzard (1820) 3 Phill 335; 161 ER 1342, also reported (1820) 2 Hagg Con 333; 161 ER 761. This latter case is often referred to as “The Iron Coffin case”, because it concerned the alleged right to bury along with the body an iron coffin with a patent lock to foil grave robbers. However, in the course of it, Scott J, later Lord Stowell, examined the right to bury generally. McCoun V-C then said: “A faculty or grant from the bishop will authorise the erection of tombs and monuments. The person who sets them up has a right of action for injuring or defacing them during his life; and the heir of the deceased has a like right of action. The heir has a right of property in the monuments and escutcheons of his ancestors, and may bring an action against those who take or deface them.”

He cites as authority Coke on Littleton (at 18), Gibson’s Codex (at 544) and Frances v Ley (1615) Cro Jac 367;79 ER 314, a decision of the Court of Star Chamber.

In England, apart from ecclesiastical law cases, the common law courts made various pronouncements of burial rights.

In R v Stewart (1840) 12 Ad & E 773 at 778; 113 ER 1007 at 1009, Denman CJ, giving the judgment of the court, said: “Every person dying in this country … has a right to Christian burial; and that implies the right to be carried from the place where his body lies to the parish cemetery.” The learned Chief Justice then referred, with approval, to the words of Lord Stowell in the Iron Coffin case (at 349-350; 1347; 344; 765): “That bodies should be carried in a state of naked exposure to the grave, would be a real offence to the living, as well as an apparent indignity to the dead.” Denman CJ continued: “We have no doubt, therefore, that the common law casts on some one the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose. The feelings and the interest of the living require this, and create the duty….”

In R v Fox (1841) 2 QB 246; 114 ER 95, the Full Queens Bench ordered mandamus against a gaoler who declined to deliver up the body of an ex-prisoner to the executors until the prisoner’s bills had been paid.

6 12.

Justice Martin in the Supreme Court for the Northern Territory in Calma v Sesar (1992) 106 FLR 446 at 452 said “The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.”

13.

At 693 Young J set out the legal position (at least at 1997) with the respect to the right of burial in New South Wales 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. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.

3. 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.

4. Where no executor is named, the person with the highest right to take out administration

will have the same privilege as the executor in

proposition 1.

5. The right of the surviving spouse or de facto spouse will be preferred to the right of children.

6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

7 7. If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.

8. Cremation is nowadays equivalent to burial.

9. A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.

10. A right of burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot.

11. The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery.

12. Subject to such by-laws, the holder of the right of burial has the power to decide on the appearance of the grave and headstone.

13. The reasonable cost of a reasonable headstone is recoverable from the deceased’s estate.

14. The holder of the right of burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.

15. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the right of burial.

14.

For a more detailed judgement concerning the evolvement of burial and cemetery law see his Honour’s judgement in Beard v Baulkham Hills Shire Counsel and anor (1986) 7NSWLR 273. See also his Honour’s article “The exclusive right to burial” (1965) 39ALJ 50.

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Get Me To The Church On Time 15.

There is no shortage of cases when a Court at short notice has to determine who has control of the body and whether there is to be a funeral or cremation.

16.

In Burnes and anor v Richards and anor (1993) 7BPR 97624 Cohen J dealt with a deceased who lived in a “stormy” relationship with his de facto and who died intestate. The Plaintiffs were the daughter and the sister of the deceased, the Defendant was the de facto. Each of the parties claimed the right to attend to the funeral and burial arrangements.

17.

Final judgment was delivered on 6 October 1993, his Honour having two days earlier granted an ex parte injunction preventing the burial taking place on 5 October, the planned date.

18.

Notwithstanding the length of the relationship, some 17 years, the court was concerned with its deterioration and the hospitalisation of the deceased shortly before her death. The deceased appeared to have laid a complaint which resulted in an apprehended violence order. There were allegations of an assault by the de facto on the deceased.

19.

Cohen J found no particular assistance in the authorities. He said “it may well be that a de facto husband may be regarded in many respects, as the law now stands, as a person equivalent to a husband and there may be some remaining duty on him to see to the burial of his de facto wife. There again, the law is by no means certain.”

20.

However, his Honour had to determine whether the de facto relationship had ended at any time prior to the death of the deceased. Crucial was the daughter’s evidence that the deceased had rung complaining of an assault and asking she be collected from the house of the de facto.

21.

His Honour concluded -

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“Because of my doubts as to the continuance until the death of the deceased of the relationship with the first defendant, that casts a doubt first of all on any rights which he may have as to the matter of administration, notwithstanding the many years they had previously spent together, and as to whether he could be regarded as the equivalent of the husband of the deceased.”

22.

The deceased’s biological family were given the right to take charge of the body and the burial.

23.

In Warner v Levitt (1994) 7BPR 97625, Brownie J had to resolve a dispute concerning a child with the competing parties being the foster parents, and the natural parents.

24.

His Honour said “It is also an unhappy fact that the parliament has not seen fit to inact any statute to deal with the topic so that judges have had to deal with cases as and when they are brought forward, on very short notice, on imperfect evidentiary material, and in circumstances which all concerned find distressing.”

25.

His Honour had to assume certain facts notwithstanding many were “hotly disputed”.

26.

The foster parents had looked after the child for some years. The judge assumed the child had been removed from his biological parents because of (physical) abuse early in his life.

27.

The common law imposed either an obligation or a right on the parents to bury a child. The jurisprudence spoke of blood parents. His Honour found no basis in law for finding a person otherwise obliged and therefore entitled to bury a dead body loses that obligation because of mistreatment of the deceased. If they wished to exercise that right they were entitled to. He said “I venture to think that judges in times gone by would have regarded it as simply unthinkable what was described as a strict liability discharged because the person upon whom the liability

10 lay had somehow misbehaved himself or herself. I therefore reject the submission that blood parents might lose a right, assuming they had that right, to bury a dead child because of either separation or maltreatment or both.”

28.

Finding he had no alternative (not that he was looking for one) to modify a “rigid” Common Law Rule his Honour said “The law as it has been developed was founded originally on religious beliefs which not very many people would today hold, at least as faithfully as people held those religious beliefs in centuries gone by. It was also founded upon social conditions which have changed quite dramatically. In modern Australian conditions people look to foster parents and expect very great deeds from them. It might well be said, perhaps by the Department of Community Services, that if the community is to continue to look to citizens to act as foster parents, then the rights of foster parents should be better protected.”

29.

Clifford “Possum” Tjapaltjarri died in June 2002. He appointed the Public Trustee (of the Northern Territory) as executor and stipulated his place of burial as Napperby Downs Station where his wife and son were buried. Other family members claimed Aboriginal Law required the elder brother to decide funeral arrangements. The executor wished to follow the wishes of the family rather than those of the deceased. The community responsible for the Aboriginal cemetery at Napperby resolved Possum not be buried on its land without the written permission of the family. Consequently, the Public Trustee decided it could not implement the wishes of the deceased and would follow the wishes of the next of kin.

30.

Gallop AJ correctly stated the deceased had no right to control what was to be done with his body and it was a matter for the executor to determine. The executor considered it practical to follow the wishes of the family (and Aboriginal custom) notwithstanding those wishes were against the wishes of the deceased. His Honour found there was no unreasonableness in the decision of the Public Trustee and the executors decision had not been “exercised dishonestly, capriciously or unreasonably.”

11 31.

In Buchanan v Milton [1999] 2 FLR 844 (Fam B) a 26 year old father of one died intestate as a result of a traffic accident. He had been adopted from Australia from the age of two and had lived the rest of his life in England. A few years before his death, he had been contacted by his birth mother and had returned to Australia to meet his birth family, where upon he had been informed he was one of a generation of “stolen children” who had been (allegedly) improperly removed from his Aboriginal parents in the 1970’s.

32.

The dispute was between the man’s Australian birth mother on the one hand, and the mother of his daughter and his adopted mother in England (who had priority under the rules of intestacy) on the other. Soon after his death, in light of the revelations of the claimed circumstances of his adoption, the man’s adoptive family and the mother of his child had given permission to his Australian birth mother to arrange his funeral and bury him according to her wishes and cultural beliefs. The English family then changed their minds but only after the Australian birth family had made arrangements with funeral services for transportation of the body.

33.

Hale J refused the application, holding the English family members should have the grant. Her Honour considered there were no special circumstances making it necessary or expedient to displace the entitlement of the persons who would ordinarily take the grant on intestacy. She said of the administrators -

“I hope that they will take into account Professor Layton’s view that those who believe the deceased’s identity to be Aboriginal should be enabled to perform appropriate funerary rituals, but I cannot and do not insist that they should do so.”

34.

In Burrows v Cramley [2002] WASC 47 the deceased, a minor, died intestate with his parents as next of kin. The plaintiff mother wished him to be buried in Perth, the defendant husband wished he be buried in Sydney. Justice Pullin noted the Supreme Court legislation preserved the jurisdiction of the Court as “a court of ecclesiastical jurisdiction”.

12 35.

His Honour made clear the position of administrator of an intestate estate was not to be equated with the executor of the will so far as identifying the person with the obligation or right to bury the dead. That is because whereas a testator appoints an executor, the appointment of the administrator cannot be conclusively determined until the order is made by the Court. I would add that in one sense, the same applies to an executor who can always passed over but at least the nominated executor can say he or she is just that, and usually starts a long way ahead in any contest.

36.

Nevertheless, Pullin J went on to say “However, I should add that even if the “common or usual approach” is not a principle of law, it would have to be an extremely rare case to depart from the usual approach. I say this because a person who is granted letters of administration is the person who has the control over the burial arrangements: see Smith v Tamworth City Council (supra) at 691. If the “common or usual approach” is not applied on nearly every occasion, then we might soon have the spectacle of intending applicants for a grant of letters of administration seeking injunctions to restrain any dealing with the body until there has been such a grant. That would be a most unsatisfactory course in practical terms. It is much better that the decision be made expeditiously and finally, as has occurred in recent cases.”

37.

There were no decisive factors directing the decision one way or the other.

38.

Each of the parents could have obtained a grant of administration in the state which they lived. Each of them wished to bury the body. Each had contact with the deceased. Whether or not one of the parents provided greater support and comfort was not sufficiently established to be relevant. Each indicated there were a large number of family and extended family who wished to attend the funeral whether it be in Sydney or Perth. Regardless of where the funeral might be held, there would be family and friends who could not attend.

39.

Ultimately what determined the matter was the deceased died in Western Australia and notwithstanding the ease with which bodies could be relocated that is where he was. Further, the father was better placed than the mother to

13 pay for the cost of travel to visit the son’s grave in future years. Finally, the father and the father’s brother were presently in Perth and could attend the funeral.

His Honour considered “those factors, slight as they are, are enough to tip the balance in favour of a funeral in Western Australia.”

40.

In Joseph v Dunn [2007] WASC 238 Heenan J had to resolve “the tragic circumstances” of a dispute between a mother and father in respect of a funeral which was to take place the following day.

41.

The 8 year old child had died in suspicious circumstances and the matter was subject to an ongoing coronial investigation. The mother suspected “there were problems in the household (of the father where the boy lived)” but the judge said “whether that suspicion is justified or not cannot be answered at the moment.”

The parents had been separated for some years with the deceased and other children going from one household to the other.

42.

His Honour accepted the law in Tamworth City Council and the principles of Young J were those which guided his decision. However, as is usually the case, the matter turned to practicalities.

43.

The coroner had released the body to the father who was further advanced in his arrangements for the funeral. In the circumstances, on balance, the judge allowed the father to continue with those arrangements and refused the mother an injunction. He said “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.”

44.

In Estate of Lendval, Privet v Vovk [2003] NSWSC 1038 Bryson J had to contemplate the relevance of a dispute about the existence of a will in the context of determining the manner of disposal of the remains of the deceased.

45.

The plaintiff alleged he was the executor under a 2002 will and therefore had all necessary right and obligation to proceed to a cremation in accordance with the

14 deceased’s wishes as set out in that will. His “back up claim” was that if not entitled to probate, as husband of the deceased (albeit in a marriage at the hospital where she was admitted following a stroke) he would be entitled to administration on intestacy. The defendant was the son who was a significant beneficiary under the February 2002 will and a residuary legatee under an earlier 1991 will which appointed other persons as executors but which gave the defendant standing to apply for letters of administration CTA. In due course there would be disputes about the validity of the marriage and the authenticity of the testamentary documents. His Honour said “The present hasty proceedings are an altogether unsatisfactory vehicle for coming to a conclusion which would finally bind either the world at large or these parties to any conclusion made in it, and I do not attempt to do so.”

