The father of a teenager who died after an incident at a Newcastle swimming pool in October will be able to have his son cremated in Sydney, despite the mother wanting to bury him alongside his maternal Maori ancestors.
Lawyers for Te Rina Abraham and Steven Henry, who split soon after the birth of Pono in 2000, had argued in the NSW Supreme Court for his body to be released to their client rather than the other parent.
In a decision he described as "most difficult" and involving Maori cultural issues, Justice Stephen Rothman ruled in favour of the father who wanted a funeral then a cremation, with half the ashes going to the mother.
"Ultimately, the deceased had expressed no view, but his perceived views are, in the circumstances, probably less important than the views of those around him and who will and do mourn his loss," Justice Rothman's written judgment said.
"The circumstances are tragic. The court is not King Solomon. Whatever happens, one or other party will be disadvantaged."
Pono, who suffered brain damage in a road accident in 2013, died after an incident at the Lambton Pool in Newcastle in October.
The 17-year-old lived in Newcastle while his mother now lives in New Zealand and his father is in Queensland.
Ms Abraham is strongly opposed to her son being cremated for cultural reasons and fought to have him buried in NZ alongside his maternal ancestors.
According to evidence called on her behalf, a body should be buried to return the person to the earth from which they came under Maori cultural rules.
Cremation is forbidden and every part of a body is to be kept intact.
However, a Maori woman who was one of the father's witnesses said she'd never heard of cremation being taboo.
She said that while burial was traditionally preferred in Maori culture, there had been a shift in practices and it was not uncommon to cremate a body.
Mr Henry sought a traditional Maori service in Sydney before his son was cremated, with half of the ashes then going to Ms Abraham.
Justice Rothman in his judgment said the father's course was preferable for the majority of close relatives.
Cremations have occurred even in NZ and in funerals performed in Maori culture, the judge said.
He issued orders which he said would allow a Maori cultural burial service in Australia while giving each of the important relatives the capacity to have ashes at ancestral or other burial locations.
