Burial fight put to rest
Judge rules on siblings’ five-month dispute
A BROTHER and sister have taken a dispute over where their Torres Strait Island-born mother should be buried to the Supreme Court.
Mother-of-six Daisy Ann Martin’s body has been held at a Brisbane funeral home for five months awaiting a court decision on her place of burial. She died on April 9.
Mrs Martin’s eldest son Charles Martin, the executor of her will, wanted his mother buried at Mount Gravatt Cemetery next to his father, her exhusband, as he said she wished.
But Mrs Martin’s eldest surviving daughter, Susan Hamilton, said she needed to take her mother’s embalmed body back to Saibai Island. Ms Hamilton said her Torres Strait family’s Umemere clan was of royal descent and her mother, born on Boigu Island, had been matriarch of the clan. She told the court that as eldest daughter she was in line to become matriarch once her mother was buried on her homeland.
She said only her mother’s siblings had the right to say where she should be buried.
While Ms Hamilton’s burial tradition claims were supported by another brother, Peter Martin, and her mother’s sister, her brothers Charles and Donald Martin disputed them.
Charles told the court his mother had been a committed Christian who had lived for almost 40 years in Brisbane, and had no desire to be buried in the Torres Strait. Donald said his mother had been a modern woman not confined by outdated tribal traditions.
Charles’s daughter, his mother’s primary carer for years, said her grandmother had told her she wanted to be buried next to her ex-husband.
Ms Hamilton claimed under the Torres Strait Islander Cultural Heritage Act, the ownership of her mother’s remains were protected and vested in the deceased’s siblings.
But after considering the Act, Justice Martin Burns disagreed. He dismissed Ms Hamilton’s application for an injunction restraining Mr Martin from disposing of their mother’s body. The judge said under common law, Charles, as executor, had a duty to dispose of the body and held right of possession of it.
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