46.

With barely over a week before the commencement and conclusion of the case, his Honour treated the matter as essentially interlocutory and using the principles referrable to an injunction.

47.

His Honour considered there was enough suspicion and doubt attending the 2002 document as to signify a legitimate dispute with regard to the validity thereof.

48.

His Honour also decided there was sufficient doubt concerning the marriage and, in particular, the signature of the deceased on the marriage certificate as to raise questions about that event. Indeed, some two weeks after the purported marriage the Guardianship Tribunal made an order the deceased be placed under guardianship and her estate under management. Those orders were based on clear evidence concerning the deceased’s incapability of making financial and personal decisions.

49.

In those circumstances the marriage and the 2002 will being of doubtful validity, his Honour appointed the defendant, the closest blood relative to take control of arrangements for the funeral and disposition of the body. His Honour was not prepared to make any direction concerning cremation or burial or whether the

15 ceremony was to be conducted in accordance with the forms of the Russian Orthodox or of the Roman Catholic Church.

50.

In AB v CD [2007] NSWSC 1474 Harrison J had to decide which of the mother or father could deal with the remains of the child. It was decided to give anonymity to the parties, something that does not appear to have been done in most other cases although invariably cases involving minors are described anonymously.

51.

The child died in hospital aged 14 months. The parents had never been in any ongoing relationship. Each wanted to bury the child but as the judge said - “the dispute is effectively limited to one of geography”. He noted - “the evidence does not reveal the existence based on ethnicity, culture, religion, spirituality, or other factors of a less practical or tangible kind.” The Judge did “not wish to be taken to be discounting the importance of the views held by each parent or the genuineness with which they are held.”

52.

There is usually not the time or the inclination for cross-examination. Harrison J said “[54] Over the objections of senior counsel for the mother I permitted limited cross-examination of her on the topic of competing practical considerations. My attention was drawn to In the Estate of Jones (Deceased); Dodd v Jones [1999] SASC 458 at [4] where Doyle CJ noted that cross-examination would not have been helpful. In Keller v Keller [2007] VSC 118, Hargrave J said at [9]: [9] The authorities establish that the Court ought not, in an application such as this, embark upon a lengthy adversarial hearing to resolve the various claims and counter claims. This would delay the decision for an unacceptable period whilst the body remained undisposed of. Accordingly, cross-examination will usually be inappropriate.”

53.

His Honour concluded “[59] Notwithstanding that both the mother and the father of the child conceded that the particular circumstances of this case called for its determination by reference to matters of practicality and convenience, arguments in support of their respective contentions inevitably invited a consideration of significantly more arcane matters

16 such as love, sentiment, grief, responsibility and even anger. It would in my opinion have been curious if these matters had not become prominent in the present proceedings, and wrong to exclude consideration of them when they did. It seems to me to be presently beyond doubt that each of the child's mother and father feels the need to pursue her or his respective claims for relief for reasons not necessarily entirely associated with the ultimate outcome. This is also completely understandable. However, such factors are usually evenly balanced and not productive of satisfying or comfortable persuasion.

This case is no exception.

[60] One such matter requires specific mention. Portions of the father's affidavit evidence extracted above at par [12] disclosed that he would not be happy for his son to be buried in any cemetery that had a connection to the plaintiff's fiancé or his family. No compelling reasons why the father maintained this attitude were given. Quite apart from the absence of any satisfactory explanation, I would not be prepared to accord any significance to it as a relevant consideration. Emotional, spiritual and cultural factors are relevant but not without limitation. To take account of such a matter would in my view impermissibly enlarge the range of potential considerations beyond matters of practicality, particularly in circumstances where the merits are otherwise evenly balanced. As was the case in Joseph v Dunn (supra), I am satisfied that both the mother and the father have equally ranking rights to apply for administration…

[63] Of the several matters to which I have given anxious consideration, one factor appears to dominate all others. The plaintiff has had the primary care and responsibility for her son since his birth.

Although the child lived for only 14 months, the bond that must have developed between him and his mother will undoubtedly have been significant. M had a large number of people in his life who loved him, but his relationship with his mother was necessarily unique… ….

[65] As indicated earlier, there is a dispute about the nature and extent of the father's involvement with M and the quality and quantity of contact that they may have shared. The father was not crossexamined and I did not have any opportunity to assess him or to form any reliable view about him. His own affidavit evidence reveals, however, that his contact with M was extremely limited. In the particular circumstances of this case, that does not strike me as unusual.

[66] It is very important to emphasise that the result in this case is not, and should not appear to be, a prize for who was the better parent. It would be difficult to imagine circumstances more difficult for these young parents, each wanting to make a significant contribution to their son’s life and upbringing, than the circumstances that confronted the mother and the father in this case. M's premature

17 death has led each of them painfully to reflect upon their respective lives with him, and upon the role played by the other parent in his life. Those reflections will undoubtedly have become afflicted with inaccuracies.

[67] M should be laid to rest soon and with him the acrimony that these proceedings have revealed. How he died or in what circumstances is not known to me and cannot yet be ascertained. His mother will not, in my view, return to the Central Coast in the foreseeable future, if she does so at all. Those members of M's family and his friends who live there are in my opinion at the moment better equipped to travel to Sydney in the near future than is the plaintiff to journey to Palmdale. Arrangements are in place for M's burial in Sydney and presumably that can occur this week or at least before Christmas. That is what in my opinion should occur.”

54.

In Abraham v Magistrate Stone, Deputy State Coroner (2017) NSWSC 1684 Justice Rothman dealt with the competing claims of divorced parents as to the appropriate means of disposal of their son in accordance with Maori culture. The deceased was born in January 2000 with the relationship between the parents ceasing some three months later, with the deceased continuing to live with his mother.

55.

The mother wished to have the body of the deceased and to make arrangements, including if she so desired, to bury the deceased in New Zealand.

The father sought that the body be released to him and that in due course following cremation, the ashes be divided equally between the parents.

56.

The deceased died in police custody so the Coroner was involved. There had to be an inquest.

57.

Although there was no expert evidence, various witnesses attested to their understanding of Maori culture. The mother sought to have the deceased buried with his Maori ancestors on his maternal ancestral side. As indicated, the father sought cremation and division of the ashes. Evidence was given that under Maori cultural laws “every part of the body must be kept intact and that cremation or the burning of remains is forgiven.” One witness referred “to the heartache, social disapproval and blameworthiness with which the family would suffer, if they were perceived not to have done the correct cultural acts in relation to the burial.”

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58.

His Honour further noted “32. That dispute, it seems, is about whether the organisation of the burial and the burial site be as determined by the mother’s side or the father’s side of the family. Further, Ms Takiari says in relation to the issue of burial as distinct from cremation, the following: “Maori tradition from days of old is to bury a body, rather than cremate it. However, I have never heard of cremation being taboo or forbidden to our people.

Cremation is not people’s first preference but I have observed a shift in practices and it is not uncommon for Maori families to decide to cremate a body because it is cheaper than a burial. Where a person passed away outside of New Zealand, cremations tend to be more common as the family needs to organise mourning proceedings both in New Zealand and in the country where the deceased lived, and this becomes very expensive. However, I have also observed families to use cremations even where the deceased lived and passed away in New Zealand, particularly if the family would find it difficult to afford a burial.

33 It seems on the basis on the understanding of the parties, most of which is consistent with the foregoing statements, that the traditional view is that, in Maori culture, a body should be buried, but that recent generations have not followed the tradition to the letter and cremation occurs but is not the preferable course. However, the issue between the parties is not solely one determined by a view as to Maori culture.

59.

His Honour concluded “45. Ultimately, the deceased had expressed no view, but his perceived views are, in the circumstances, probably less important than the views of those around him and who will and do mourn his loss. The circumstances are tragic. The Court is not King Solomon.

Whatever happens, one or other party will be disadvantaged.”

56 I have found this decision most difficult. Nevertheless, the proposal described in the Affidavit of Ms Aperahama has the following benefits: it provides for a three to five day Maori funeral ceremony; it allows each of the close relatives to have some burial rights and to attend the burial ceremony; and it is the result of consultation amongst the stakeholders. It is the preferable course

19 for the majority of close relatives. Further, it is the most expeditious alternative and obviates unreasonable delay. It also avoids the further disputation that, on the evidence, will occur because of the debate in New Zealand. Yet, at the same time, it will allow some ceremony at each of the relevant marae.

57 The difficulty with the proposal is that I have formed the view that the preferable course under Maori culture is for the body to be and remain buried, rather than be cremated. I note that the Plaintiff’s acceptance of a burial in Australia instead of a cremation shows the genuineness of her view as to the dictates of Maori culture. Some of the cultural issues are discussed by the Court of Appeal of New Zealand in Takamore v Clarke [2011] NZCA 587.

Further, the High Court of New Zealand has made orders resolving disputes between family members under Maori customary law that contemplate cremation; see JSB (a child) v Chief Executive, Ministry Of Social Development (High Court of New Zealand, Heath J, 4 November 2009, unrep.).

58 The New Zealand Law Commission has also dealt with the issue in The Legal Framework for Burial and Cremation in New Zealand (IP34), which Report is publicly available at www.lawcom.govt.nzhttp://www.lawcom.govt.nz/.

“TIKANGA MĀORI CONCERNING CARE AND CUSTODY OF THE BODY Tikanga Māori contains a set of distinctive practices and principles that deals with care and custody of a deceased’s body, organisation of final burial arrangements, and decision-making among whānau, hapū and iwi of the deceased. These processes begin to unfold immediately upon death and continue throughout the tangihanga (tangi) held for the deceased. It is important in tikanga Māori to maintain the strength of the deceased’s whakapapa (genealogical) connections with past ancestors and future descendants. As a result it is expected that the deceased will be buried in their ancestral lands or the place of their birth. This is not a rigid rule. In contemporary times, many Māori are born or live outside of their tribal territories, and this can affect the outcome of the decision as to burial location and sometimes also whether burial or cremation is chosen. The process of reaching decision is important. Emphasis is placed on giving adequate expression to core underpinning values, including maintaining whakapapa connections and allowing time for debate and discussion. The final decision might be reached by way of consensus, compromise, or acquiescence; or by one party exercising greater influence or willpower over the other; but there is usually an emphasis on all present ‘owning’ the decision. It is important that any conflict is not left unresolved, or it is thought that the wairua (spirit) of the deceased will linger and the passage of the deceased to the status of ancestor will remain incomplete. Complete spiritual death only occurs once the tangihanga and its rituals have been properly concluded.” [Emphasis added.]

20 59 Even within New Zealand and in funeral arrangements that are performed in accordance with Maori culture, cremation has occurred. In Australia, that was the situation with which the Queensland Supreme Court dealt in Doherty v Doherty [2006] QSC 257.

60 In all of the circumstances, the Court will issue orders in accordance with the Cross-Claim as amended during proceedings so as to ensure that the order is not a direction to the Coroner but rather an indication of that which he is permitted to do. The effect has been explained during discussion with counsel. Such orders will allow a Maori cultural burial service in Australia and allow each of the important relatives the capacity to have ashes at the relevant ancestral or other burial location.

60.

The relevance (if any) of cultural, spiritual and religious factors which may be called to supplement the general principles referrable to burial were before Justice Campbell in Darcy v Duckett [2016] NSWSC 1756 when his Honour had to choose between the claims of the plaintiff sister and defendant de facto wife of the deceased, all parties being of aboriginal heritage. The matter was a reportable death so the Coroner had formal possession of the deceased’s remains.

61.

Relevant to his jurisdiction his Honour noted “(1) Notwithstanding the previous exercise of power under the Coroners Act, and the naming of the Coroner’s Court and the Deputy State Coroner as parties, the resolution of “disputes involving the right to bury a deceased person” are justiciable before this court as part of its inherent jurisdiction: South Australia v Smith 119 SASR 247 64 at 5; Minister for Families and Communities v Brown [2009] SASC 86; AB v CD [2007] NSWSC 1474 at [26]. It is important to emphasise that the proceedings do not involve the invocation of the Court’s supervisory jurisdiction: s 69Supreme Court Act 1970 (NSW)

62.

