Accoom v Pickering [2020] QSC 388 (2020) 6 QR 640

SUPREME COURT OF QUEENSLAND CITATION: Accoom v Pickering [2020] QSC 388 PARTIES: JENIFER ACCOOM (applicant) v NERISSA PICKERING (respondent) CHIEF EXECUTIVE, QUEENSLAND HEALTH (interested party) FILE NO/S: SC No 597 of 2020 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED EX TEMPORE ON: 7 December 2020 DELIVERED AT: Cairns HEARING DATE: 4 December 2020 JUDGE: Henry J ORDERS: 1. Pursuant to section 6 of the Succession Act 1981 (Qld) that the body of [the deceased], also known as [the deceased], be released to the applicant or the applicant’s nominated funeral service for the purpose of funeral and subsequent burial at Mareeba, Queensland. 2. The funeral expenses be paid by the applicant. 3. No order as to costs. CATCHWORDS: SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – DISPOSAL OF BODY – where the deceased, an Indigenous man, died age 28 – where the deceased’s mother and aunt disagree about whether the deceased should be buried at Mareeba or at Croydon – where the deceased’s mother contends for a burial at Mareeba – where the deceased’s aunt contends for a burial at Croydon – where there is a mix of custom related considerations producing no single clear result – where the deceased was born in Mareeba – where the deceased spent a considerable part of his adolescence and his adult life in Croydon – where the deceased’s mother would have priority to a grant of letters of administration – where Mareeba would be a more logistically convenient location for the deceased’s relatives who are not from Mareeba or Croydon to travel to – where the deceased’s mother has been personally targeted and assaulted for seeking -- 1 of 8 -- 2 the deceased’s burial at Mareeba – whether the body of the deceased should be released into the custody of the deceased’s mother or aunt for burial at Mareeba or Croydon Human Rights Act 2019 (Qld), s 28, s 48 Succession Act 1981 (Qld), s 6(1) Uniform Civil Procedure Rules 1999 (Qld), r 610 Doodeward v Spence (1908) 6 CLR 406, cited Frith v Schubert [2010] QSC 444, cited Johnson v George [2019] 1 Qd R 333; [2018] QSC 140, cited Jones v Dodd (1999) 73 SASR 328, considered Roma v Ketchup [2009] QSC 442, cited COUNSEL: M Walker for the applicant A Wrenn for the respondent S Gallagher for the interested party C Baker appeared on his own behalf SOLICITORS: Townsville Community Law for the applicant No appearance for the respondent Queensland Health for the interested party C Baker appeared on his own behalf HIS HONOUR: The family of a deceased Indigenous man disagree about where he should be buried. His mother wants him buried in Mareeba. His aunt wants him buried in Croydon. The disagreement aroused high emotions and could not be resolved by mediation. The making of a decision ordinarily made promptly in respectful privacy, 5 sadly falls to now be made in the public and adversarial arena of a courtroom over two months after the unexpected death of the deceased intestate at the tender age of 28. The sole application before me is by the deceased’s mother, Jennifer Accoom, seeking orders that: 10 “1. pursuant to section 6 of the Succession Act 1991 (Qld) the body of [the deceased] be released to the applicant for the purpose of a funeral and subsequent burial at Mareeba, Queensland; 2. the funeral expenses be paid by the applicant. 15 3. there be no order as to costs.” There is nothing in s 6, or any other sections of the Succession Act, providing for decision making as to burial. Section 6(1) provides: “Subject to this Act, the court has jurisdiction in every respect as 20 may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make 25 -- 2 of 8 -- 3 all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.” Section 6(1)’s relevance in the present context is its conferral of power to grant letters of administration and determine all matters relating to the administration. It does not 5 gain that relevance because of its empowerment in connection with estate property, there being no property in the body of a deceased person (subject to exceptions of no present relevance, see Doodeward v Spence (1908) 6 CLR 406). Rather, the relevant connection is with determining who should administer the estate. 10 It is relevant in that way because at common law the “usual rule” or “common starting point” is that the person entitled to administration is usually the person responsible for arranging the funeral and burial of the deceased – see, for example, Roma v Ketchup [2009] QSC 442; Frith v Schubert & Anor [2010] QSC 444; Johnson v George [2019] 1 Qd R 333. 15 Rule 610 Uniform Civil Procedure Rules identifies the descending order of priority of persons to whom the court may grant letters of administration. The deceased had no spouse, children or grandchildren, with the prima facie result under that provision that his parents have priority. 