Ricky John Morris (the deceased) died on 5 November 2024 at the age of 37. He is survived by his wife, Kimberley Friday (the respondent), along with their four young children. Furthermore, he leaves behind his mother, Phyllis Taylor (the applicant), and his younger sister and extended family members. A dispute has arisen concerning who has the legal right to bury the deceased’s body, with the crux of the disagreement being where the burial should take place. This matter has been brought to Court and necessitates a swift resolution.
Doyle CJ in Dodd v Jones [1999] SASC 458; 205 LSJS 105 remarked:
“Unfortunately, the issue presented is, in some respects, fundamentally unsolvable. Evaluating the conflicting claims and arriving at what could be considered a legal verdict is impractical. I recognise and honour the wishes and beliefs of both parties involved. No resolution or compromise will satisfy everyone. I can only make a decision and express my regret that it will cause distress to the party that does not succeed.”
Background
The applicant seeks authority to possess and manage the deceased’s body for burial in Kempsey, New South Wales, and presents several cultural reasons to support her request. The respondent, the deceased’s spouse, would prefer to bury him in Townsville, where they have resided with their children for about seven years.
Since the deceased did not leave a Will at the time of his death, he did not specify a preference concerning the location of his burial in any legal documents. There are conflicting accounts from family members concerning oral expressions of the deceased’s wishes during his life —the applicant claims the burial should occur on Dunghutti country near Kempsey in New South Wales as the deceased had a profound spiritual and cultural connection to that area and is an appropriate burial site. The respondent submitted that the burial should occur in Townsville, where she and their children live.
Although the Far Northern Coroner exercised the authority to release the deceased’s body to the respondent under s26(3) of the Coroners Act 2003, the Queensland Supreme Court is not hearing an appeal concerning that decision. Similarly, the Coroner’s findings do not bind the Court. This case proceeds on the premise that the Supreme Court holds the authority to resolve the disagreement. The parties concur that part of the Queensland Supreme Court’s inherent jurisdiction encompasses the ability to determine the manner and location of a deceased’s burial. The Court’s power is discretionary. Despite the unfortunate nature of this request, many legal precedents exist to inform the Court’s investigation of the matter.
Burial
The Queensland Law Reform Commission released A Review of the Law in Relation to the Final Disposal of a Dead Body (R 69) in December 2011, evaluating the legal framework surrounding the final disposal of deceased bodies. This report, numbered 69 of the Queensland Law Reform Commission Reports, was favourably cited by Atkinson J in Laing v Laing [2014] QSC 194. Chapter 4 of the Report details the legal aspects surrounding the right to decide the method and location for the disposal of a deceased’s body; organising the handling of the deceased’s remains is the primary concern when a person passes away. Common law governs who has the authority to determine how and where to dispose of the body, assigning this responsibility to the executor of a deceased person’s Will.
Atkinson J recognised the soundness of the perspective that guides the current considerations. In the absence of a Will and, therefore, an executor, the Court’s starting assumption is that the individual entitled to seek letters of administration should have the right to possess the deceased’s body for disposal. Chapter 15 of the Uniform Civil Procedure Rules 1999, rule 610 provides the hierarchy for letters of administration in cases of intestacy.
In this instance, the respondent is the first person eligible for letters of administration due to intestacy. The rule does not distinguish between a spouse and a de facto spouse, as a de facto spouse is legally treated as a spouse for all relevant purposes under this rule.
The matter
However, as Treston J presented reasons in Taylor v Friday [2024] QSC 329 ex tempore, it was impossible to address the complete scope of all the facts. His Honour endeavoured to summarise them “as fairly as I can” [at 11]
The deceased, who grew up on Dunghutti land, encompassing areas around Kempsey, South West Rocks, Port Macquarie, and nearby regions, had a deep cultural connection to his ancestral land. He was one of three siblings. The applicant, who worked full-time as an administration officer at a local high school, is recognised as an Elder of the Dunghutti people and affirms that it is
‘of immense cultural importance to have Ricky buried on Dunghutti country.’
She argues that this act honours his heritage, respects his ancestors, and ensures his spirit has a rightful resting place within his people’s land.
The deceased attended South Kempsey Public School from kindergarten through year 2, continued his education at a primary school in Aldavilla, and completed high school at Melville High. He left school in year 11. The applicant states that during his teenage years, he learned the traditions and practices of his local Indigenous nation, had several traditional connections to the land, participated in local camps through Aboriginal studies while at Melville High School, and maintained a strong cultural and spiritual connection to the sites in the area where ancient remains date back more than 200 years. His family, spanning several generations, are buried on a property in the region with historic ties to sacred locations like the caves found on local properties. This deep connection to the land adds an emotional dimension to the case.