Referring to the decision of South Australia v Smith [2014] SASC 64 his Honour said by reference to the principles stated by Young J in Tamworth City Council “(7) It has, however, been recognised that these principles are not fixed rules which deal exhaustively with the subject. In South Australia v Smith, Nicholson J, after a review of the authorities, particularly in South Australia, concluded (at 255 [34]):

21 “The authorities decided in this State, considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded. This was the approach applied, more recently, by this court in Minister for Families and Communities v Brown. In that matter, Gray J considered not only which party had a stronger claim under common law, but also the ‘lifestyle, relationship and practices of the deceased’, in reaching a conclusion as to burial rights.”

63.

His Honour referred to the plaintiff’s case “(11) The Darcy family are from Gulargambone. The Darcy family are of the Weilwan people whose country includes the area around Gulargambone. Ms Darcy says that she has received the tradition handed to her from Weilwan elders; that the Weilwan people “were a big tribe of traditional people in Northern New South Wales”; and that they continue to follow and practise their traditions. She regards it as part of their “story and tradition” that she has received from the elders of her people that her ancestors must be buried on Weilwan country.

The Weilwan people believe that if a Weilwan person is not buried on country, his or her soul will not rest properly. Ms Darcy believes from what she has been taught that “when our people are not buried on their country with their ancestors their spirit gets lost and would always be travelling and unable to rest”. She has given evidence of the strong connection her family has with Gulargambone; of the many ancestors and relatives buried there; and of Mr Darcy’s return to Gulargambone when he was living away to attend funerals of relatives.”

64.

The defendant was “a person of the Gumbaynggirr People” whose connection was with Coffs Harbour region of New South Wales. Evidence was given of the deceased’s involvement in community activities and with Tribal Elders. The deceased had learned to speak some words of the tribal language and encouraged his children to learn the language and know their culture. The defendant gave evidence of the deceased saying he did not want to be buried in Gulargambone and Bowraville was his home and where the children were raised.

65.

Various female witnesses gave evidence of the knowledge of local Aboriginal culture.

22

66.

On behalf of the plaintiff Levina Reid gave evidence which was noted by his Honour as follows -

“(22) Ms Levina Reid affirmed an affidavit on 21 June 2016. Ms Reid is the maternal aunt of Ms Darcy and Mr Darcy. She is the person named in Mr darcy’s letter to the solicitors. Obviously she is a Weilwan person, but she did not live in Gulargambone after the age of 5. She resides at Nambucca Heads. She has always returned to Gulargambone when she can. As a maternal aunt, she is like a mother to her nieces and nephews. In accordance with tradition, Mr Darcy called her, “Mum.” She gives evidence that there are several generations of Mr Darcy’s ancestors buried at Gulargambone. It is her belief that Weilwan people must be buried at home on Weilwan country. She was not aware of any contrary desire of Mr Darcy. It is part of her traditional beliefs that if Mr Darcy is not buried at Gulargambone, his parents will not rest and he will be surrounded by other tribal people who “would torment him for being on their traditional ground.” She attaches a letter from the Weilwan Local Aboriginal Land Council stating that Mr Darcy is of the Weilwan people and that his family wish him to be buried in Gulargambone with his ancestors. It is her understanding of the traditional law of all Aboriginal peoples “that it genuinely understood that a person should be buried on country”. That a person has lived away from their country for many years makes no difference to this requirement.”

67.

His Honour referred to the evidence given on behalf of the defendant as follows -

“(24) Ms Maxine Jarrett affirmed an affidavit on 6 December 2016. She is a Gumbaynggirri person aged 58. She is Ms Duckett’s aunt and knew Mr Darcy since He started living together with Ms Duckett. She is an elder in the Gumbaynggirr community and “can talk about aspects of Gumbaynggirr law and custom”. She has been involved with the Muurrbay Language and Culture Centre in Nambucca Heads since the late 1990s. She is fluent in the Gumbaynggirr language and has been a language teacher at various schools in the Nambucca Valley. Her evidence is that Mr Darcy was accepted as part of Gumbaynggirr society and that there were no complaints about him living in Gumbaynggirr country with Ms Duckett. Gumbaynggirr people can marry outside the tribal group. But “if they do, the person who comes into Gumbaynggirr country needs to follow Gumbaynggirr rules.” Mr Darcy did this and gave respect to Gumbaynggirr elders. She said that people who marry into the Gumbaynggirr society are adopted into the tribe. “In the old days (Mr Darcy) would have been initiated into the tribe,

23 but these days people just accept them as part of the community” (at [8]). She says, at [9]: “A person who is adopted into Gumbaynggirr society can be buried in Gumbaynggirr country. We would want a person who was Gumbaynggirr to be buried on Gumbaynggirr country, including if they are adopted by the tribe. If I went to someone else’s country to marry, I would be expected to follow their law and custom. The Deceased followed our customs, so it is right that he should be buried in Bowraville.”

•

She also says, at [11]: “If the old spirits of this country had not wanted him to be here they would have moved him. They would have given him an uncomfortable feeling so that he would not have felt right here. I have felt this feeling myself outside my country – that I have to go home. The Deceased was at home in Gumbaynggirr country”.”

68.

His Honour determined as follows “(29) I turn then to the evidence concerning the cultural, spiritual and religious significance of “country” in Aboriginal law and custom. I do not regard the evidence as not necessarily conflicting. Just as secular law is nuanced and subject to refinement and exceptions, it seems that the Aboriginal law and custom of which I have received evidence in this case is similarly nuanced. If I may put it this way, I fully accept that the general rule, the strong preference, is for an Aboriginal person to be buried on country. I accept that part of the justification for this is that the soul will not be permitted by the souls of the people of that country to rest if a person is buried on other country.

(30) It makes sense that there may be exceptions to this general rule in a case like this where a Weilwan man has chosen to make his life and home with a Gumbaynggirr woman on Gumbaynggirr country and he has been accepted as part of that community by the Gumbaynggirr people. I accept the evidence that this was Mr Darcy’s situation during his life, after his permanent move to Bowraville.

(31) I acknowledge that there is some conflict between Ms Darcy and Ms Duckett as to how Mr Darcy identified himself to others. No doubt, in more recent years since 2000, Ms Duckett has been in a better position to witness these matters than Ms Darcy. I accept Ms Duckett’s evidence that he encouraged his daughters to take pride in their Gumbaynggirr heritage, culture and language. I also accept that there were occasions they discussed their own discuss their own wishes about burial. This must happen in all permanent relationships. To the extent relevant, I accept that his wishes were to be buried in Bowraville, to be close to Ms Duckett and their children.”

24 69.

Determining the case in favour of the defendant de facto spouse his Honour noted the relationship was of some 16 years with the spouse bearing 4 children to the deceased. Further, his Honour considered the connection with the Bowraville (Aboriginal) community outweighed the connection with his place of birth. Nevertheless - “it would be desirable if any essential requirements of the Weilwan funeral ceremony could be taken into account, and if possible, adopted for the burial of Mr Darcy.”

70.

The cases such as those discussed have all the features which practitioners do best to avoid. These include (a)

applications are made by litigants in person, often ex parte with no contradictor and often without counsel,

(b)

applications are made on short notice, urgently, and an approach has to be made to the Duty Judge, often out of hours,

(c)

evidence before the Court can be presented by way of information and belief, and the preparation of affidavits is rushed,

(d)

a decision must be given urgently, often without little time for judicial reflection or an appreciation of the cases,

(e)

emotions run high and there is neither the time or the inclination for a settlement or mediation,

(f)

the cases are fact specific with judicial authority sometimes of little guidance,

(g)

the Plaintiff or applicant is often impecunious, there is no time to get in a sum for costs, but fortunately the Crown usually does not seek costs.

(h)

there is no time for an appeal.

25

71.

One has the utmost sympathy for a judge asked urgently to decide one of these cases where there is often little law to help. The situation was fairly summarised by Hargrave J in Keller v Keller [2007] 15 VSC 118 who said “[1] Sarina Kellar dies peacefully on Sunday 25 February 2007, aged 81 Years. The aftermath of her death has been anything but peaceful. A bitter and spiteful dispute between her two children has led to the wholly undesirable situation - disrespectful of the deceased and offensive to ordinary standards of common decency - that Sarina’s body has yet to be disposed of, by burial or cremation.

Ashes to Ashes

72.

It was not until the decisions in Rv Price (1884) 12 QBD 247 and Rv Stephenson (1884) 13 QBD 331 that the common law recognised that cremation was not unlawful provided it was carried out in such a manner as to amount to a nuisance or to prevent an inquest. It was banned by the Catholic Church in 1886. The various Australian States enacted cremation legislation with South Australia being the first in 1891 and Tasmania in 1905. The Catholic Church removed its ban on cremation in 1964.

73.

To some extent, the developing popularity of cremation has made the task of a judge attempting to resolve a post mortem dispute (marginally) easier.

74.

In Robinson v Pinegrove Memorial Park Limited and Another (1986) 7BPR 15,097, Waddell CJ in Equity dealt with a dispute between the executor and the second defendant who had signed the cremation contract with the first defendant, the Memorial Park. The cremation had taken place.

75.

The deceased wished his ashes to be taken to England and his widow planned to leave shortly after the hearing. She wished to take with her all the ashes.

76.

The second defendant was the son the deceased. He made an arrangement with the Memorial Park that the ashes were to be halved with

26 half to be collected with the purpose of taking them to England and half to be placed in a rose garden at the Memorial Park. There was a dispute as to whether or not the widow consented to the arrangements.

77.

The evidence was the deceased wished his ashes to be taken to England and scattered there. The widow proposed to take with her the half that were in the rose garden as well as her half which she had already collected. The second defendant refused her request to authorise the first defendant to release the ashes.

78.

The trial judge was satisfied that except for the second defendant all family members wished the deceased’s wishes as to the disposal of his ashes be complied with.

79.

His Honour concluded - “it is my view that an executor has a right to possession of the ashes of a deceased who has been cremated to direct how they shall finally be disposed of and that his right will be supported by a court, particularly when the executor intends to act in accordance with the wishes of the deceased. I reach this conclusion by way of analogy from the rule of the general law that an executor has a right to possession of the corpse of the deceased for the purpose of its lawful disposal by burial or cremation or otherwise, which right, it seems to me, should be taken to extend to the ultimate disposal of the remains.”

80.

However, the contractual arrangement was between the memorial park and the second defendant, not with the executor (the wife).

81.

The relevant public health regulations required the Cremation Authority to give the ashes “appropriately packaged” into the charge of the person who applied for the cremation. The regulation continued - “if not, they shall be retained by the Cremation Authority, and, in the absence of any special arrangement for their burial or preservation, they shall be decently interred…”

27 82.

The second defendant argued as a consequence of his contract with the Crematorium it needed an order of the Court for the ashes to be handed to anyone other than himself. The judge agreed. Therefore, the next matter to be considered was whether the contractual rights of the Crematorium and the second defendant were nevertheless subject to the right of the executor to decide how the ashes should be disposed of.

83.

Looking at the facts of matter, his Honour preferred the widow’s evidence to that of the second defendant and in those circumstances decided the widow had not been consulted before the cremation and the second defendant had presented her with the arrangements made as a fait accompli and she did not protest.

84.

His Honour held the executor was entitled to the relief sought (the delivery of the remains to her), and the actions of the second defendant in paying for the cremation and incurring expense for the place the ashes were currently held (known as a Columbarium) was expenditure and arrangements incurred by him without approval of family members and therefore done by him at his own risk. Not only was the plaintiff wholly successful, the son was ordered to pay the costs of the plaintiff and the crematorium!

85.

In Leeburn v Derndorfer and anor, [2004] VSC 172, per Byrne J, the deceased by his will expressed a wish his body be cremated. It was. The parties were the three children of the deceased who had been appointed his executors and trustees and who took the residuary estate equally.

86.

The plaintiff son initially sought an order the ashes be delivered to him.

The two sisters had caused them to be interred in a cemetery without the knowledge or approval of their brother. At final hearing the brother sought an order the ashes be disinterred and he be given one third for disposal as he thought appropriate.

87.

The Judge observed the view of one of the sisters “that the division of the ashes as her brother proposed was disgusting, even sacrilegious.”

28

88.

Acknowledging the utility and correctness of the principals set out in Tamworth City Counsil, Byrne J noted “an important difference between cremation and other methods of disposition is that, after cremation, there remains the ashes. The obligations of executors with respect to the body may be complete after cremation, but what rights and obligations do they have with respect to the ashes.”

89.

Following the dictum in Pinegrove Memorial Park, his Honour noted two executors had received the ashes for the purpose of their lawful disposal, just as they had previously been entitled to the possession of the un-cremated corpse.

90.

