NTCAT rules in favour of foster over biological mother in burial dispute over 15-year-old girl

Two mums – one biological, the other foster – have gone to the Territory’s tribunal to determine who gets to decide how to bury their 15-year-old daughter, with the tribunal’s decision only favouring one.

Northern Territory Civil and Administrative Tribunal, Westpoint Building, Alice Springs. Picture: Gera Kazakov

A Northern Territory tribunal has decided a foster mother should be able to cremate her foster daughter over her biological mother’s wishes to bury her “on her father’s country”.

The decision was delivered by Northern Territory Civil and Administrative Tribunal President Mark O’Reilly, who was tasked with settling a dispute on how to lay Kumanjayi Club to rest.

Kumanjayi was 15-years-old at the time of her death in February 2024.

Kumanjayi’s biological mother wants to have her buried “on her father’s country,” however, the girl’s foster parents want the girl cremated.

Cremation now seems the most likely, after Mr O’Reilly sided with the foster parents in his decision, delivered on December 27.

Northern Territory Civil and Administrative Tribunal President Mark O’Reilly.

He ruled out the biological mother had a “strong connection” with her daughter, but also determined all three parties “were all parents” of Kumanjayi.

Mr O’Reilly determined the foster parents’ “constancy and closeness” to Kumanjayi up to her death meant he recognised them as the senior next of kin.

The Tribunal heard how in 2011, the biological mother, along with Kumanjayi’s biological father, signed a “parenting plan” with the foster parents.

The agreement said Kumanjayi would live with the foster parents in Tennant Creek, where the couple were living at the time before moving to WA, Mr O’Reilly said in his decision.

The biological mother would drop Kumanjayi off at the couple’s house to “look after her” and help “grow her up”, the Tribunal heard.

“It is not necessary for me to try to identify with any degree of detail the reasons those care arrangements came to be,” Mr O’Reilly said in his decision.

Tennant Creek, Northern Territory. Picture: Alex Treacy

Mr O’Reilly was tasked with deciding who was the “senior next of kin” and “decision maker” for Kumanjayi under the Burial and Cremations Act 2022.

The “area of contention” was if Kumanjayi maintained “strong cultural and traditional ties to a community or group,” Mr O’Reilly’s decision said.

“The Act requires that criterion to be established and the onus of proof lies with the party (Ms Ladd) seeking to establish it,” Mr O’Reilly’s decision said.

He did not dispute the biological mother “would be an appropriate person culturally to perform a role as senior next of kin”.

However, in his decision, Mr O’Reilly said “I do not think” the biological mother’s evidence established Kumanjayi “had strong cultural and traditional ties to a community or group”.

“The evidence establishes that Kumunjayi had some interest in and occasionally used some Alyawarre words, and that she maintained contact with members of her family,” his decision states.

“It indicates that she recognised her own Aboriginality and retained a connection particularly to her biological mother. The evidence does not speak of any particular or strong connection to cultural beliefs or traditional practices.”

The matter was heard in a closed hearing in Alice Springs on December 18.

The biological mother was represented by Lyma Nguyen and Alyson Penny, while John Stirk represented the foster parents at the hearing.

Mr O’Reilly stayed the order until February 6 to allow time for an appeal to be filed.

Originally published as NTCAT rules in favour of foster over biological mother in burial dispute over 15-year-old girl