FEATURE ARTICLE -
Advocacy, Issue 99: March 2025
Such a dispute was recently considered by Treston J in Taylor v Friday [2024] QSC 329 (20 December 2024). The dispute there was between the deceased’s widow and the deceased’s mother respectively. Cultural and family considerations played a significant evidentiary role. Ultimately her Honour determined, on the facts, that the widow – who wished to bury the deceased in their place of residence, Townsville – was properly vested with the decision. Treston J wrote:
[1] Ricky John Morris died on 5 November 2024. He was aged 37 years. He is survived by his wife, Kimberley Friday, the respondent to these proceedings, and his four infant children. He is also survived by his mother, Phyllis Taylor, the applicant to these proceedings, his younger sister and broader family members. A dispute has arisen over who is entitled to bury the deceased’s body. This dispute centres around the location at which the body is to be buried. The matter was heard in Applications Court and it is necessary to be decided promptly.
[2] I can do no better at the outset than to adopt the wording of Doyle CJ in the matter of Jones v Dodd1 who said this:
Sadly, the problem before me is really insoluble 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. I understand and respect the wishes and beliefs of the plaintiff and of the defendant. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party.
[3] The applicant, Ms Taylor, brings the application that she be entitled to the possession and control of the deceased’s body for the purpose of burial at Kempsey in New South Wales. There are numerous cultural reasons relied upon in support of that application to which I will return. The respondent is the deceased’s spouse, who wishes to bury him in Townsville where he has resided with her and their children for the last approximately seven years.
[4] When Mr Morris died he did not leave a Will, and therefore his own wishes about where he wanted to be buried, are not contained in any testamentary document. There is some competing evidence from family members as to oral expressions of his wishes during his lifetime. At its core, the dispute centres around this — the deceased’s mother submits that the deceased should be buried on the country where he was raised as a child in New South Wales, Dunghutti country, which is near Kempsey. She contends that the deceased had a deep spiritual and cultural connection to that region and, for a variety of other reasons to which I will return, it is an appropriate place for him to be buried. His spouse contends that he ought to be buried in Townsville where she and his children reside.
[5] Although the Far Northern Coroner exercised a power to release the deceased’s body to his spouse, pursuant to s 26(3) of the Coroners Act 2003, this is not an appeal from the Coroner’s decision, nor is this court bound by the Coroner’s findings. The matter proceeds on the basis that the Supreme Court has jurisdiction to decide the dispute. The legal position in Queensland is this. Both parties proceed on the basis that it is well settled that part of the inherent jurisdiction of the Supreme Court is a power to direct where and how a person’s remains should be disposed of. That is a discretionary jurisdiction. Despite the unfortunate nature of this application there is in fact not a shortage of authority guiding my consideration of the legal issue.
[6] The Queensland Law Reform Commission issued a report reviewing the law in relation to the final disposal of dead bodies in December 2011.
[7] That report is number 69 of the Queensland Law Reform Commission Reports. It was referred to favourably by Atkinson J in a matter decided in 2014 of Laing v Laing.2 Chapter 4 of the Law Reform Commission Report sets out an overview of the law with regard to the right to decide the method and place of disposal of a deceased’s body. As was pointed out in that report, when a person dies, the first priority is to arrange for the disposal of the person’s body. The question of who has the right to determine the method and the place of the disposal of the body is governed by the common law, which provides that the executor of a deceased person’s Will has the duty to dispose of the body of the deceased and therefore has the right to possession of the deceased’s body for the purpose of such disposal.
[8] Atkinson J did not doubt the correctness of that approach. As a starting proposition it informs the consideration here. That is, although there is no Will and therefore no executor, the court starts with the proposition that the person who has the entitlement to a grant of letters of administration is the person with the right to the possession of the deceased’s body for the purpose of disposal. Pursuant to Ch 15 of the Uniform Civil Procedure Rules 1999 the priority for letters of administration on intestacy is contained in r 610. Here, the person with the first priority to the letters of administration on intestacy is the deceased’s surviving spouse, Ms Friday. The rule does not differentiate between a spouse and a de facto spouse, given that a de facto spouse, as a matter of law, is a spouse for all purposes and certainly for the purposes of this rule.