He considered “the application of fire to the cremated body is to be seen as the application to it of work or skill which is transformed it from flesh and blood to ashes, from corruptible material to material which is less so.

The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.”

91.

His Honour concluded the interest of the executors in the ashes is that of a trustee. The executors as trustees held the ashes for the purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.

92.

His Honour observed the “greater flexibility” available when dealing with ashes as opposed to un-cremated remains. Indeed, he said, “in particular,

29 where the ashes are in a suitable container, there is little restraint upon their removal from one place to another”.

93.

His Honour referred to the decision in Fessi v Whitmore [1991] 1FLR 767 where a Chancery Judge “peremptorily dismissed as ‘wholly inappropriate’ a suggestion by the mother of a deceased child that the ashes be divided between herself and her estranged husband.”

94.

The evidence of a funeral director was taken by Justice Byrne. It was that one in ten cremations involves the division of ashes amongst family members. His Honour concluded it was within the power of the executors in possession of the ashes to deal with them by way of division and a court could, in the appropriate matter, authorise and direct that that be done.

Nevertheless, (being an equity judge) he exercised his discretion in not ordering a division of the ashes.

95.

He was “troubled” by the four years the remains had been at the cemetery and that it had taken nearly three years to institute the proceedings. There were other subjective factors.

96.

In Doherty v Doherty and anor [2006] QSC 257 the parties and the deceased were Maoris. He had been cremated and his ashes held pending determination of the proceedings. The deceased had died intestate and, prima facie, his wife was entitled to a grant of administration.

97.

The claimants were the deceased’s mother and two sisters. The principle respondent was the deceased’s wife. The claimants sought possession of half of the deceased’s ashes. They sought the ashes be buried in the deceased’s traditional homeland. There was much cultural, traditional, spiritual and religious evidence. It was suggested until the deceased’s remains were returned to his traditional homeland “his spirit will stay with his remains, waiting. His spirit will not rest until he comes home, where he will be free and at peace”. The widow had similar but different beliefs. Both parties were anxious the remains be returned to New Zealand but there was dispute as to the division of the ashes.

30

98.

His Honour said “(20) In the case of intestacy the apparent entitlement to Letters of Administration is “one matter of primary importance but it is not necessarily of conclusive importance”. The extent to which cultural considerations might conflict with the intentions of the potential administrator and the practical consequences in resolving these conflicts, has been considered in a number of cases. In Jones v Dodd Perry J (with whom Millhouse and Nyland JJ agreed) said at (p 336):“The proper approach…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 on the question.”

99.

(21) In Dow (supra), Cummins J considered differences in approach that had arisen in cases before the Supreme Court of the Northern Territory (Calma v Sesar & Ors) and in the Supreme Court of Victoria(Meier v Bell). Cummins J concluded that in establishing the “right of burial” the “administrator test is the proper prima facie test but not to the necessary exclusion of cultural or other factors where such factors substantially arise on the evidence before the court”.

His Honour concluded “(29) In the circumstances of this case it seems to me that I should regard Connie as a person who is in a position equivalent to that of an executor under the will. In that position, she is entitled to hold the ashes as trustee for the purpose of disposing of or dealing with them in a way that is appropriate.

(30) In dealing with the ashes Connie is required to have regard to the claims of relatives or others with an interest. She has stated how she proposes to deal with the ashes. She is in favour of returning the ashes, undivided, to Robert’s homeland for burial in accordance with his cultural traditions. To that extent, Connie’s intentions coincide with the wishes of the applicants. Were they entitled to have possession of Robert’s ashes, they would dispose of them in the same way. They seek division of the ashes only for the purpose of achieving the burial of some part of them at some earlier definite date.

The division of the ashes remains is a common enough practice. It is quite acceptable to some people but it is abhorred by others. Much depends on the views of the individuals involved in a particular case.

(31) Connie is against dividing the ashes. That appears to be based on personal preference and I am satisfied that her view is genuinely held. To do so would also lead to separate burial rituals

31 in presumably the same tribal homeland but perhaps years apart.

In personal terms division of the ashes would be distressing for Connie and the children. It would, I expect, be a less desirable option for the applicants, so long as the burial of the ashes intact could be undertaken at a reasonably proximate time. In the present circumstances, I am not prepared to order that the ashes be divided.

(32) Thus, it is the timing of the act of burial of the ashes which is of importance to the parties. In this regard Connie, by leaving the performance of her intention for some indefinite and indeterminate time, has not fully considered the interests of the applicants, particularly those of Robert’s mother. As a trustee, she has to strike a balance between those interests and the interests of her own children in having the capacity to participate meaningfully in the ceremony. The importance of children doing so is demonstrated by frequent reference to future generations in the quotations which I have included in paragraphs [10] – [13] above.

(33) Connie’s reluctance to fix a time when she believes the children could meaningfully participate in the ritual of burial is understandable. She and the children need time to grieve their loss. The presence of Robert’s ashes close to them will be an important feature of that grieving process. So too, ultimately, will be the closure achieved by completing the attended ritual of the return of the ashes to the family burial ground. But if she can address the wishes of Robert’s mother and sister by fixing a date for further consideration or by suggesting a process whereby those wishes and the children’s needs can be assessed then her actions as trustee will become more transparent.

(34) The difficulty for the court in resolving these deeply personal issues was aptly described by Doyle CJ in Dodd v Jones as being “insolvable in one sense. It is impossible in any realistic sense to weigh the competing claims and arrive at what one would truly call a legal judgment.” My concern is that the parties here have not allowed sufficient time for themselves to come to terms with their loss before confronting these issues. In circumstances where a person’s remains await burial, the court must necessarily decide questions speedily. Here there is the opportunity for further consideration when the respective legal position of the parties is understood and their emotions less raw. I propose therefore to make declarations as outlined in these reasons and give directions that Connie, as trustee, give further consideration to the timing of her intentions for disposing of the ashes. That consideration should be undertaken within 12 months from this day. I have chosen this period as a reasonable time for the early effects of grieving to have passed.

It may well be that earlier consideration can be undertaken. It may also be that a final decision about burial is not possible at that time. What is required of Connie is to act as trustee by having regard to the legitimate claims of Robert’s other relatives.

(35) I make the following orders – Orders

32 1.

I declare that the first respondent, Connie Doherty, is entitled to possession of the whole of the ashes remains of Robert Doherty (deceased) as trustee for the eventual disposing of the ashes by burial in the deceased’s tribal homeland.

2.

I direct the first respondent within 12 months from today to give further consideration to the likely timing of such burial and to advise interested family members of those considerations.

3.

I give to all parties liberty to apply upon giving five business days notice to each other party.

4.

I reserve the question of costs to allow the parties to make written submissions on this question within 14 days from the date hereof.”

100.

The urgency with which a burial case must be determined is not present when it comes to arguments

concerning rights of burial. These cases can be

conducted along the lines of “traditional” litigation with the usual delays and rights of appeal.

101.

For instance, proceedings in the Chancery Division of the High Court in Reed and Others v Madon and Others [1989] 2 AllER Ch D 431 took ten hearing days with a reserved judgement being delivered a few weeks later.

102.

The plaintiffs were Turkish Muslims and the relevant burial plots had to face Mecca. It came to be a body was buried in an adjoining plot which encroached upon a plot reserved to the plaintiffs. The plaintiffs sought various orders including a mandatory injunction requiring the defendant to exhume the body and remove the encroachment. The Court declined to order the exhumation but ordered the above ground memorial be moved and awarded damages for loss of burial rights and distress. Each of the plaintiffs received damages for distress of £750.

103.

Ruthford v Wallace [1999] NSWCA 299 concerned a husband’s allegation the right of burial in an allotment in the local cemetery belonged to him personally (or in his capacity as administrator of his late wife’s estate) rather than in the name of their daughter who had purchased it (albeit with money contributed by some of her siblings). Burial rights case often involve consideration of local

33 government legislation and the rules and regulations of the relevant cemetery (or crematorium) dealing with purchase and transfer of any particular allotment.

104.

In Ruthford the defendant daughter (who succeeded at first instance and became the respondent in the appeal) refused to transfer the allotment to her father who had made clear his wish to be buried alongside his wife for whom the double allotment had originally been purchased.

105.

The plaintiff/appellant was aged 84 at the time of the appeal. He had become estranged from the respondent. When the Court of Appeal ordered mediation, it was unsuccessful.

106.

Unsuccessful at first instance (in the District Court of New South Wales) the appellant lodged 70 grounds of appeal. Fortunately, only 2 were argued.

107.

The first argument involved allegations the respondent held the acquisition of the right of burial on trust for her father as administrator and the one with the relevant responsibility of burying his wife and, as such, being beneficially entitled to the property, the remaining utility in the licence passed to him.

108.

The second argument involved an allegation there was a resulting or constructive trust of the right of burial in favour of the husband as (sole) beneficiary of his late wife’s estate.

109.

Both arguments were rejected, principally because the evidence did not satisfy either.

110.

Of all the cases to be decided by majority, rather than unanimously, it had to be this one. In his dissenting judgment Fitzgerald JA agreed there was no express agreement between the parties concerning any arrangement as to the fate of the allotment. However, he was of the view the defendant/respondent was

34 acting on behalf of all family members and the right of burial was in her name merely because she was the youngest family member and would be “likely to live the longest” so far as maintaining the condition

of the allotment. In

circumstances where all family members wished the second allotment to pass to the father it would be “unconscionable” to leave that control solely to one child.

111.

In Escott v Brikha [2000] NSWSC 458 the deceased had been buried some two years earlier in circumstances arranged by his mother and brother but with the knowledge and agreement of the deceased’s wife who was entitled to administration on intestacy even though his assets passed by way of survivorship and no grant had issued. The arrangements fell apart when the widow learned the headstone had been constructed and the tombstone made no mention of the plaintiff widow.

112.

The plaintiff successfully sued (albeit with the defendants taking no active role in the proceedings) for a declaration she held the right of burial and the trustees of the cemetery transfer it to her.

113.

In Arfaras v Vosnakis [2016] NSWCA 65 the unsuccessful defendant was unsuccessful in her appeal from a decision of Robb J.

114.

At first instance Vosnakis had alleged he had allowed his wife to be buried in a double plot owned by his mother-in-law on the representation the mother-in-law would transfer the licence to him so in due course he could be buried next to his wife. As administrator of his late wife’s estate, he had buried his wife but no transfer was forthcoming.

115.

The trial judge found the conversations did not give rise to a legally binding contract but applying the principles of estoppel, Arfaras was stopped from denying Vosnakis was entitled to the perpetual interment right in respect of the burial plot. She was ordered to transfer the right to her son-in-law.

35 116.

The Court of Appeal (as did the trial judge) looked at the matter in accordance with traditional principles of constructive trust and estoppel as set out, in particular, in Waltons Stores (Interstate) v Maher (1998) 164 CLR 387.

Consideration was also given as to whether informal conversation such as that deposed to could give rise to a legally binding relationship. The appeal was dismissed.

117.

In Kovac v Chanak [2017] NSWSC 1023 the trial lasted three days and concerned an estoppel allegation with regard to burial plot licences. Again, the matter was dealt with in accordance with the traditional principles set out in Walton Stores determined by his Honour’s resolution of the conflicting oral evidence concerning conversations.

118.

The burial licences were ordered transferred. Of no particular interest is that the name of the funeral director was Christopher Lee.

119.

Some States have sought to modify the common law by way of legislative provisions concerning cremations.

120.

The Cremations Act 2003 (QLD) relevantly states “5

Permission required for cremation A person must not cremate human remains unless the person has a permission to cremate the remains, in the approved form, that was issued by (a)

if an autopsy of the remains was conducted under the Coroners Act 1958 or Coroners Act 2003 - the coroner who ordered the autopsy or, if that coroner is unavailable, another coroner; or

(b)

otherwise - an independent doctor.

Maximum penalty - 140 penalty units.

6

Getting permission to cremate (1)

The following persons may apply for a permission to cremate the human remains of a deceased person -

36 (a)

a close relative of the deceased person, either personally or through an agent;

(b)

a personal representative of the deceased person, either personally or through an agent;

(c)

if no-one mentioned in paragraph (a) or (b) applies for a permission to cremate - another adult, either personally or through an agent, who has a satisfactory explanation as to why those persons did not apply and why the adult is applying.

…

7

Deceased person’s wish to be cremated (1)

(2)

(3)

8

This section applies if a deceased person’s personal representative (a)

is arranging for the disposal of the deceased’s person’s human remains; and

(b)

knows that the deceased person has left signed instructions for his or her human remains to be cremated.

