(Aboriginal and Torres Strait Islander people should be aware this article contains the name of a deceased person).
The Supreme Court has been asked to decide a dispute about the burial location for an indigenous man who died intestate.
When Ricky Morris took his own life in November last year, aged 37, he left behind a wife and four infant children in Townsville, and his mother and broader family in Kempsey, New South Wales.
Mother Phylis Taylor applied to the court for possession and control of her son’s body, citing he should be buried on Dunghutti country where he was raised, and to which she contended he had a deep spiritual and cultural connection.
Spouse Kimberley Friday contended he should be buried in Townsville where she and his children lived.
In her decision delivered ex tempore on December 20, and which was published on Monday, Justice Treston refused Mrs Taylor’s application after balancing common law principles, practical considerations, and indigenous cultural and spiritual factors.
“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,” she said
“…(A)lthough 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.
“Here, the person with the first priority to the letters of administration on intestacy is the deceased’s surviving spouse, Ms Friday.
“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.”
Justice Treston said “a very significant body of powerful material has been filed in support of this application”.
Mrs Taylor submitted it was “of immense cultural importance to have Ricky buried on Dunghutti country”.
“This act, she submits, respects his heritage, honours his ancestors and ensures his spirit finds a rightful resting place within his people’s lands,” Justice Treston said.
Evidence from Mrs Taylor, a Dunghutti Elder, included affidavits from relatives.
“Their evidence explains the breadth of the cultural and spiritual traditions that have been passed down through generations in their community. They have given evidence that for the Dunghutti people, knowing that their loved ones are buried on traditional land, provides immense emotional comfort. Knowing that one’s loved ones are buried on cultural land also provides psychological comfort,” Justice Treston said.
She said Mr Morris lived with Ms Friday in Cairns between 2009 and 2011, before returning to Kempsey. They lived there until 2017, when they moved to Cairns, then Townsville.
She said Ms Friday was born in Townsville, had no connection to Kempsey, and was unlikely to ever return regularly, especially given the deep animosity toward her shown by Mr Morris’s family.
“Of her children, whilst the oldest two were born in Kempsey, the third was born in Cairns, and the youngest, a child not even one year of age, was born in Townsville,” she said.
“Whilst two of the children therefore have some connection with Kempsey, having been born there, they were nevertheless quite small when they left.
“Whilst I have no doubt that those children are much loved by the broader Morris family there is no compelling reason to think that any one of those four children has a particular connection with the Kempsey region themselves.
“In contrast, the children all have a close and abiding connection to Townsville where they live and have lived for seven years. Ms Friday has no plans to move from Townsville. Her own family are there … She proposes, if allowed, to bury her own husband in the same plot where her family are buried.”
Justice Treston said there was little doubt Mr Morris had confidence in Ms Friday to do what was best for their children.
“As to her decision as to why she wishes to bury Mr Morris in Townsville, Ms Friday states that her decision is for her children. For their closure and their healing whilst they adjust to a life without their father.
“Her evidence is that her children were traumatised by their father’s declining mental health and she does not consider it fair to create more trauma and stress for them by disconnecting them from their father.
“She maintains that it will not be practical, logical or financially possible for the children to visit him if he is buried in New South Wales.”
Justice Treston lamented that whatever decision the court made, there would be heartache and despair.
“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,” she said.
“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…He (Ricky) had a close and abiding connection with Townsville.
“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 outweigh 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.
“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.”
No party asked for costs.
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