Editors --- "Dow v Hoskins - Case Summary" [2003] AUIndigLawRpr 22; (2003) 8(2) Australian Indigenous Law Reporter 37

• Dow V Hoskins
• Facts:
• Held:
• Case Extract:
• Cummins J:

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Court and Tribunal Decisions - Australia

Dow v Hoskins

Supreme Court of Victoria (Cummins J)

10 June 2003

[2003] VSC 206

Intestacy — right to conduct burial — all parties Aboriginal — domestic partner — claim of siblings of deceased — administrator test prima facie test — significance of cultural considerations

Facts:

The deceased was an Aboriginal man who died intestate with no substantial assets on 27 April 2003 aged 30. He had moved to Victoria 10 years before. He had an ongoing relationship with the plaintiff Dow, who was also Aboriginal, for some five years. They had two children together. The deceased had difficulties with alcohol and this created problems in the relationship. At the time of the deceased’s death they were not living together, although there was evidence that they were working towards continuing their life together. The deceased had had a very close relationship with his father until the father’s death when he was about 19 years old.

The plaintiff sought directions that she bears responsibility for disposing of the deceased’s body. She wished him to be buried in a place near where his mother was buried where she and the children could visit the grave. She argued that she was his ‘domestic partner’ pursuant to the Administration and Probate Act 1958 (Vic). The defendant Hoskins (sibling of the deceased) by cross summons sought similar directions and argued that it was required by Aboriginal culture that the deceased be buried in his father’s country at Wallaga Lake, where the deceased had returned twice a year for men’s business even when he was not living in the area.

Held:

1. Dow should be given priority as the mother of the deceased’s two youngest children [47].

2. As parent of the deceased’s two children she satisfied s 3(1)(b)(ii) of the Administration and Probate Act 1958 (Vic) [31].

3. The determination of whether a person was ‘living with’ the deceased pursuant to the Act should not be construed on narrow, formal, pedantic or merely geographical grounds but should take into account the human reality of the personal, emotional and cultural complex. The cases in this area are necessarily determined on their facts. Hibbertson v George (1989) 12 Fam LR 725 distinguished [32]–[33].

4. There was a continuance of the relationship between Dow and the deceased so that she was his domestic partner, because there was a continuing intention of the parties to resolve their differences, and the separation was designed to fulfill their continuing intention to live together [34].

5. It was highly probable that the plaintiff would be appointed administrator if she applied. Brown v Tullock [1992] NTSC 17; (1992) 106 FLR 446 applied [36].

6. The test to be used is the test of whether the person would be likely to be appointed administrator if she applied, but this is a prima facie test and not to be used to the exclusion of cultural or other factors which arise on the evidence. It is important to approach the common law authorities keeping in mind that the statutory regimes for intestacy are all based on a non-Aboriginal view of family and kinship which creates a serious mismatch between the legislative scheme and Aboriginal cultural expectations. Meier v Bell (3 March 1997, Ashley J) not followed; Smith v Tamworth City Council (1997) 41 NSWLR 680 followed [43]–[46].

Case extract:

Cummins J:

...

32. In my view the determination of whether the plaintiff was living with the deceased, as contemplated by the law as I have recited in its statutory form, should not be construed on narrow, formal, pedantic or merely geographical criteria but should be considered taking into account the human reality of the personal, emotional and cultural complex. I approach the matter in that broader context. I have considered a number of domestic partner cases: Hibbertson v George,^[1] Brown v Tullock,^[2] Calma v Sesar,^[3] Burnes v Richards,^[4] Boothman, ex parte Trigg,^[5] Jones v Dodd^[6] and Sullivan v Public Trustee for NT.^[7] Such cases are necessarily determined on their facts. The subsisting principle which emerges from them is that the determining factors are the length and circumstances of the relationship in each case.

...

The other matter of primary importance is the cultural significance as deposed by Ms Hoskins and Mr Foster, of the country of the deceased, being Wallaga Lake, and of the important consideration that in the relevant Aboriginal culture that is the place where the deceased should find his final rest, beside his father to whom he was devoted.

The plaintiff, in that regard, relies upon a decision of Ashley J in Meier v Bell. In that case, as is evident from the penultimate paragraph of the judgment, His Honour ultimately rested his decision upon the acceptance of the second submission of that plaintiff, namely that she was the custodial parent of the child of the deceased. His Honour regarded that as a conclusive matter. At that time the 2001 statutory amendment with the cumulative criterion that I have stated was not in operation. His Honour, however, concluded his judgment with this observation (pp 11–12):

In the event, I should direct that the plaintiff bears the responsibility for the disposing of the body of the deceased and to that end for making funeral and burial arrangements in her sole discretion. In so resolving the matter I emphasise that its resolution involves no rejection of the aboriginal cultural values asserted and relied upon by the defendant. The existence, or otherwise, of those values, as would be the case with any other religious or cultural considerations, has simply been beside the point.

40. Justice Ashley earlier had reviewed relevant authority and concluded (p 7):

In the context of persons who have died intestate, the approach has been to identify as best as is possible the person who is a potential administrator, and to treat that person in the same way as if he or she had been appointed executor; that is, so that the decision of that person as to place of burial prevails.