The deceased person’s personal representative must ensure that (a)

an application for permission to cremate is made; and

(b)

if the permission to cremate is issued, the deceased person is cremated in accordance with the signed instructions.

This section overrides the common law to the extent that it (a)

allows a person to direct the person’s personal representative to cremate the person’s human remains; and

(b)

qualifies a personal representative’s right to decide how to dispose of the deceased person’s human remains.

Objections to cremation (1)

This section does not apply if the deceased person has left signed instructions that his or her human remains be cremated.

37

(2)

(3)

A coroner or independent doctor must not issue a permission to cremate if the coroner or independent doctor is aware that any of the following persons object to the cremation (a)

a spouse, adult child or parent of the deceased person;

(b)

a personal representative of the deceased person.

The person in charge of a crematorium must not allow a deceased person’s human remains to be cremated at the crematorium if the person in charge is aware that any of the following persons object to the cremation (a)

a spouse, adult child or parent of the deceased person;

(b)

a personal representative of the deceased person.

Maximum penalty - 100 penalty units.

(4)

Subsection (3) applies even if the person in charge has received a permission to cremate.

(5)

This section overrides the common law to the extent that it qualifies a personal representative’s right to decide how to dispose of the deceased person’s human remains.

…

11

Dealing with ashes (1)

After a cremation, the person in charge of a crematorium (a)

must label the ashes in accordance with the requirements prescribed under a regulation; and

(b)

must not dispose of the ashes except in accordance with any reasonable written instructions of the applicant.

Maximum penalty - 80 penalty units.

(2)

However, the person in charge may bury the ashes in a burial ground if, within 1 year after the cremation, the applicant does not give reasonable written instructions for the disposal of the ashes.

38

(3)

Before burying the ashes, the person in charge must give the applicant at least 28 days written notice of intention to bury the ashes.

Maximum penalty - 80 penalty units.

…

(5)

121.

This section overrides the common law to the extent that it qualifies the personal representative’s right to decide how to dispose of the deceased person’s human remains.”

The Queensland Law Reform Commission delivered a lengthy report on “a review of the law in relation to the final disposal of a dead body” (report No 69) in December 2011. In addition to consideration of burial and cremation and the lawful methods referable thereto, the Commission looked at “recognition of funerary instructions left by a deceased person and many matters incidental thereto.”

122.

Section 2.14 deals with “aquamation”. This uses a process called alkaline hydrolysis to dissolve the body. At the end of the process, the remaining bones are crushed and can be provided to a deceased person’s family. Advocates suggest this is a more environmentally friendly process than conventional cremation. The process produces some 200-300 litres of liquid waste, the disposal of which must comply with environmental and associated legislation.

123.

Of passing interest may be the Burial and Cremation Act 2002 (Tasmania), which states “16

Religious and cultural ceremonies (1)

a crematorium manager must not, by any act, matter or thing, hinder or disturb a performance of any religious or cultural ceremony in the cremation of human remains.

Penalty: fine not exceeding 10 penalty units.

(2)

a crematorium manager must permit a representative of any religious or cultural group to exercise any religious or cultural practices in connection with the cremation of

39 human remains without any hindrance or disturbance by the crematorium manager or any other person.

Penalty: fine not exceeding 20 penalty units.

124.

Whether this section provides scope for the erection of funeral pyres and for a devoted (and, possibly, dutiful) wife to throw herself upon it might, perhaps, be considered on another occasion.

The music is gone but the memory lingers on

125.

Mahmoud (“Mick”) Hawi died on 15 February 2018 aged 37. He led a (relatively) brief but colourful life.

126.

In November 2007 the car in which he was travelling was shot up in the Sydney suburb of Leichhardt. One bullet lodged in his car seat headrest. In 2011 the clubhouse of a rival gang, the Hells Angels, in Petersham was firebombed as part of gang wars between motorcycle groups.

127.

By 2009, aged 28 he was the president of the Comanchero motorcycle gang.

He had a taste for gold and diamond jewellery. For reasons that became more apparent over time he often travelled with personal security and in a bullet proof vehicle.

128.

In March 2009 a violent and fatal brawl broke out at the domestic terminal at Sydney Kingsford Smith airport. In a fight in which there was no shortage of witnesses, a Hells Angels member who had just got off a flight was clubbed with a 17 kilogram metal bollard and stabbed with a pair of scissors. Mick Hawi called for peace and reconciliation between the bikie groups.

129.

After the airport brawl the only charges brought were of the level of affray but none connected with the death of Tony Zervas.

130.

8 days later Tony’s brother Peter Zervas was shot in a drive-by shooting in Lakemba.

40 131.

Eventually Hawi was charged with murder, found guilty and sentenced to 28 years in gaol. However, in 2014 the NSW Court of Criminal Appeal set aside the conviction and Hawi was released. He pleaded guilty to manslaughter, given a 6 year sentence and was released for time served.

132.

Whether or not revenge is a dish best served warm or cold, Hawi’s time would eventually come. On 15 February 2018 he was shot in the face and killed when sitting in his 4 wheel drive at a gymnasium car park in Rockdale. He had no chance. Two assailants were filmed on closed circuit TV but no charges have been laid.

133.

If Hawi’s blood was not worth bottling certainly his DNA is worth replicating. A prime recipient for a Darwin award was not to be out foxed.

134.

Hawi’s widow made an urgent application to Duty Judge Johnson in the Common Law Division of the Supreme Court of NSW. The State Coroner (who had custody of the body as part of the murder investigation) was named the Defendant. The affidavit sworn on behalf of the Plaintiff indicated “she desired, and still desires, to have a child from the Deceased in the near future which would need to be undertaken by way of in-vitro fertilisation. For this purpose, she requests that a post-mortem sperm retrieval by performed with respect to him.” The maximum time for the procedure to be successful was noted to be within 36 hours from the time of death. The application was made some 25 hours after death.

135.

The coroner raised no objection but required a court order.

136.

The summons originally sought an order in the nature of mandamus but Justice Johnston considered such an order was unnecessary given the coroner would comply with an order once made. There was no personal duty of the coroner to the Plaintiff.

137.

His Honour made orders not only authorising the removal of the sperm and making available the body for that purpose (with investigating police in attendance so any murder investigation would not be compromised) but also permitted the sample to go into the custody of the operating urologist or a

41 named paralegal (retained by the Plaintiff) “for delivery to an appropriate storage facility”. The sample was to be stored pending a further application to the Supreme Court concerning the use of that sample - Gonzales v State Coroner NSW [2018] NSWSC 153.

138.

The circumstances in Re Floyd [2011] QSC 218 which came before Justice Atkinson in July 2011 demonstrate the numerous special factors (to which reference was made earlier) which can attend such an application.

139.

The application was made orally by phone call to the Judge’s Associate following the Deceased’s death in a level crossing accident that morning. The application had to be heard and the procedure performed within 24 hours. The applicant herself “was unable to appear in person because she is, unsurprisingly, in a state of extreme distress and lives in Ipswich and has not been able to get into the city.” The application was heard by telephone and it appears a solicitor for the Crown appeared amicus curiae.

140.

The short judgment identifies matters which need to be (quickly) determined in such an application. Is consent to be given by the senior available next of kin or next of kin or by the coroner or by a delegated hospital officer or must the application be brought to the court. Is the proposed use a “medical purpose” when, it is expected that the proposed use is for assisted reproduction. If the death is a reportable death (which may justify an inquest) does that affect the nature of the application.

141.

Not surprisingly, again, the court authorised the removal of the testes and spermatozoa of the Deceased and the provision of that material to an organisation nominated by the applicant. The material was to be stored pending further application to the Supreme Court concerning the use of the sperm.

142.

In Edwards; re Estate of Edwards [2011] NSWSC 478 by the time of the hearing the sperm had already been extracted from the Deceased who had died in a work-place accident. This allowed R A Hume J to have a hearing and 5 weeks later publish a lengthy considered judgment. He had to deal with the Assisted Reproductive Technology Act 2007 and the Human Tissue Act 1993.

42

143.

The Plaintiff was the administrator of her late husband’s estate. She sought a declaration she was entitled to possession of his sperm.

144.

R A Hume J referred to authorities from the various states (but none from Tasmania) along with the United Kingdom, South Africa, and the United States of America.

145.

He commenced his judgment by saying - “what right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child?”.

146.

On Valentine’s Day 2009 the deceased had said to his wife knowing he might have a terminal illness - “if something happens to me I would want a part of me to be here with you. Our baby will be a part of us.” IV testing took place at the start of August 2010. They were due to attend a clinic on 6 August to discuss the preferred treatment option and had signed consent forms. Mr Edwards died in a work place accident on 5 August.

147.

Late on the evening of 5 August Duty Judge Simpson made orders providing the deceased’s body be made available for the purpose of extracting sperm, and that the sperm be stored and not be released until further order. These orders were unexceptional.

148.

In his considered judgment his Honour reflected on the orders made by the Duty Judge.

149.

The court determined the provisions of the Assisted Reproductive Technology Act 2007 did not permit the use of sperm to obtain assisted reproduction treatment in NSW, the deceased having provided no written consent.

150.

Likewise, some of the provisions of the Human Tissue Act which required written consent could not (obviously) be complied with.

43 151.

However, the “designated officer” had a discretion in certain circumstances to authorise the removal of tissue. Removal “for medical purposes” included the proposed use of the sperm in Assisted Reproductive Treatment.

152.

His Honour continued “38 What, then, is the status and effect of the orders made by Simpson J on 6 August 2010? The Supreme Court has a wide jurisdiction to do all that is necessary for the administration of justice in New South Wales: s 23 Supreme Court Act 1970. Questions were raised in the submissions for the Attorney General as to the appropriateness of the orders made by Simpson J. However, it was also acknowledged that as orders of a superior court of record they were binding and of force until set aside: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620. It must also be borne in mind that Simpson J was presented with an urgent and unusual application, very late at night, by an undoubtedly grief stricken applicant and with no assistance by any legal practitioner.

39 There is only one decision of this Court that is concerned with a question as to the removal of sperm from a man unable to provide his consent. In MAW v Western Sydney Area Health Service [2000] NSWSC 358; (2000) 49 NSWLR 231, O'Keefe J dealt with an urgent application to authorise the taking of sperm from a man who was in a coma and in imminent danger of dying. The proceedings were said to invoke the parens patriae jurisdiction of the Court. O'Keefe J held that this jurisdiction did not extend to authorising a non-therapeutic surgical procedure such as was proposed. He also indicated that even if he had jurisdiction, he would not exercise the discretion in favour of making the orders sought. The issues considered in MAW were different to those raised in the present proceedings and I note that the Human Tissue Act has been the subject of a number of significant amendments in the intervening years.

40 Mr Kirk submitted that whether or not the removal of the sperm was legally valid, the Court must accept the facts as they presently are and deal with the present application upon those facts. It was submitted that the legality or otherwise of the removal remains of relevance to the discretion to be exercised. Having said that, the difficulties attendant upon the application to Simpson J were noted, and the concession was made that the requirements in the Human Tissue Act for properly authorised removal of tissue would not seem to have been insurmountable hurdles if there had been a correct understanding of the statutory provisions.

153.

His Honour turned to the question of whether there could be property in the sperm. He said -

44

“48

Three decisions of single judges of the Supreme Court of Queensland were referred to in the course of submissions. They each concerned an urgent application for the taking of sperm from deceased men but they also considered the property issue.

49

The application for the taking of sperm was refused in Re Gray [2000] QSC 390; [2001] 2 Qd R 35. Chesterman J referred to authorities for the proposition that there is no property in a deceased body of a human being. His conclusion is encapsulated in the following: [20] The principle clearly established, that the deceased's personal representative or, where there is none, the parents or spouse, have a right to possession of the body only for the purposes of ensuring prompt and decent disposal has, I think, the corollary that there is a duty not to interfere with the body or, to use the language found in Pierce, to violate it. These principles are inimical to the proposition that the next of kin or legal personal representative may remove part of the body

50 In Baker v State of Queensland [2003] QSC 2, Muir J found the circumstances of the application were not relevantly distinguishable from those in Re Gray and the application was dismissed by the adoption of the reasoning of Chesterman J. 51 Atkinson J granted the application in Re Denman [2004] QSC 70; [2004] 2 Qd R 595. Her Honour referred to Re Gray and Baker v State of Queensland but found (at [35]) that there were "valid public policy arguments" that pointed in the opposite direction to those which she thought had led Chesterman and Muir JJ to refuse the applications in those cases. The authorities concerned with the property status of a deceased body that Chesterman J referred to were not directly addressed in her Honour's judgment.