It appears the deceased met the respondent in the local area, although she originally hails from Townsville and does not share his connection to Dunghutti country. Despite spending most of his childhood in Kempsey, the deceased lived in Cairns with the respondent from 2009 to 2011. In 2011, they returned to Kempsey and remained there until 2017. In 2017, they relocated to Cairns and soon after moved to Townsville, where they have continued to reside. At an indeterminate date, likely around 2013, when the deceased’s second child was about one year old, a dispute arose between the applicant’s ex-partner and the deceased, leading to the deceased’s family moving out of their shared family home to settle into their residence in Kempsey, where they lived until approximately 2017.
Move to Far North Queensland
In 2017, shortly after the deceased’s 30th birthday, the family moved to Cairns with their then-two young children in search of better job opportunities. Unfortunately, things did not go as planned, marking the start of various mental health issues for the deceased. The applicant claims that the disagreement with her son had been resolved by mid-2016, around her sister’s 50th birthday. The applicant submitted that the deceased did not engage in cultural practices outside of Dunghutti country and that it is culturally inappropriate for a Dunghutti man to practice culture away from home unless authorised by Elders or traditional owners of the region where the practices occur. Nevertheless, the deceased remained committed to his cultural beliefs and would only engage in cultural practices on his land.
While the deceased and the respondent lived in Townsville for several years, they planned to return to Kempsey toward the end of their time there. They arranged for the children to enrol in local schools and made inquiries concerning housing and employment. Although the plan seemed well-structured, and the respondent provided evidence about it, they never followed through with the plan, and the deceased passed away in Townsville later that year. The respondent stated that the deceased changed his mind about returning to Kempsey. The deceased’s death is not the only tragedy to affect this family; one of his sisters, a year younger than the deceased, passed away about a year prior.
There is a consensus that the deceased and his sister, Casey, shared a profound closeness, and he was highly protective of her, cultivating a special bond between them. Numerous individuals in their affidavits highlight the strength of the deceased’s connection to the land and his desire to return to be close to his deceased sister’s family. Ms Eunoch, for instance, provided evidence of her close relationship with the deceased, having visited him and his family in 2022 while living in Townsville. Concerned about his well-being, she extended her visit to spend more time with him. Her affidavit notes his pride in showing her around Townsville, including taking her to his daughter’s touch football games. She encouraged him to consider relocating back to the Kempsey area, though she did not specify how he responded to her suggestion.
In August 2024, eight months after his younger sister’s passing, Ms Eunoch received a phone call from the respondent, who was also worried about the deceased. Ms Eunoch states that at that time, the deceased was waiting for a decision from his deceased sister’s partner concerning the potential transfer of a home in the area to him.
Connection to Kempsey
This evidence supports the claim that the deceased had a strong desire to return home, particularly for the benefit of his sister’s children. Mr Paul Morris, the deceased’s paternal uncle, and Ms Phyllis Mosely, his grandmother, have provided similar statements—an affidavit by Ms Lilian Mosely, his great-aunt. Ms Mosely and the applicant are Elders and knowledge holders of the Dunghutti people.
Their testimonies describe the depth of cultural and spiritual traditions passed down through generations in their community. They assert that for the Dunghutti people, the burial of loved ones on traditional land offers significant emotional and psychological comfort. Ms Lilian Mosely explains that connection to conventional land is fundamental to Aboriginal identity and heritage, nurtured over generations and essential to well-being. In her affidavit, she states that burial on ancestral land ensures spiritual reunification with both ancestors and the land, creating a sense of continuity and eternal presence within the community.
Several other individuals, including Mr Raymond French, a former sports teammate of the deceased, and Ms Trista Taylor, the deceased’s maternal first cousin, have provided similar evidence. Ms Taylor recounts discussions with the deceased in August 2024 about his intention to move back to Kempsey, emphasising his desire to support his late sister’s children. Affidavits have also been submitted by the deceased’s youngest sister, Jamie Lee Morris, who shared a close bond with him. She highlights his connection to Kempsey for his well-being and ties to family and country.
Connection to Townsville
Many of those who have provided evidence on behalf of the applicant have expressed their views on what the deceased would have wanted based on cultural traditions and ties. However, that perspective is only one part of the broader picture. The respondent, for instance, was born in Townsville, not Kempsey, and has no connection to the area or its community. There is no indication that she would regularly visit Kempsey in the future, particularly given the strain on her relationship with the deceased’s family caused by this dispute. Text messages between the respondent and certain family members at the time demonstrated significant animosity toward her.
While such messages likely stemmed from the family’s profound grief, they do not offer reassurance that the respondent would be welcome in Kempsey. Concerning her children, while the two eldest were born in Kempsey, the third was born in Cairns, and the youngest—an infant—was born in Townsville. Although two children have a birth connection to Kempsey, they were young when they left. The eldest, now 15, was around eight years old at the time of their departure. Her younger sister was even younger.
Although it is evident that the Morris family deeply loves these children, there is no compelling reason to conclude that any of them have a particular connection to Kempsey itself. In contrast, the children have strong ties to Townsville, where they have lived for seven years. The respondent has no intention of relocating from Townsville, where her family resides. It’s the burial place of the respondent’s grandfather, who is interred alongside her father’s proposed burial plot. Her brothers live in Townsville, and she remains close to them. She intends to bury the deceased in the same cemetery as her family.