His Honour emphasised that in applications such as the present, where there is limited capacity to investigate the competing claims (often held with much emotion and comprehending substantial periods of time), it is better to adopt a practical test for resolution of such issues. The value of a general criterion as stated by Ashley J was emphasised by Pullin J in Burrows v Cramley.^[8]

41. However, Ashley J went on (p 9): ‘[t]here cannot be departure from principle in order to accommodate particular factual disputation, whether it be founded on matters religious, cultural, or of some other description’.

Martin J in Calma v Sesar^[9] likewise held that a practical and legal solution to such claims must be found and said ‘[t]hat solution will not embrace the resolution of possibly competing spiritual or cultural values’.

42. Justice Ashley’s analysis in Meier v Bell cited in the preceding paragraph was the subject of consideration in Jones v Dodd.^[10] In that case Perry J (with whom Millhouse and Nyland JJ agreed) said that in intestacy cases where because of the lack of assets of the deceased it is in fact unlikely that there would ever be an application for a grant of administration (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 upon the question.

Perry J also said that in intestacy cases where because of the lack of assets of the deceased it is unlikely that there would ever be an application for a grant of administration, the administrator test ‘takes on an air of unreality’ (p 336).

43. I do not consider that the test in such cases takes on an air of unreality. I consider that, for the reasons stated by Ashley J in Meier v Bell, the test is a sensible, practical prima facie test. However the true view, I consider, is that it is only a prima facie test. With every respect, I cannot agree with Ashley J that cultural matters ought be disregarded. In that respect I agree with Perry J. I consider that 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.

44. In Sullivan v Public Trustee for Northern Territory,^[11] Gallop AJ reviewed the considerations applicable and emphasised the significance of cultural matters in a case in which there was, of course, the Public Trustee acting, as the name of the case indicates.

45. Over the weekend I had the opportunity of considering some extra judicial statements, in particular ‘Rights to Mortuary Rites’ by Dr John Avery,^[12] ‘Wills as Shields and Spears’ by Ms Prue Vines,^[13] and ‘Resting in Peace’ by Ms Prue Vines.^[14] The latter article is primarily in relation to burial sites and archaeological considerations and the wills article was, as the name would indicate, primarily in relation to wills, but I found those articles of general background assistance as to the importance of aboriginal custom. In particular, I agree with Ms Vines who at the commencement of the wills article in its extract states:

The majority of Aboriginal people in Australia die intestate – that is without leaving a valid will. All Australian jurisdictions have legislation which determines who will take a benefit if there is no will (intestacy legislation). However, the statutory regimes for intestacy are all based on a non-Aboriginal view of family and kinship. This creates a serious mismatch between the legislative scheme and Aboriginal cultural expectations.

I approach the common law authorities with those considerations in mind.

46. The relevant common law principles, helpfully summarised by Young J in Smith v Tamworth City Council,^[15] are: there is no property in a dead body; if a person is named an executor that person has the right of burial; a person does not have the right to dictate what will happen to his or her body; 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; where no executor is named, the person with the highest right to take out administration will have the same privilege as an executor; the right of the surviving domestic partner will be preferred to the right of children; and where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

47. Having reviewed relevant authority, I consider that priority ought be given to the situation of the plaintiff, Ms Dow. She is the mother of the two younger children of the deceased and she and the deceased were seeking to secure their future as a family. I have given close and continuing consideration to the significant cultural matters deposed to by Ms Hoskins and Mr Foster. Having reviewed the relevant authorities, I consider that given the fact that the mother of the two children is the plaintiff, in the circumstances I have reviewed, she ought be granted the relief she seeks.

48. Accordingly, I propose to grant the directions and orders sought by Ms Dow on the motion and summons and to dismiss the orders sought by Ms Hoskins on her summons.

...

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^[1] (1989) 12 FamLR 725.

^[2] 7 BPR 15101 (18 November 1992).

^[3] [1992] NTSC 17; (1992) 106 FLR 446.

^[4] [1993] SCNSW (6 October 1993).

^[5] [1999] SCWA (Owen J, 27 January 1999).

^[6] [1999] SASC 125; (1999) 73 SASR 328.

^[7] [2002] NTSC 107 (Gallop AJ, 24 July 2002). See generally, Carolyn Spark, ‘When is a spouse not a spouse?’ (2002) Law Institute Journal 61 and A Dickey, ‘Defacto relationships and cohabitation’ (2002) 74 Australian Law Journal 360.

^[8] (2002) WASC 47.

^[9] [1992] NTSC 17; (1992) 106 FLR 446, 452.

^[10] [1999] SASC 125; (1999) 73 SASR 328.

^[11] [2002] NTSC 107 (Gallop AJ, 24 July 2002).

^[12] January 2002 Indigenous Law Bulletin 15.

^[13] November 2001 Indigenous Law Bulletin 16.

^[14] [1998] SydLawRw 3; (1998) 20 Sydney Law Review 78.

^[15] (1997) 41 New South Wales Law Review 680, 693–4.