154.

His Honour turned to the “then” recent decision of the Court of Appeal of England and Wales in Yearworth v North Bristol Trust [2009] EWCA Civ 37 and said “66 The Court accepted (at [31] - [32]) that long-standing authorities established the propositions that there was no property in either a living human body or a human corpse. Reference was made (at [33]) to Doodeward v Spence , which, it was noted (at [34] - [36]), had been acknowledged in Dobson v North Tyneside Health Authority and in R v Kelly . In the latter it was held that human body parts which had been preserved and were in the possession of the Royal College of Surgeons

45 and used in training surgeons could be property and thus the subject of theft. Rose LJ stated (at 630-631): "We accept that, however questionable the historical origins of the principle, it has now been the common law for 150 years at least that neither a corpse nor parts of a corpse are in themselves and without more capable of being property protected by rights. ... ... [But] parts of a corpse are capable of being property within s 4 of the [Theft Act 1968], if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes ...

Furthermore, the common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property for the purposes of s 4, even without the acquisition of different attributes, if they have a use or significance beyond their mere existence."

155.

Concluding his consideration his Honour said “79

There are, of course, significant features of the present case that differentiate it from those to which I have referred. They have each involved issues of ownership or property rights which have been determined by the application of established principles, or the extension of such principles, within the specific factual matrix of the case at hand. Aside from Doodeward v Spence , none are binding upon this Court. However, it is of some use to see that the law has not remained rigid but has been applied with a flexibility, albeit significantly constrained, in order to meet new situations exposed by the advancement in medical technology.

80

It was submitted by Mr Kirk, correctly with respect, that I am bound by the decision of the High Court in Doodeward v Spencer , notwithstanding that it is over 100 years old. However, it was also submitted that there was persuasive force in what Master Sanderson said in Roche v Douglas about not ignoring the physical reality. There is a sample of sperm being stored by IVF Australia. It is a real object; a physical thing. It has a value or worth in an intangible sense. Indeed, it has, as Mr Kirk put it, potentially enormous human importance to Ms Edwards and her family. These are matters that the law should recognise and protect.

81

I take Bryson J in Pecar v National Australia Trustees Ltd and Anor to have adopted a similarly pragmatic approach in recognising that the samples in that case amounted to "property", at least from the perspective that there was an entitlement to possession of them.

82

Applying Griffiths CJ's test in Doodeward v Spence to the facts of the present case, the removal of the sperm was lawfully carried

46 out pursuant to the orders made by Simpson J. Work and skill was applied to it in that it has been preserved and stored.

Accordingly, on this long standing and binding authority the sperm removed from the late Mr Edwards is capable of being property.

156.

83

I do not find the Queensland decisions, apart from Bazley v Wesley Monash IVF Pty Ltd , of any real assistance. It is significant that each was concerned with an application for removal of sperm from a deceased man, whereas the proceedings at hand involve a factual matrix that is beyond that issue.

84

Bazley v Wesley Monash IVF Pty Ltd and the cases from other jurisdictions provide support for the conclusion of property.

Although they are not binding, they are, collectively, persuasive of the view that the law should recognise the possibility of sperm being regarded as property, in certain circumstances, when it has been donated or removed for the purpose of being used in assisted reproductive treatment. Yearworth shows a preparedness of the England and Wales Court of Appeal to extend the law considerably beyond Doodeward v Spence .

However, the conclusion of property in the present case can be made under the High Court's long-standing authority without any need for further exploration of the limits of the law.

85

Sanderson M in Roche v Douglas saw a distinction between the case before him, involving tissues removed from a body, and authorities that were concerned with whether a deceased body can be property. There may well be an importance in some circumstances of recognising such a distinction. However, the authorities to which I have referred demonstrate a repeated application of Doodeward v Spence to the property status of body parts or tissues removed from a body. For the purpose of the case at hand I do not see that any distinction is significant.

Having decided that sperm was capable of being property, the next matter to be determined was “whose property”. It was not the deceased’s property.

157.

His Honour continued - “ “91 Subject to a consideration of various discretionary aspects to which I am next to turn, in my view Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm. ”

47

158.

The legislation did not permit the Plaintiff to use the sperm to obtain Assisted Reproductive Treatment in NSW. There was a long and detailed exposition of whether the court should knowingly put the sperm into the possession of the Plaintiff in the realistic appreciation she would take it elsewhere and use it for a purpose not permitted in NSW.

159.

At [110-114] the legislation in other states (but not, then, Tasmania) was considered. Where there was no legislation, recourse was had to the guidelines of the Australian Government National Health and Research Council. In appropriate circumstances these permitted removal of the gametes post mortem.

160.

Victorian, Queensland, and United Kingdom decisions dealt with matters relevant to with whether the Plaintiff should be permitted to obtain elsewhere what she was prohibited from obtaining in NSW.

161.

AB (who subsequently became YZ) was a determined wife. In AB v Attorney General (Victoria) [2005] VSC 180 Hargrave J prohibited the applicant from using her late husband’s sperm. In YZ v Infertility Treatment Authority (General) [2005] VCAT 2655 she sought and obtained permission from the Tribunal overturning the decision of the authority which refused her permission to remove the sperm from Victoria and transfer it to the ACT where all relevant procedures were legally available. A similar result, permitting interstate removal was reached in GLS v Russell - Weisz [2018] WASC 79.

162.

Ultimately Justice Hulme allowed the sperm to go into the possession of Ms Edwards. At [141] and following he considered the various discretionary matters which might be relevant. He noted his decision conflicted with that of O’Keefe J in MAW v Western Sydney Area Health Service [2000] NSWSC 358.

However, Justice Hulme was of the view that in those eleven years, Assisted Reproductive Technology had become further accepted and the Assisted Reproductive Technology Act 2007 (obviously not in force in 2000) demonstrated the attitude of public policy to such applications.

48 163.

The decision of Justice Fagan in Ping Yuan v Da Yong Chen [2015] NSWSC 932 conflicted with that of Justice O’Keefe in Maw.

164.

His Honour concluded there was no appropriate consent or jurisdiction to enable him to deal with an application to remove semen from a husband whose condition “was acute and life threatening” under the Assisted Reproductive Technology Act 2007 or the Human Tissue Act 1983, the latter requiring removal of “specified regenerative tissue”. His Honour used the Guardianship Act 1987 to establish jurisdiction for the giving of consent for a medical procedure in respect of a patient who was unable to give consent themselves.

The patient still being alive made the difference.

165.

In his reserved decision his Honour said he was not aware of the decision of O’Keefe J in Maw when he granted the orders which he did. Before deciding whether to allow use of the removed sperm his Honour sought the appointment of a contradictor and had the Court documents provided to the Attorney General and the Director General of the Department of Health. As with the other cases referred to, the Plaintiff was injuncted from using the semen until further order.

166.

His Honour made a declaration that Ms Edwards was entitled to possession of the sperm recovered from her late husband’s body.

167.

Very recently, Button J heard the urgent sperm retrieval application in Ex Parte Application of Mercedi Cooper [2018] NSWSC 766. The applicant made contact at 10.44 am and although the Court was able to be convened at 11.20 a.m., the “hearing” commenced at 12.15 pm. Because of the urgency of the situation his Honour made the orders first with the Associate “immediately thereafter informally emailed an unsealed copy” and then gave judgement.

168.

His Honour said “3. Ms Cooper suffered a loss yesterday. She is also unrepresented. My understanding and my ability to reflect on legal questions, it will be appreciated, has been incomplete. Although I did not insist Ms Cooper give evidence on oath, I impressed on her

49 the absolute necessity for her to be completely frank with me, and I have proceeded on the basis that she has been.”

169.

Referring to the removal procedure his Honour said, perhaps somewhat infelicitously “the ball is in the court of Ms Cooper to insure that everything in that regard is completely ship shape”. I presume “ship shape” is not a typographical error for “snip shape”. He continued -

170.

His Honour referred to the judgements of Maw, Gonzales, and Edwards referred to above and gave authority for the post mortem sperm retrieval by a qualified doctor and in the presence of police. There was an order restraining use of the sample until further order.

171.

It must be accepted courts have both the power to and will order, at least on an interlocutory basis, the removal of the sperm at short notice following death, see also Re H, AE (No 2) [2012] SASC 177, Bazley v Wesley Monash IVF Pty Limited [2010] QSC 118, Y v Austin Health [2005] VSC 427.

172.

Practitioners may find of assistance the checklist adopted by O’Keefe J in Maw v Western Sydney Area Health Service and his Honour’s introductory words.

“INTRODUCTION 1

Shortly after mid-day on Easter Sunday, 23 April, 2000, the solicitor for the plaintiff contacted the duty security officer at the Supreme Court and advised that he wished to contact the duty judge on behalf of the wife of a patient at Westmead Hospital in order to obtain an interim order for the taking of sperm from such patient The patient was reported to be in a coma and in imminent danger of dying. As duty judge I asked the security officer to obtain from the solicitor answers to the following questions: 1.

Name of patient.

2.

Occupation.

3.

Name of wife.

4.

Occupation of wife.

5.

Age of patient.

6.

Age of wife.

50 7.

Which hospital was involved.

8.

Duration of hospitalisation of the patient.

9.

Illness of the patient.

10.

Duration of such illness.

11.

Have the doctors been asked to act.

12.

If so, with what response.

13.

Any expression of wish by the patient.

14.

If so, in what form and when.

15.

Name of treating doctor.

16.

Name of hospital registrar.

17.

Cause of coma.

18.

How long in coma.

19.

Life expectancy.

20.

What evidence available as to life expectancy.

21.

Are there any possible succession/estate implications.

A little later, the following questions were added.

173.

22.

Date of marriage.

23.

Any children.

24.

If so, ages and sexes.

25.

Contact phone number of doctor at hospital.

3

The duty officer gave the emergency number to the plaintiff’s solicitor, who then contacted me and sought an interim order for the taking of sperm from the patient. I informed the solicitor for the plaintiff that the order sought could not be regarded as interim and that if he wished I would convene an emergency hearing to take evidence and attempt to make a determination in the matter before the patient died. The solicitor for the plaintiff indicated that he had instructions to take that course whereupon I gave leave to serve short notice of a summons returnable for 24 April, 2000.

Consequential orders were made in relation to service.

Interestingly, the Tasmanian Human Tissue Act specifically excludes (by section 5) spermatozoa from the section 3 (1) definition of “tissue”.

51 174.

Of passing relevance is the possibility that a child of the deceased may be born long after his death.

175.

176.

The Tasmanian Intestacy Act 2010, section 8, reads as follows “8.

Survivorship

(1)

A person will not be regarded as having survived an intestate unless (a) the person is born before the intestate’s death and survives the intestate by at least 30 days; or (b) the person is born after the intestate’s death after a period of gestation in the uterus that commenced before the intestate’s death and survives the intestate for at least 30 days after birth.

(2)

The rules stated in subsection (1) are not to be applied if, as a result of their application, the Intestate estate would pass to the state.

Prima facie, the term “children” refers to immediate descendants, that is, the biological offspring of the person in question whilst “issue” extends to descendants of every degree. The term “children” obviously includes both exnuptial and adopted children following legislative changes over the decades.

177.

In New South Wales children born under surrogacy agreements where parentage orders have been made are dealt with under the Surrogacy Act 2010 giving the Supreme Court power to make orders transferring legal parentage from birth parent or parents to the intended parent or parents under surrogacy arrangements - see sections 5, 18 and 39.

178.

“Children” also includes children born as a result of artificial insemination or in-vitro fertilisation - see Status of Children Act 1996 section 14 where the usual irrebutable presumptions were extended in 2008 to fertilisation procedures. The term includes a child of a deceased pursuant to a declaration of parentage made by the Supreme Court.

179.

In Estate of K (deceased), ex parte Public Trustee [1996] TASSC 24, Slicer J held a child born by way of implantation of an embryo produced through an

52 in-vitro fertilisation (IVF) procedure, implanted in the mother’s womb subsequent to the death of the father, was, upon birth, entitled to a right of inheritance in the father’s estate afforded by law.

180.

His Honour’s judgement demonstrated the legal fictions known to all probate lawyers. His Honour said “16. In Tasmania, The Status of Children Act 1974, Pt III provides for the presumption of parenthood as the result of fertilisation procedures.