According to the respondent, the deceased deliberately chose to leave Kempsey, partly due to conflicts with his family that had persisted for years. The respondent asserts that she actively encouraged him to reconcile with his family, particularly his mother and extended relatives. Nevertheless, the broader evidence suggests that the deceased trusted the respondent to make decisions in the best interests of their children, listed as the deceased’s next of kin on hospital and medical records. She also strongly advocated for his mental health support in recent years.
In August 2024, as the deceased’s mental health declined, the respondent urged him to visit his family in New South Wales to seek their support. While in Kempsey, the deceased sent the respondent messages expressing his longing for her and their children and his desire to return home. Although the respondent encouraged the deceased to stay in Kempsey to recover, he flew back to Cairns a few days later, where she picked him up from the airport. The respondent took the deceased to a doctor, helped him begin antidepressant treatment, and worked with him on a mental health plan. However, the deceased’s suicidal thoughts worsened, and he ultimately took his own life. The respondent states that the deceased frequently expressed to people in Townsville that he disliked Kempsey and had no desire to return.
The respondent claims the deceased did not want his burial in Kempsey. While there is evidence that he said, “I want to be with Casey,” his deceased sister, there could be different interpretations of the statement —not necessarily to be buried beside his sister, but possibly as an expression of his emotional distress and desire to be with her in death. Some witnesses support the respondent’s claim that the deceased was disinterested in returning to Kempsey.
Mr Patrick Kelly, a proud Dunghutti man who grew up in Kempsey and knew the deceased, provided an affidavit in which he recalled conversations with the deceased about their shared reluctance to return to Kempsey due to local issues with alcohol, drugs, gambling, and domestic violence.
Mr. Kelly’s testimony is significant. While he acknowledges that the deceased valued his Aboriginal heritage, he also recalls discussions reflecting Mr. Morris’s unwillingness to return to Kempsey.
The basis of the respondent’s decision to bury the deceased in Townsville is the ability of their children to visit their father’s grave, being essential for their healing and adjustment to life without him. Their father’s mental health struggles were traumatic for them; burying him far away would only add to their distress. Additionally, practical and financial constraints would make it difficult for them to visit his grave in New South Wales.
Additionally, the respondent has safety concerns about travelling to New South Wales due to harmful communications on social media and elsewhere, which have made her feel unwelcome. The respondent maintains that the deceased moved away from Kempsey to give their children a different upbringing and that there was never a firm plan to return. She fears that burying him in Kempsey will make it impossible for their children to process their grief fully.
In her affidavit, the respondent underscores her commitment to breaking cycles of trauma and mental illness, insisting that burying the deceased in Townsville, where their children can regularly visit, is in their best interest. The one point on which all evidence aligns is that the deceased deeply loved his children. It is reasonable to conclude that he would have wanted what was best for them.
The decision
In Roma v Ketchup [2009] QSC 442 Margaret Wilson J stated that
“The usual rule is the person entitled to letters of administration is responsible for the burial of the body.” at [10]
A similar approach was adopted by North J in Johnson v George [2019] 1 Qd R 333
Accoom v Pickering [2020] QSC 388 examined Aboriginal cultural and familial issues in a conflict between the deceased’s relatives who could not agree on burial. Henry J noted that, before the Human Rights Act 2019 (Qld), Aboriginal customs, culture and spiritual beliefs were pertinent in such matters. Section 28 recognises ‘the distinct cultural rights’ of Aboriginal and Torres Strait Islander Peoples, ensuring they have the rights:
‘to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings’.
The circumstances in Taylor v Friday [2024] QSC 329 differ, as the deceased had a long-term spouse and four young children. Prima facie, the spouse has priority; this is not absolute, as the Court must weigh cultural and spiritual considerations. However, when deciding the children’s best interests, it is difficult to argue that these factors should override the rights of the spouse and children.
Regardless of the outcome, Treston J accepts this decision will cause sorrow for one side. While the deceased’s extended family relies on Aboriginal customs and spiritual beliefs, the Court must balance these against the rights of the spouse and children. Had the respondent’s decision been arbitrary or unreasonable, the Court might wish to overturn it, but that is not the case here.
The respondent, the deceased, and their children built a life in Townsville over nearly seven years. The deceased was actively involved in the local football community, where he was honoured posthumously. His connection to Townsville was deep and lasting.
Considering all factors, the need for his children to have access to his grave outweighs the arguments for burial in New South Wales with his children would have little to no connection with his resting place. Moreover, the financial and logistical burden of travelling to Kempsey is significant.
While the deceased had a strong cultural and spiritual connection to his ancestral land, the Court dismissed the application and decided to favour the spouse in these circumstances—the parties did not seek an order for costs.