20 It is to be borne in mind, the present issue arises at a time before letters of administration have been sought or granted and that, in any event, r 610(3) reserves a discretion upon the court in granting letters to depart from the order of priority in r 610. That is, r 610(1) does not dictate an absolute entitlement upon the person with 25 the highest priority. However, on the materials before me it is likely a court would regard one or both of the deceased’s parents as entitled to letters of administration. The deceased’s mother is the applicant. His father Clancy appeared in the application but elected to make no submissions. As the active player of the two, the deceased’s mother is the person apparently entitled to letters of administration. It follows the 30 common law usual rule or starting point favours her application. However, as Perry J emphasised in Jones v Dodd (1999) 73 SASR 328 at 336, the common law principle “is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied”. 35 His Honour, with whom Millhouse and Nyland JJ agreed, also doubted that an approach based on entitlement to a grant was realistic where, as in that case, it appears unlikely any application for a grant of administration in intestacy will be made. His Honour reasoned at 336: “In my opinion, the proper approach in cases such as this is to 40 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 45 upon the question.” In the present case, the evidence is silent as to the prospect of an application for a grant being made. No argument was advanced upon the point. Argument ensued as if the common law starting point applied with the issue being whether other relevant 50 -- 3 of 8 -- 4 considerations should yield a different result. Unlike in Jones v Dodd, it cannot be concluded an application for letters of administration is unlikely and the determination of the matter is thus properly informed by the common law starting point. Nonetheless, that starting point is not determinative and it remains to consider whether 5 the individual circumstances of this case should yield a different end point. Those circumstances may reasonably include matters identified in the above quoted reasoning of Perry J, such as practical considerations, the sensitivities of those claiming a right to bury and any relevant religious, cultural or spiritual considerations. 10 It was uncontroversial in Queensland before the enactment of the Human Rights Act 2019 (Qld) that Aboriginal custom, including culture and spiritual beliefs, are a relevant consideration in a case like the present – see, for example, Johnson v George [2019] 1 Qd R 333. For that reason, this is not a case in which the provisions of the Human Rights Act, including s 28 “Cultural Rights – Aboriginal Peoples and Torres 15 Strait Islander Peoples” and s 48 “Interpretation”, produce a different approach than that already taken by this court. As will be seen, this is a case in which the protagonists, who are Aboriginal, each rely upon Aboriginal custom as supporting their conflicting views as to where the deceased 20 should be buried. If the outcome of Aboriginal custom in this case were clear cut and yielded a singular result, I would readily honour it. The reality is that there are a difficult mix of custom related considerations in play. The deceased was born to Jennifer Accoom and Clancy Baker on the 13 June 1992. 25 Jennifer and Clancy met in Mareeba where she was in high school. She had grown up in Woorabinda, Lockhart River and Mareeba. Clancy’s family appear to be at least predominantly from Croydon, though it appears to this day that Clancy remains a Mareeba resident. 30 After Jennifer fell pregnant to Clancy, she moved to Woorabinda where her mother’s family came from. After the deceased was born in nearby Rockhampton, Jennifer and Clancy lived together with him in Cairns. Then Jennifer and the deceased moved to Mareeba. Clancy would visit them and, I infer, also lived in the district. Then when the deceased was about two, he was removed by his paternal grandparents to Croydon. 35 Of this era, Jennifer deposes: “Clancy came home and told me that he had been told that his parents had taken off with [the deceased] and went back to Croydon with him. I made calls and tried to find a way to get [the deceased] home, 40 including by travelling to Croydon to find him, but I was unable to find him. At the time, it was considered a family matter and it was not seen as appropriate or suitable to approach the police or the courts for a decision to be made about a child. The Paternal Grandparents 45 said that they were putting in a claim to [the deceased] the Murri way and I felt that I could not do nothing about that. -- 4 of 8 -- 5 In Aboriginal culture, the first-born son of the family is considered to be a very significant part of the larger family group. It is common for grandparents to take on the care of the first-born grandson, but usually with the agreement of the child’s parents. I did not agree