The fact that the law permits a test not necessarily synonymous with medicine is evidenced by the Act, s5(1)(b), namely: “(b) where a child is born to a woman within 10 months after the marriage has been terminated by death or otherwise dissolved and she has not remarried before the birth of the child, the child shall, in the absence of evidence to the contrary, be presumed to be the child of the marriage.”

In 1994 the Parliament of Tasmania passed an amending Act No 42/1994 (yet to be proclaimed) extending that period to one of 44 weeks.

17. The Family Law Act 1975 (Cth), ss50 and 60B provides for a child born by an artificial conception procedure, which includes “the implantation of an embryo in the body of a woman”.

18. the status and rights of a foetus can be summarised as follows: - A foetus is not recognised, by the law, as a person in the full legal sense.

- The law has long recognised foetal rights contingent upon a legal personality being acquired upon its subsequent birth alive.

- A child, enventre sa mere, is not a human being. To be human a child must have quitted its mother in a living state.

- A child so born is by a legal fiction treated as having been living at an earlier point of time and if by being so treated the child would receive a benefit to which it would have been entitled if actually born at that earlier time.

19. If such be the case the answer to the first question asked by the Public Trustee, namely, whether the embryos are issue, is no. The answer would be the same if a successful implantation in the womb had been performed at the time the question was posed.

20. It is the second question which causes difficulty. Do the embryos become the children of the deceased upon their being born alive? Two issues arise from the question. The first is whether they were alive at the time of death, since the Administration and Probate Act, s46 refers to “children…living at the death of the intestate”. The Court is not concerned with any philosophical or biological question of what is life since the question relates solely to the status recognised by law and not to any moral, scientific or theological issue. The answer to the question

53 must be no. There was no human in existence at the time of the death of the deceased. the second issue is whether once born, the child or children are cloaked with the legal fiction and deemed to have been born as of the date of death? The question can be approached by assuming that a child born in the manner under consideration seeks to claim its inheritance. The child would have standing because it could claim that there existed a dispute with the executor over a right claimed by that child. As a matter of policy, should the law distinguish between a child, en ventre sa mere, and his or her sibling who was at the same time a frozen embryo? In circumstances where the father dies after coitus, but before the ovum has been fertilised, should that child be denied the right to be treated as en ventre sa mere? Should a right by way of application of a legal fiction be denied because medicine and technology have overtaken the circumstances existant in the 19th century when the legal fiction was applied?

21. The Status of Children Act 1974, s10A(2) provides that nothing in any provision of PtIII (which) deals with fertilisation procedures and consequences) “affects the vesting in possession or in interest of any property that occurred before the commencement of this Act.” The section neither affords nor detracts from any common law rights possessed by a child once born?...

28. The various commissions have recommended against the grant of inheritance rights because of practical difficulties. Those will remain even if recourse is permitted to testator family maintenance provisions.

This court is not required to pay regard to such practical difficulties. The rule of perpetuities does not arise since its application in Tasmania has no bearing on the Administration and Probate Act and, in any event, the case involves the post mortem pregnancy of the deceased’s widow, who is a life in being. The practical difficulties envisaged by the New South Wales Commission could be found in very few instances. (See The Parpalaux Case and Post Mortem Insemination (1984) 58 ALJ 627 at 629). No evidence was placed before the court relating to the protocols existant in the State concerning the length of storage of embryos. In its report of June 1985 the Tasmanian committee to investigate artificial conception and related matters recommended that “in the event of the death of a donor, any stored sperm of that donor must be discarded” (report recommendation 19 at 135) and that there be a limit of two children born as a result of donated embryos from the gameles of the same male and female donors and this limit to be reviewed at five yearly intervals (recommendation 41 at 137). If an estate has been distributed, then the ability to recover might be limited.

An executor could not, however, be held responsible for an occurrence unless he had knowledge. Examples of how an executor, administrator or trustee can be afforded protection is provided by the Status of Children Act 1974, s6 or in the giving of an undertaking by those entitled to a share of an interest (Bullas v Public Trustee (1981) 1 NSWLR 641).

29. If an invitro child, born posthumously, is at birth the biological child of the father and mother, irrespective of the date of implantation, and in all other respects (except time) identical to a child en ventre sa mere then the legal principles applicable to a child en ventre sa mere should

54 likewise be afforded to an invitro child. If a child en ventre sa mere is not regarded as living (in terms of law) but has a contingent interest dependent on birth, then in logic the same status should be afforded an embryo. That would be so whether or not two cells, four cells or a developed foetus was existant. In this case fertilization has occurred and, although in stasis, possesses a potential for live birth. If such be the case then it could be said to possess the same contingent rights as a sibling en ventre sa mere. The Court is concerned with contingent interest rather than the question of capacity or potential for life referred to by the New South Wales Law Reform Commission in its report Invirto Fertilisation Discussion Paper No.2 DP 15 of 1987 (at 108 - 113).

30. The conclusion can be tested by the assumption that a person born invitro but posthumous to his or her father seeks redress as to the existence of a right. The Status of Children Act 1974, s10(1) permits the making of a declaration of paternity “whether or not the father or the child or both of them are living or dead”. Section 10C(1) provides: “Where a married woman, with the consent of her husband, undergoes a fertilization procedure as a result of which she becomes pregnant, the husband shall, for the purposes of the law of the State, be treated as if he were the father of any child born as a result of pregnancy.”

While s10A(2) does not afford any new inheritance rights, a person born as a consequence of an invitro procedure has the same status as a sibling and could obtain a declaration to that effect. That status would accord with that of a child en ventre sa mere at the date of the death of the father.

CONCLUSION 31. That a child, being the product of his father’s semen and mother’s ovum, implanted in the mother’s womb subsequent to the death of his father is, upon birth, entitled to a right of inheritance afforded by law.”

181.

A contrary view was reached by Justice Young (at that time Chief Judge In Equity) in Nappar v Miller [2003] NSWSC 376. The case involved construction of a will (as distinct from any statute) which referred to a class of grandchildren “who shall survive me…” The deceased died in February 2000 and at the date of making her will would have known she had five grandchildren. Another was born a year after the will was made. Of relevance was the birth (pursuant to an IVF program) of two further grandchildren after the death of the deceased and the knowledge there were two frozen embryos still in existence. The simple question was whether the two children born well after the death of the deceased could benefit and, by the same logic, whether any children born from the frozen embryos could also share.

55

182.

Ironically, at an interlocutory stage, [2002] NSWSC 1122, his Honour had expressed the view (at [25]) the construction put by the plaintiff was “more likely to be the correct one”. Even first instance judges can change their mind in the same case.

183.

The authority of Knight v Knight (1912) 14CLR 86 is to the effect the words “survive me” ordinarily mean “outlive me” and refer to a person living contemporaneously with the deceased and then living after her. It was argued for the “postnataes” the words should have another meaning, namely, the relevant beneficiary should not predecease the testator.

184.

Lawyers with a difficult argument in a construction case may find comfort in the words of Rich J to which the Court was taken. The relevant extract is as follows “10. So far as authority is concerned, the high point of Mr Blake’s argument is Brennan v Permanent Trustee Company of NSW Ltd (1945) 73 CLR 404. In that case, Rich J said at 409: “No-one can doubt that according to the correct use of the English the word ‘survive’ imports life before and after the event survived. A man does not survive another unless he was born before the other’s death.

But the testator and his draftsman do not appear to have been masters of English…It is clear that, according to exact English usage the literal application of the word ‘survive’ would exclude after born nieces postnatae. …But courts of construction recognise that testators, in common with others, may misuse language. Indeed, we have here another instance of the perpetual conflict between the two ways of solving questions of interpretation. The one is to give effect to rules of grammar or of construction at the expense of what intuition tells us is the real meaning of the man who penned the instrument.

The other is to search the whole document and obtain as much light as possible from the circumstances and give effect to the intention you find disclosed notwithstanding grammar, philology, logic, and all the prima facie meanings that case law can supply.

14. In In re Stapleton [1969] SASR 115, 123 Bray CJ commented on Rich J’s use of the word “intuition” in Brennan’s case and said: ‘Intuition’ here, I think, means something more than guesswork and something considerably less than conviction.’”

185.

Notwithstanding some cases construed the word so as to include children born after the death of a testator, in the instant case Young CJ in Eq gave the word

56 its ordinary everyday meaning and the children born by the IVF process would be excluded.

186.

The Surrogacy Act 2010 (NSW) section 41 allows the legal personal representative of a deceased to sleep at night. It states “41

Liabilities of trustees and legal personal representatives in relation to children

(1)

If, before conveying, transferring or distributing any property among the persons appearing to be entitled to the property, a trustee or legal representative gives a claims notice and the time fixed by the notice has expired, the trustee or legal representative is not liable to any person:

(2)

(a)

who claims directly or indirectly an interest in the property by virtue of a parentage order, and

(b)

of whose claim the trustee or legal representative does not have notice at the time of the conveyance, transfer or distribution.

Nothing in this section prejudices the right of a person to follow property into the hands of a person, other than a bona fide purchaser for value, who has received it.

It’s not that I’m afraid to die. It’s just that I don’t want to be there when it happens - Woody Allen (1975)

187.

In Yearworth and ors v North Bristol NHS Trust [2009] EWCA Civ 37 the Supreme Court of Judicature, Court of Appeal including the Lord Chief Justice and the Master of the Rolls heard an appeal by the unsuccessful plaintiffs who had their case dismissed in the County Court.

188. The Chief Justice said “3. The appeals raise interesting questions about the application of common law principles to the ever-expanding frontiers of medical science. In particular they raise a novel question about the ability to sue in tort and/or in bailment in respect of damage to bodily substances, namely semen which the men had produced for their possible later use and which the Trust had promised meanwhile to freeze and to store.”

57

189.

The plaintiff appellants had been diagnosed with cancer and were to undergo chemotherapy. Each placed his semen with the defendant but one night the liquid nitrogen to maintain the viability of the semen fell below the required level, the semen thawed and the sperm perished irretrievably.

190.

The claim was described as follows “9.

No doubt the men were promptly told about the loss of their sperm. Their reaction to news of the loss lies at the heart of their claims.

Whether each received the news while undergoing a course of chemotherapy, or beforehand or afterwards, is unclear. They each argue that in any event it is patently foreseeable that, already in a vulnerable condition, each would be likely to suffer - to put it at is lowest - a severe adverse reaction to the news that, unless he was to recover his natural fertility, his chance of becoming a father, represented by the storage of his sperm, had been lost.”

191.

The trial judge dismissed the claim for damages. He held damage to the sperm did not constitute a personal injury and the sperm was not property of the men.

192.

The Appeal Judges invited the appellants to argue whether they had a cause of action in bailment. Ultimately this argument was successful. The Judges found this form of relief to be more relevant than a claim in tort or contract.

193.

The Appeal was upheld with regard to both tort and bailment, the sperm being held to be property of the men. The proceedings were remitted to the County Court to determine the entitlement for damages for psychiatric injury and or medical distress in bailment.

194.

Reference was made to the decision of the Ontario Court in Mason v Westside Cemeteries Limited (1996) 135 DLR (4th) 361 in which the plaintiff recovered a “nominal” C$1,000.00 for foreseeable mental distress resulting from the loss of urns by the funeral home which was treated as a gratuitous bailee.

58 195.

In Holdich v Lothian Health Board [2013] CSOH 197 Lord Stewart in the Outer House, Court of Session had to deal with a strike out/summary dismissal of a claim by a male who deposited his sperm (subsequently rendered unusable when the nitrogen levels dropped) with the defendant in advance of his treatment for testicular cancer which in time made him infertile. Damages were sought “for distress, depression and loss of the chance of fatherhood, as a consequence of the negligence of the defendant.

196.

In a long judgement his Lordship dealt with Scottish, English, Australian, French, Canadian, German and United States Authorities as well as much academic writing.

197.

His Honour’s reference to the British Columbia Supreme Court case of JCM v ANA [2012] BCSC 584 contains a salutatory lesson for family lawyers. At [49] his Honour said -

“The British Columbia Supreme Court case of JCM illustrates a situation in which, on the arguments presented, I can see no private law objection to treating stored sperm as property. the case is about a female same-sex couple who separated from a “spousal relationship” inadvertently omitting to include thirteen cryostored, anonymous-donor sperm straws in their separation agreement. The sperm has been a joint purchase, costing the parties approximately C$250 per straw. JCM and ANA had impregnated themselves with some of the sperm; and a child was born to each of them. JCM started a new spousal relationship with TL. TL wanted to have a child “with” JCM using the remaining sperm straws so that “their” child would be biologically related to “the children of JCM’s relationship with ANA”. ANA wanted to have the sperm straws destroyed. The Honourable Madam Justice Russell held that the sperm straws were property and ruled: “I find that the remaining 13 gametes should be divided between the parties. Assuming it is not possible, or that it is impractical, to divide one sperm straw in half, I award seven sperm straws to the claimant, J.C.M., and six sperm straws to the respondent, A.N.A..

