AB v CD [2007] NSWSC 1474

New South Wales Supreme Court

CITATION : AB v CD [2007] NSWSC 1474

HEARING DATE(S) : 13 December 2007

JUDGMENT DATE : 17 December 2007

JUDGMENT OF : Harrison J

DECISION : (1) ORDER that the plaintiff have the carriage of the funeral of M, the son of the plaintiff and the first defendant. (2) ORDER that the second defendant and the third defendant release M's remains to White Lady Funerals or to such other funeral service as the plaintiff may direct. (3) I make no order as to costs to the intent that all parties will pay respectively their own costs of these proceedings.

CATCHWORDS : APPLICATION FOR INJUNCTION TO RESTRAIN FUNERAL – executors and administrators – sudden death of 14 month old boy – suspicion arising from nature and extent of injuries causing death - police investigations into death not completed at time of hearing - burial – right to arrange funeral – dispute between parents of deceased boy – proposed locations for burial by mother (in Sydney) and by father (on Central Coast) likely to create practical inconvenience for those wishing to visit the grave – deceased living with mother all of his life – no cultural or religious considerations relevant

LEGISLATION CITED : Children and Young Person's (Care and Protection) Act 1998 Coroner's Act 1980

Burrows v Cramley [2002] WASC 47 Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446 Dow v Hoskins [2003] VSC 206 In re G (1946) 62 TLR 279 In the Estate of Crippen [1911] P 108 In the Estate of Jones (Deceased); Dodd v Jones [1999] SASC 458 CASES CITED : In the Goods of Ardern [1898] P 147 Jones v Dodd [1999] SASC 125 Joseph v Dunn [2007] WASC 238 Keller v Keller [2007] VSC 118 Leeburn v Derndorfer [2004] VSC 172; (2004) 14 VR 100 Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997, unreported) Privet v Vovk [2003] NSWSC 1038 Smith v Tamworth City Council (1997) 41 NSWLR 680