to this happening but also felt like I could not go 5 against the family or their wishes. I did not feel it was appropriate or suitable to bring police or courts into our private family business. [The deceased] lived with the Paternal Grandparents until they both passed away in or around 1999 when [the deceased] was 10 about seven (7) years old. Norman passed away first and Audrey passed away a short time later.” It appears Audrey moved to Mareeba with the deceased before she passed. The evidence is muddy as to the deceased’s then age, but it appears likely he was about 15 seven. The deceased thereafter lived with Norman’s sister, May Fraser. Jennifer would see the deceased regularly and maintained a relationship with him in this era, though he evidently lived with a variety of family members, including his father’s cousin, Kathy Harries. 20 The deceased lived and was raised and schooled in Mareeba from around seven years old. He, at times, but not predominantly lived with Jennifer and would sometimes holiday with her and her family. There came a time when the deceased moved within Mareeba and lived with Clancy’s cousin Kathy Harries in Mareeba, continuing at school in Mareeba and, for a time, at Woodleigh College, Herberton. 25 When he was around 16 (he seems not to have completed year 10) he moved to Croydon in pursuit of his love for rodeos. His aunt, Narissa Pickering, put it slightly different, stating: “[The deceased] left school at sixteen (16) years of age he stayed 30 in his hometown of Croydon, a place he loved. The reason [the deceased] stayed in Croydon was to be on country a place where he was raised as a Tagalaka, by his grandparents and to look for work.” 35 The deceased, in due course, became a rodeo commentator, travelling the state with rodeos. From that point forth, he resided, in the main, in Croydon and I accept he regarded it as his home in that era. I say in that era because he was but 28 when he died. Whether he would have remained there, treating it as his home base or not, is impossible to discern. 40 A deceased person’s intentions are, I accept, a relevant consideration in a case like the present. However, such evidence as there is of relevance to the deceased’s intention does not exceed the following statement by the respondent, Narissa Pickering: “[The deceased] wishes to be buried in Croydon near his paternal 45 grandparents who raised him from a very young age, I believe the best place for [the deceased] to be laid to rest and the place -- 5 of 8 -- 6 he would be happy with is in Croydon, as this was discussed in one of our many conversations.” What part of that is evidence of what the deceased said he wanted as distinct from what Narissa Pickering now wants is indiscernible. A significant quantity of the exhibits to 5 her affidavit appear to be premised on a belief in the unlikely proposition the deceased articulated a specific desire regarding his place of burial. I do not criticise those who articulated such a belief. They only spoke on the assumption they had been told what the deceased wanted, not what others wanted. 10 The deceased undoubtedly had strong cultural connections with Croydon and the Tagalaka. He was evidently regarded by the Tagalaka as one of them, “a Tagalaka man,” as Ms Jeanette Owens put it in her statement. But the deceased’s ties to the Tagalaka in Croydon were not his only connections. While his aunt Narissa emphasises of her generation’s paternal line, that it is tied or culturally connected to 15 Croydon, she also states: “My family’s cultural connection is to Croydon and Mareeba. My mother, Audrey Baker’s, tribe is Muluridgee in Mareeba. My father Norman Haye’s tribe is Tagalaka in Croydon.” 20 It is noteworthy the deceased’s father Clancy remains Mareeba based. Further to Clancy’s mixed connections to both Croydon and Mareeba, I note the deceased’s mother’s maternal line was from Woorabinda and her paternal line from Lockhart River. The common connection between both sides of the family is thus urged by Jennifer Accoom as being Mareeba. As she puts it, Mareeba is “neutral ground for all 25 the family and it is the one place that both sides of Walter’s family has ties to”. A number of relevant assertions about Aboriginal culture have been made in the materials before me but they trend in mixed directions. For instance, on the one hand, Narissa Pickering states: 30 “In Aboriginal culture, the role of the Elders/Grandparents is to guide those who have passed on to their spiritual journey.” On the other hand, Leanne Accoom Reid deposes: “As I am one of the older sisters in the family, I can speak to how 35 our family does sorry business and funerals. Jennifer, being [the deceased’s] mother, has the highest claim to burying [the deceased]. When a mother loses a child, generally, the rest of the family is to respect her wishes. 