AB v CD [2007] NSWSC 1474

AB v CD [2007] NSWSC 1474

Both parents had equally ranking rights to seek administration and carriage of the funeral. In the absence of a distinguishing legal or factual factor, the matter was resolved on practicalities: the mother had the primary care of the child throughout his life and had already arranged a funeral, and the difficulties of access weighed more against her than the father or extended family. The evidence regarding the cause of death was not determinative; suspicions were to be left to the Coroner. Accordingly, the mother (plaintiff) was given carriage of the funeral arrangement.

Parties
Plaintiff: AB; First Defendant: CD; Second Defendant: Coroner's Court of New South Wales; Third Defendant: Carl Milovanovich, Deputy State Coroner
Jurisdiction
Australia
Judgment Date
17 December 2007
Procedural Posture
Application for Injunction to Restrain Funeral and Related Declaratory Relief / Interlocutory Judgment
Outcome
Plaintiff granted carriage of the funeral; defendants ordered to release child's remains to funeral service of plaintiff's choosing. No order as to costs.
Legal Topics
Funeral Arrangements, Right to Arrange Burial, Letters of Administration, Dispute Between Parents, Coroner's Role and Statutory Powers, Administrator's Entitlement, Practicalities in Burial Disputes
Succession Law Common Law Funeral Arrangements Right to Arrange Burial Letters of Administration Dispute Between Parents Coroner's Role and Statutory Powers Administrator's Entitlement +1 more

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Parties

AB

Plaintiff

CD

First Defendant

Coroner's Court of New South Wales

Second Defendant

Carl Milovanovich, Deputy State Coroner

Third Defendant

Procedural Posture

Application for Injunction to Restrain Funeral and Related Declaratory Relief / Interlocutory Judgment

Legal Issues

  1. 1 Which parent is entitled to arrange the funeral and burial of their deceased child in the event of dispute
  2. 2 Whether suspicions or circumstances surrounding the death are relevant to the entitlement to arrange burial
  3. 3 How practical factors and legal principles interact in determining funeral carriage where entitlements are equal

Ratio Decidendi

Both parents had equally ranking rights to seek administration and carriage of the funeral. In the absence of a distinguishing legal or factual factor, the matter was resolved on practicalities: the mother had the primary care of the child throughout his life and had already arranged a funeral, and the difficulties of access weighed more against her than the father or extended family. The evidence regarding the cause of death was not determinative; suspicions were to be left to the Coroner. Accordingly, the mother (plaintiff) was given carriage of the funeral arrangement.

Court Disposition

Plaintiff granted carriage of the funeral; defendants ordered to release child's remains to funeral service of plaintiff's choosing. No order as to costs.

Orders

  • The plaintiff have the carriage of the funeral of M, the son of the plaintiff and the first defendant.
  • The second defendant and the third defendant release M's remains to White Lady Funerals or to such other funeral service as the plaintiff may direct.