J.C.M. will pay A.N.A. $125 for the extra one-half straw she is receiving. Should A.N.A. wish to sell her share of the gametes to J.C.M. that will be her prerogative. She may dispose of them as she wishes.”

The question is, if stored gametes have to be labelled in terms of traditional categories, where should the line - effectively the line of separation from the body - be drawn between persons and property?”

59

198.

Ultimately his Honour dismissed the defendant’s strike out/dismissal claim holding the claim of the plaintiff was one which could succeed in law.

199.

In the matter of JSB (a child) [2009] N2HC 2054 between the Ministry of Social Development as plaintiff and TS and SB as defendants heard by Heath J in the High Court of New Zealand the child’s mother had gone to gaol for six years having pleaded guilty to causing grievous bodily harm to JSB within weeks of his birth. In gaol she married JSB’s father SB. As a term of her parole she was forbidden from having contact with JSB.

200.

In August 2009 it was feared JSB, then aged 5, may die imminently. The child’s lawyer approached the Court for directions to resolve in advance a potential conflict between the biological parents and JSB’s paternal grandmother (HB) over what should become of his remains if he were to die. HB had been the family member who had had most contact with JSB during his lifetime although about two years earlier JSB had been removed from HB’s care due to concerns about her ability to care for him into the future. He remained in the care of foster parents.

201.

The court was concerned whether it had jurisdiction to appoint anyone as agent of the Court for the specific purpose of dealing with the child’s remains after his death. If there was no jurisdiction based on existing guardianship, did the Court have inherent jurisdiction, and if there was jurisdiction should the Court as a matter of discretion exercise it.

202.

At short notice the Court made orders and subsequently delivered reasons. The Court required the child’s lawyer to consult with the biological parents and the grandmother upon the death of the child to determine the method of disposal (burial or cremation), whether a service should be held, the location of any service, whether any person should be excluded from a service, whether anybody should be able to touch or see the body prior to its disposal and, where

60 the remains should be laid to rest. In the event of conflict, the lawyer for the child was to approach the Court promptly.

203.

His Honour held that on the death of a child, guardianship responsibilities end.

Dealing with the inherent jurisdiction his Honour said “[56] Viewed as a continuum, the inherent jurisdiction covers the very situation that has arisen in this case. Provided there is justification for the view that an order is required, while JSB is alive, to protect his best interests after death, I hold that the inherent jurisdiction can be used to make such an order. The fact that any order might deal with a topic at the intersection of the two relevant aspects of the inherent jurisdiction is, in my view, irrelevant. The continuum approach militates against a sharp distinction between different aspects for the Court’s jurisdiction. Power to make an order arises from a single source: the inherent jurisdiction.”

204.

It was inevitable in the 21st century someone would look to international norms.

His Honour continued “[60] Article 17 of the International Covenant on Civil and Political Rights is in similar terms to art 8 of the European Convention on Human Rights. Article 8 (“right to respect for … private and family life”) was considered by the European Court of Human Rights in Dodsbo v Sweden [2006] ECHR 38. The Court held: 20.

As to the legitimate aims, the Government observed that the principle of the sanctity of graves has a longstanding tradition and is founded on reverence for the deceased, common to all mankind and existing in most cultures. Thus, the strict approach taken by the law, and by the public authorities in its application, serves to prevent disorder and to protect morals in society at large. In addition, the Government submitted that this restrictive approach is also important in order to prevent conflicts arising amongst relatives on the subject. Moreover, cemeteries and burial places should not be regarded as temporary repositories for the deceased’s remains or ashes. In other words, it may be said that what it at stake is the right of the living to be assured that, after death, their remains will be treated with respect. Thus, in the present case, the interference also served to protect the right of others.

Similar sentiments were expressed by Cranston J, in Borrows v McManus [2008] EWHC 1387, at paragraphs 18 and 21.

[61] I emphasise the European Court of Human Rights’ observation that “what is at stake is the right of the living to be assured that, after death, their remains will be treated with respect”.”

61 205.

His Honour continued “[78] In Re LL [2005] NIQB 38, the Queen’s Bench Division of the High Court of Northern Ireland was concerned with a natural parent, in that position, seeking to have her child’s body returned to her rather than to a foster family in whose care he had been for some time. Commenting that an unequivocal parental right, in law, to bury a child could give rise to “surprising consequences’, Deeny J said: [23] … An abusive parent, newly released from prison, perhaps for the offence of cruelty to his own child, could march into the ward in which the child had dies and snatch the lifeless body from the grieving foster parents who have loved and cared for the child for a decade and, if the applicant succeeded, this parent could remove the body to a place of burial far away without any need to disclose the location to the Trust or the foster family who had loved the child and with whom the child had been living for many years. He would not be a public authority subject to the Convention or judicial review. I doubt very much if Parliament ever intended such an outcome ….”

206.

His Honour concluded as follows : “[79] If disposal of JSB’s remains is in issue after his death, care must be taken not to tar SB with the same brush as TS. His parental rights might need to be weighed distinctly from those of TS. He was not complicit in causing JSB’s injuries. Likewise, steps taken by TS to rehabilitate and the extent of any remorse for her actions will need to be brought to account.

[80] It is unnecessary to cite further authority. As I have said, the question of prior entitlement to bury or cremate and determine the way in which human remains will be disposed of must be determined after death, in light of circumstances prevailing at that time. It would be premature to make an order now, when it is unknown how long JSB will live or whether (through some tragic event) HB or JSB’s biological parents may predecease him. Further, (and importantly) I do not wish to rule out the possibility of reconciliation between paternal grandmother and the biological parents. Time may heal what are, currently, raw wounds.

[81] While I was prepared to make an order to create a mechanism to resolve any dispute promptly upon death, I determined, as a matter of discretion, not to make directions that would have the effect of predetermining arrangements to be followed on JSB’s death. Any conflict between family members about the way in which JSB’S remains ought to be dealt with after death must be resolved after death.

62 207.

In other words, it was premature to make a decision before the child’s death which would be affected by such events as may pass between the time of the hearing and the child’s death and which (premature) decision would fail to take into account such circumstances as would be relevant at the time of death.

208.

His Honour declined to make any orders beyond those referred to earlier.

Brave New World 209.

In JS v M and F [2016] EWHC 2859 (Fam) the applicant was a fourteen year old girl with a very limited life expectancy.

210.

His Honour summarised the case as follows “3.

The applicant is a 14-year-old girl, known in these proceedings as JS. Last year, she was diagnosed with a rare form of cancer and now she is a hospital inpatient. Unfortunately, active treatment came to an end in August. JS is now receiving palliative care and she knows that she will soon die. Her case has come before the court because of the novel issues it raises and, particularly, because JS’s parents are not in agreement about what is to happen after her death…

6.

Over recent months, JS has used the internet to investigate cryonics: the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future.

7.

The scientific theory underlying cryonics is speculative and controversial, and there is considerable debate about its ethical implications. On the other hand, cryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. Cryonics is cryopreservation taken to its extreme.

8.

Since the first cryonic preservation in the 1960s, the process has been performed on very few individuals, numbering in the low hundreds.

There are apparently two commercial organisations in the United States and one in Russia. The costs are high, or very high, depending on the level of research into the subject’s case that is promised. The most basic arrangement (which has been chosen here) simply involves the freezing of the body in perpetuity. Even that will cost in the region of £37,000, according to the evidence in this case – about ten times as much as an average funeral. Although JS’s family is not well-off, her maternal grandparents have raised the necessary funds.

63 9.

There is no doubt that JS has the capacity to bring this application. She is described by her experienced solicitor as a bright, intelligent young person who is able to articulate strongly held views on her current situation. Her social worker says that she has pursued her investigations with determination, even though a number of people have tried to dissuade her, and that she has not been coerced or steered by her family or anyone else.

10.

JS has written this: “I have been asked to explain why I want this unusual thing done. I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”

11.

Her mother supports JS in her wishes. Her father takes a different position, as I shall explain below.

12.

Cryonic preservation, whether or not it is scientifically valid, requires complex arrangements involving the participation of third parties. The body must be prepared within a very short time of death, ideally within minutes and at most within a few hours. Arrangements then have to be made for it to be transported by a registered funeral director to the premises in the United States where it is to be stored.

These bridging arrangements are offered in the UK for payment by a voluntary non-profit organisation of cryonics enthusiasts, who are not medically trained. Evidently, where the subject dies in hospital, the cooperation of the hospital is necessary if the body is to be prepared by the volunteers. This situation gives rise to serious legal and ethical issues for the hospital trust, which has to act within the law and has duties to its other patients and to its staff…

Enquiries have now been made of the United States authorities, who have confirmed that there is no prohibition on human remains being shipped to the US for cryonic preservation provided that the UK funeral director and the US commercial organisation are in communication to guarantee that local, state and federal requirements are complied with…

17.

20.

So, despite all the difficulties, there is no inevitable practical obstacle to JS’s body being transported to the United States for cryonic preservation.”

211.

His Honour well appreciated the difficult task he faced 23.

“It is no surprise that this application is the only one of its kind to

have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law. Faced with such a tragic combination of childhood illness and family conflict, the court must

64 remember that hard cases make bad law, and that natural sympathy does not alter the need for the application to be decided in accordance with established principle, or with principle correctly established…

30.

Lastly, I cannot emphasise enough what this case is not about. It is not about whether cryonic preservation has any scientific basis or whether it is right or wrong. The court is not approving or encouraging cryonics, still less ordering that JS’s body should be cryonically preserved.

31.

Nor is this case about whether JS’s wishes are sensible or not.

We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS’s position – what they must think.

32.

All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.”

212.

His Honour was of the view that whilst it was not appropriate for him to give directions concerning the disposal of the body the Court could resolve disagreements about who may make the arrangements. His Honour determined it would be appropriate to make injunctions limiting the manner in which the father could act not only whilst the child was alive but also following her death and could make a prospective order investing the mother with the sole right to apply for letters of administration after JAS died. The father had given an assurance to the Court he would not try to see the child during her lifetime against her will and his Honour was satisfied with that assurance. His Honour’s principle concern was resolving the dispute which would arise upon JAS’s death.

213.

Interestingly, after the hearing, the child requested a meeting with the judge who had decided her case. He visited her that evening in the presence of her mother and “had a good discussion”. The judge said he was “moved by the valiant way in which she was facing her predicament.” She died 10 days later.

65

214.

In Milenkovic v McConnell [2013] WASC 421, McKechnie J observed “This is a case about what should happen to the ashes of a person who died suddenly leaving a mother, a sister, a brother, a partner and a small child. I suspect it is also a case about hurt feelings, grief and bitterness but the law has no remedies for those.”

215.

The cases demonstrate lawyers must not only be lawyers but social workers, counsellors, and peacemakers. If the lawyers fail, then the Judge has no alternative but to step in and apply the law blunt or capricious as it may be.

Lindsay Ellison SC PS 1.

In the Law Society of New South Wales Journal, May 2018 there is a profile of a corporate lawyer. Referring to that lawyer it says he “has a biological eleven year old with his sister’s female partner, and his male partner has two daughters, aged seven and five with (the corporate lawyer’s) sister.”

In this age of blended families there must be room for a lecture entitled “The role of the blender in the blended family.”

2.

In this paper I have deliberately avoided dealing with legislation governing the role and powers of Coroner’s (the Coroners Act 1991, section 3 gives to the Coroner “control of the body” if it is a reportable death. I have also not concerned myself with legislation dealing with rights of burial and cremation vis a vis public cemeteries (see for instance Burial and Cremations Act 2002, section 23 (1) which gives an exclusive right of burial) and associated local government legislation. Nor have I sought to distinguish between rights associated with public cemeteries and cemeteries controlled by a local church.

Prior to buying a church in the forthcoming Tasmanian Church sell off, you should check the status of any associated burial ground.

66 3.

For those with an interest in United States statues and litigation dealing with human remains and genetic material see “Uprooting Succession”, Step Journal March 2018, page 53.