Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 9 December 2017.

Penny and Charles have a child together, namely David and separate shortly thereafter.

David spends most of his youth with his grandparents.

Sadly, David is involved in an incident at the age of 17 and passes away.

 

Penny and Charles are David’s next-of-kin and a dispute arises between them regarding who the appropriate person is to make David’s funeral arrangements.

Charles wishes to have David’s remains cremated and the ashes divided between himself and Penny.

Penny wishes to have David’s body buried with her side of the family in New Zealand. She says that according to her beliefs as a Maori, the body must be kept intact and that cremation is forbidden.

The Supreme Court of New South Wales conducts an urgent hearing.

In the timeframe available, expert evidence regarding Maori culture is not available.

The court does however hear evidence from David’s relatives who state that although cremation is not the first preference, it is not necessarily taboo.

The court considers the cost of transferring David’s body back to New Zealand as also relevant.

A report by the New Zealand Commission is also considered, which states; “it is expected that the deceased will be buried in their ancestral lands… [but] in contemporary times, many Maori live outside of their tribal territories, and this can affect the … burial location and .. whether burial or cremation is chosen.”

The court hears evidence from David’s sister, that David never expressed a view regarding his burial place or method of burial.

The court notes that David’s mother and father have equal ranking in relation to his funeral arrangements.

The presiding judge states; “I have found this decision most difficult” but ultimately orders that David’s remains are to be the subject of a cremation and his ashes divided equally amongst Penny and Charles.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.