[9] The priority of the grant of letters of administration on intestacy was the approach adopted by Margaret Wilson J in Roma v Ketchup3 where there was a similar disagreement between parties about who should have a right to arrange for the burial of the deceased. Her Honour stated at paragraph 10 that “The usual rule is the person entitled to letters of administration is responsible for the burial of the body.” The same position was adopted by Henry J in Accoom v Pickering4 where his Honour restated the same starting point. That is, that the person entitled to the administration of the estate is the person responsible for arranging the funeral and the burial. A similar approach was adopted by North J in Johnson v George5.
[10] The starting proposition, however, is not determinative and it remains to be considered whether, in the particular circumstances of the case, a different result ought to obtain. Those circumstances might include practical considerations as well as relevant religious, cultural or spiritual considerations. A very significant body of powerful material has been filed in support of this application. I do not intend to do any disservice to the importance of the evidence by delivering these reasons ex tempore. But I do so because it is over six weeks since the deceased died. It is now a matter of days before Christmas. And the combination of those circumstances, in the context of a tragic death of a relatively young man and the father of young children, makes it necessary for the matter to be decided promptly.
…
[30] [Ms Friday] stresses in her affidavit that she is conscious to try to break the cycle of mental illness and trauma, and that her husband therefore needs to be laid to rest where his children are, for their wellbeing. Importantly she wants to be able to create a positive and regular connection for their children to visit their father when they are able, so that they are better able to process their grief and their loss. The one piece of evidence upon which everyone seems to agree is that Mr Morris treasured his children. It is not a leap to conclude that he would want for them what is broadly considered best for them.
[31] I have had particular regard to the decision of Henry J in Accoom v Pickering. That case was different of course because it arose in the context of a deceased person who did not have a spouse, children or grandchildren. The dispute was between a mother and an aunt who wanted him buried in different areas. The circumstances here are quite different. The deceased had a long-term spouse and four young children. It is the prima facie position that the spouse has priority. While I accept that that starting position is not determinative and that sensitivities such as religious, cultural and spiritual ones must be taken into account, it is a difficult argument to suggest that they ought to outweigh the prima facie right of the spouse and the children and to act in the best interests of those small children.
[32] Whatever decision this court makes there will be heartache and despair. Each side will consider that their claim is superior.
[33] Whilst the deceased’s family rely upon Aboriginal custom, heritage, culture and spirituality, those factors must be carefully balanced against the ones which favour the spouse and the children. Were Ms Friday’s decisions considered to be capricious or unreasonable the court might more readily set them aside. But that simply cannot be said of her. Ms Friday and Mr Morris lived in Townsville for nearly seven years. All of their children are at school there. They are settled in the community. Mr Morris was an active member of the local Townsville football club. Indeed, the football club named a trophy after him after his death. He is inducted into the hall of fame at the Townsville Brothers Rugby League Club. He had a close and abiding connection with Townsville.
[34] Those facts, coupled with the children’s need to stay connected to their deceased father by having ready access to where he is buried seems to me outweighs the submission for his burial to take place in New South Wales. To bury him there will inevitably mean that his children will have little or no connection to him. There is no ground for thinking that he would have supported such an approach. Furthermore, the practical costs of repeated travel to Kempsey to visit his grave would be a substantial financial burden for a family of five. The financial burden, coupled with the inconvenience of the travel, is too burdensome in all of the circumstances. His connection with Townsville was neither transient nor fleeting. His family was there, and he had a life there.
[35] In the circumstances, whilst I have no doubt that the deceased had a close and abiding connection to the country of his family, and in no way do I question the strong cultural and spiritual connections that he had, unfortunately a decision has to be made, and in these circumstances the decision favours the spouse deciding where Mr Morris is to be buried.
[36] In the circumstances, Mrs Taylor’s application is dismissed.
[37] No party asks for costs.
(emphasis added)
1 (1999) 205 LSJS 105; [1999] SASC 458 at [36]; cited by North J in Johnson v George [2019] 1 Qd R 333 at [30].
2 [2014] QSC 194.
3 [2009] QSC 442.
4 (2020) 6 QR 640.
5 [2019] 1 QdR 333.
The link to the full decision is here.
