Burial Rights & Indigenous Intestacy

Patrick Fisher died intestate in February 2018 aged 32; his father was Ross (Rossi), a Wakka Wakka man who came to Redfern from Cherbourg in about 1967. Patrick’s mother, Candice Williams, also grew up in Cherbourg although her family was from Woorabinda 500 kilometres from Cherbourg.

Patrick was raised in the Redfern/Waterloo area of Sydney, attended Redfern Public School and Cleveland Street High school; following his parents separation he was supported by members of the Redfern Aboriginal Community. When Patrick was about 14 Rossi died; according to his wishes, Rossi was buried in Cherbourg.

Patrick met Carly White, an Aboriginal woman from Sydney when they were both aged 16 and began a relationship shortly after. In February 2003, they moved into Carly’s mothers home in Waterloo. They had two children Ross and Tyrell.

Patrick suffered with addiction, spent periods of time in jail, and was involved with many women apart from Carly. Patrick fathered a child with another woman in 2010 and moved to Western Australia with another woman for about 18 months around 2011.

Candice as senior next of kin had the coroner release Patrick’s body to be buried on country at Cherbourg in Queensland. Carly sought urgent orders that she be appointed the administrator of Patrick’s estate and that the burial take place at the La Perouse/Botany Cemetery, Sydney. Candice opposed the application stating that she wished for Patrick to be buried on country in Cherbourg.

The Court made interim orders that the body be released to Carly for burial at La Perouse/Botany Cemetery. The subsequent proceedings concerned the question of what final orders should be made for the burial; as Patrick had already been buried Carly sought a declaration that she is entitled to bury the body in Sydney.

The Court was of the opinion that there is no inflexible rule that priority to apply for administration necessarily determines the question of the release of the remains and that the relevance of a de facto relationship was minimised to some extent by Part 4.4 of the Succession Act 2006 (dealing with indigenous intestacy); the fact that the deceased had no assets meant it was unlikely that an application for a grant of administration would be made.

The Court sought expert evidence with regard to the importance of the desire by many indigenous people to be buried ‘on country’ (that is on ancestral lands). However there are occasions where practical considerations have made this ‘ideal’ unattainable; further, there are particular cultural and spiritual practices raised in this case, including the importance of visiting and tending to the grave.

The Court must ultimately make an evaluative judgement, that includes the interests of the deceased’s children who should be accorded greater weight than the interests of the extended family due to the nature and closeness of the respective relationships (children as against extended family). After taking into account all the relevant factors, including any cultural and spiritual matters, and the specific factual circumstances of the case the Court concluded that Carly and her children were

‘the persons best able to deal with the Deceased’s remains consistent with his background..’

some of his wishes and the importance of the urban Aboriginal culture he was so deeply absorbed by.

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