Child funeral arrangements fought over in Supreme Court

26-October-2011 Family Law Estates By Simone Green

When couples with children separate it can mean additional complexity over custody and shared parental responsibilities. Yet what if the child dies? Who decides who can arrange the funeral.

A NSW Supreme Court judgment resolved a very difficult situation in which the parents of a deceased 14-month-old baby were arguing about the organisation of the funeral and the burial site for their little child. Sadly, each year the Family Law Courts see a number of very serious disputes about the care of children. In this case, the child died as the result of a serious illness. After a coronial and post-mortem examination, each of the parents made separate arrangements for the child’s burial.

The mother made an urgent application to the Supreme Court seeking an injunction restraining the coroner from releasing the body of the child to the father. She also requested that only she have the carriage of the funeral arrangements.  The application was made at short notice by filing a Summons in the Supreme Court with supporting affidavits. Case Law provides that, as a general principle, the Executor named in the Will stands as the person responsible for the burial of the deceased.  In the absence of a Will, the next in order will be the person entitled to a grant of Administration.

Understandably, in this case, each of the parents had an equal entitlement to the administration of the funeral arrangements.

Therefore the principle extracted from previous cases was:
(a)    Where or two or more persons have an equal ranking privilege, the practicalities of burial without unreasonable delay will decide the issue;

Interestingly, in this case the Court, based on a practical and evidentiary basis, granted the mother’s request and appointed her to have conduct of these arrangements.  The proceedings were brought on an urgent basis on the Thursday and  the decision was made the following Monday.  Having regard to the nature of the dispute, the Court ordered that each party bear their own costs of the application.

A very difficult and sad end to a life cut tragically short.

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