Noa Nayacakalou v Raeleen Vincent [2020] NSWSC 24

Noa Nayacakalou v Raeleen Vincent [2020] NSWSC 24

Although the parents had equal ranking at common law, the mother was granted carriage of the funeral and custody of the deceased's body because she was best suited to deal with the remains consistently with the deceased's identification as an Aboriginal man of the Galari Wiradjuri people. The Court accepted evidence that Galari Wiradjuri tradition is matriarchal and that the mother is culturally the head of the family responsible for death rites and rituals, gave weight to the mother's long role as sole parent for most of the deceased's life, accepted that cremation with burial of ashes on country could accord with Wiradjuri culture, and had some regard to evidence that the deceased...

Jurisdiction
Australia
Judgment Date
30 January 2020
Procedural Posture
Urgent Equity Application Concerning Burial Rights, Carriage of Funeral, Custody of the Deceased's Body and Disposal of Remains / Principal Judgment on Plaintiff's Summons and Defendant's Cross Claim
Outcome
The mother/cross-claimant was given custody of the deceased's remains and authority to carry out the funeral arrangements and dispose of the remains; the father's summons was dismissed; costs were to be borne by the parties themselves.
Legal Topics
['burial Rights' 'carriage of Funeral' "custody of Deceased's Body" 'disposal of Remains' 'cremation' 'aboriginal Cultural and Spiritual Considerations' 'equal Ranking of Parents at Common Law']
['succession' 'equity'] ['burial Rights' 'carriage of Funeral' "custody of Deceased's Body" 'disposal of Remains' 'cremation' 'aboriginal Cultural and Spiritual Considerations' 'equal Ranking of Parents at Common Law']

Case Brief

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Procedural Posture

Urgent Equity Application Concerning Burial Rights, Carriage of Funeral, Custody of the Deceased's Body and Disposal of Remains / Principal Judgment on Plaintiff's Summons and Defendant's Cross Claim

Legal Issues

  1. 1 ["As between the deceased's mother and father, who should have carriage of the funeral and full authority in respect of disposal of the deceased's remains." "Whether the deceased's remains should be buried or cremated." "How the deceased's identification as an Aboriginal man of Galari Wiradjuri culture, and other cultural, spiritual and practical considerations, should affect the exercise of the Court's jurisdiction."]

Ratio Decidendi

Although the parents had equal ranking at common law, the mother was granted carriage of the funeral and custody of the deceased's body because she was best suited to deal with the remains consistently with the deceased's identification as an Aboriginal man of the Galari Wiradjuri people. The Court accepted evidence that Galari Wiradjuri tradition is matriarchal and that the mother is culturally the head of the family responsible for death rites and rituals, gave weight to the mother's long role as sole parent for most of the deceased's life, accepted that cremation with burial of ashes on country could accord with Wiradjuri culture, and had some regard to evidence that the deceased...

Court Disposition

The mother/cross-claimant was given custody of the deceased's remains and authority to carry out the funeral arrangements and dispose of the remains; the father's summons was dismissed; costs were to be borne by the parties themselves.

Orders

  • ["The Trustee for Collier Trenerry Trust ACN 466 509 371 (trading as Collier Trenerry) be at liberty to release the remains of the deceased into the custody of the cross-claimant or otherwise as directed by the cross-claimant to enable the cross-claimant to carry out the funeral arrangements of the deceased which...