40 If Jennifer wanted to make a decision about what was to happen with [the deceased] we would have to respect that. It is culturally inappropriate for anyone else to overstep the wishes of a mother when they have lost their child.” 45 -- 6 of 8 -- 7 The upshot on the materials is that the burial of the deceased at Mareeba or Croydon would each appear to be consistent with some of the cultural considerations identified in the case. Practical considerations are relevant. Each of the proposed burial destinations are far 5 apart. Inevitably, some who could attend a funeral at one location will not be able to attend a funeral at the other. That said, Mareeba is the more practical destination as between it and Croydon. In the main, that is because it is a logistically less demanding destination for the deceased’s relatives from locales other than Mareeba and Croydon to travel to. 10 Another consideration urged upon me is that the applicant has been personally targeted in two ways for pressing for the deceased’s burial in Mareeba rather than Croydon. The first is that a number of statements exhibited to the affidavit of Narissa Pickering by persons supporting the burial occurring at Croydon make irrelevant but harsh 15 personal criticisms of the deceased’s mother. The vehement attitude of some who agitate for a Croydon burial may perhaps explain why the deceased’s father remained eloquently silent in this forum on the topic of where his son should be buried. The second aspect of targeting is that the deceased’s mother has been assaulted, 20 apparently in a reaction to her preference for wanting to bury her son in Mareeba. The assault followed a failed mediation on 5 October 2020. Jennifer Accoom deposes of it: “Following a family meeting at the church in Mareeba on 5 October 2020, I was verbally abused by Clancy’s niece, Brittany 25 Baker and Clancy’s sister, Regina Baker. Brittany is the daughter of Marella, who is Clancy’s younger sister. The next day, the abuse continued, and it ended up with me being assaulted by Clancy’s niece Yarrangul Yoren at the IGA in town on or about 6 October 2020 following a family meeting. Brittany 30 Baker pushed me over in this incident. Yurungel is also the daughter of Marella, who is Clancy’s younger sister. Yurungel Yoren and Brittany Baker have been charged with assault and were last before the Court on or about 2 November 2020. 35 I am concerned that if I have to travel to Croydon I will be in an area without family supports and protection as the funeral will be largely attended by Clancy’s family. A lot of my family would not be able to travel to Croydon given that it is more than a day’s travel from both Woorabinda and Lockhart River. 40 Even though I was assaulted in Mareeba last time, I will have all my family to rally and support me. It is likely if I travel to Croydon I would be travelling alone.” It is scarcely surprising Ms Accoom holds such safety concerns. While Ms Pickering’s 45 counsel submitted those concerns were ill founded, the tone of the personalised criticism of her in some of the statements exhibited to Narissa Pickering’s affidavit is less than reassuring. Ms Accoom’s safety concerns are certainly not a determinative -- 7 of 8 -- 8 consideration or as weighty as the other practical considerations I have mentioned, but they are not without relevance. I note finally that the costs of the funeral are a neutral consideration, for the deceased’s mother and aunt are each prepared to arrange the funding of the funeral. 5 As I observed in the course of argument on Friday, no decision I can make will please all. It is unfortunate the parties could not reach a private resolution and, sadly, it is inevitable that the decision I have been left to make will cause added pain to some at a time at which they are grieving. 10 In the end result, while Croydon has been the deceased’s home for significant parts of his life, his cultural connections with its lands were not, at least on such evidence as is before me, so exclusive or so compelling as to trump the mix of other considerations, including practical considerations and the common law starting point, trending in 15 favour of a burial at Mareeba. While the matter is relatively finely balanced, in my conclusion, the application should be granted. I note costs are not sought. 20 My orders, reflected in the amended draft order signed by me and placed with the papers are: 1. Pursuant to section 6 of the Succession Act 1981 (Qld) that the body of [the deceased], also known as [the deceased], be released to the applicant or the applicant’s nominated funeral service for the purpose of funeral and 25 subsequent burial at Mareeba, Queensland. 2. The funeral expenses be paid by the applicant. 3. No order as to costs. I direct that in the endorsement of the court file, the references in the order as just 30 quoted by me to “the deceased” insert the relevant name and alternate name that appear in the actual amended draft order which has been signed by me. -- 8 of 8 --