Carly White v Candice Williams [2019] NSWSC 437

Supreme Court New South Wales

Medium Neutral Citation: Carly White v Candice Williams [2019] NSWSC 437 Hearing dates: 8, 9, 10 April 2019 Decision date: 17 April 2019 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See paras [114] – [116] Catchwords: INTESTACY- burial rights- dispute between de facto spouse and mother- significance of Aboriginal cultural, spiritual and religious beliefs Legislation Cited: Interpretation Act 1987 (NSW) Public Health Regulations 2012 (NSW) Succession Act 2006 (NSW) Cases Cited: Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 Darcy v Duckett [2016] NSWSC 1756 Frith v Schubert (2014) SASR 247 In the Estate of Jones (deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458 Jones v Dodd (1999) 73 SASR 328 Reece v Little [2009] WASC 30 Smith v Tamworth City Council (1997) 41 NSWLR 680 State of South Australia v Smith (2014) 119 SASR 247 Texts Cited: n/a Category: Principal judgment Parties: Carly White (Plaintiff) Candice Williams (Defendant) Representation: Counsel: Ms P Lane (Plaintiff) Mr C Gregory (Defendant)

Solicitors: De Luca & Company, Lawyers (Plaintiff) No representation (Defendant) File Number(s): 2018/55322

Judgment

Background Facts

Procedural history 1. The Deceased, Patrick Norman Fisher, was an Aboriginal man born on 3 August 1986. He passed away on 7 February 2018 without a will. 2. The proceeding was commenced by urgent application to the Equity Duty Judge on Monday 18 February 2018. Carly White ('the Plaintiff') sought urgent orders that she be appointed the administrator of the estate of the Deceased and for orders entitling her to take possession of the body of the Deceased and to bury him at the La Perouse/Botany Cemetery, Sydney. The Plaintiff commenced proceedings after discovering that the Deceased's mother had asserted a status as senior next of kin and the coroner had released the Deceased's body to be buried at Cherbourg in Queensland. 3. The Plaintiff's application was opposed by Candice Williams ('the Defendant') who was the mother of the Deceased. She stated that she wished for the Deceased to be buried on country in Cherbourg. 4. On 23 February 2018 Justice Rein ordered that the body of the Deceased be released to the Plaintiff for burial at La Perouse/Botany Cemetery. His Honour made it clear that this was not to be considered a final decision. 5. These proceedings concern the question of what final orders should be made for the burial of the Deceased, even though the Deceased has already been buried. That is, there was little if any discussion about the law surrounding exhumation, specifically exhumation under Aboriginal law and custom. 6. Given that the Deceased has already been buried, the Plaintiff simply seeks a declaration that she is entitled as against the Defendant to bury the Deceased's body in Sydney. Although there is no formal application by the Defendant for corresponding relief in her favour if the Plaintiff is unsuccessful, the appropriate order would be a declaration to the effect that the Defendant is entitled to make an application for exhumation to the Secretary of the Department of Health pursuant to Reg 69 of the Public Health Regulations 2012 (NSW). 7. Although expedition for a final hearing was granted it took some time for the parties to prepare their evidence. The Court also appointed an independent Expert Dr Sally Babidge, Head of Discipline, Anthropology, School of Social Science, The University of Queensland, who provided a detailed report on the matter of Aboriginal burial customs in both Redfern and Cherbourg, in which she addressed numerous questions posed by the parties. In the end a very many witnesses were called by both parties. The legal practitioners appeared pro bono. The Court records it's gratitude for their generosity and professionalism.