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Frail v Shorey

Frail v Shorey

Case [2021] NSWSC 122 24 February 2021

Custody of Deceased's Body

Cultural Considerations

Burial Rights

Family Law

Indigenous Peoples & Native Title Law

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Supreme Court

New South Wales

Medium Neutral Citation: Frail v Shorey & Anor [2021] NSWSC 122
Hearing dates: 17 February 2021
Date of orders: 24 February 2021
Decision date: 24 February 2021
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See paras [144]-[146]

Catchwords:
SUCCESSION – burial rights – where mother and
father have equal ranking at common law – whether
mother or father should have carriage of the funeral and custody of the deceased's body – burial or cremation – Aboriginal religious, cultural and
spiritual considerations – mother granted relief sought.

Legislation Cited:
Family Law Act 1975 (Cth)
Motor Accident Injuries Act 2017 (NSW)

Cases Cited:
AB v CD [2007] NSWSC 1474
Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684
Darcy v Duckett [2016] NSWSC 1756
In Estate of Crippen [1911] P108
In the Estate of Jones (deceased); Dodd v Jones [1999] SASC 458
Joseph v Dunn [2007] WASC 238
Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701
Milson v Milson [2020] NSWSC 919
Nayacakalou v Vincent [2020] NSWSC 24
Re G (1946) 62 TLR 279
State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64
Smith v Tamworth City Council (1997) 41 NSWLR 680

Category: Principal judgment
Parties: Shayleen Maree Frail (applicant/plaintiff)
Joseph Shorey (first defendant)
Coroner’s Court of New South Wales (second defendant)
Representation:
Counsel:
B Jones (plaintiff)
M Anderson (defendant)
Solicitors:
Stacks Goudkamp (plaintiff)
Madden Solicitors (first defendant)
NSW Crown Solicitor (second defendant)

File Number(s): 2021/14726

Judgment

These proceedings arise as a result of the tragic death of two small boys on 5 January 2021 when hit by a car travelling at high speed in Warne Street, Wellington in rural New South Wales.
In addition to the two boys the car also collided with three other persons, including their mother, the Plaintiff in the proceedings, who was trapped between the vehicle and a fence and seriously injured. Two other children were also seriously injured.
The Plaintiff and the Defendant are the biological mother and father of the two boys concerned. They are no longer a couple and the dispute between them concerns who should have carriage of the funeral and burial arrangements for their sons.

Background Facts

The Plaintiff was born on 12 November 1986. She is a woman from the Ngemba tribe from the Brewarrina area of New South Wales.
The Defendant, although not indigenous by birth, was raised in Dubbo and Brewarrina by indigenous families and is accepted in the community as indigenous. He was born on 4 April 1977.
Although they had known each other for many years the Plaintiff and Defendant did not become a couple until about 2011. They lived together until about 2016 when they separated.
Their son Shane was born on 8 January 2013 and their son Sheldon was born on 12 February 2014. Both boys were born in Dubbo.
The Defendant has two other children with two different women, Mark born on 20 November 2011, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frail v Shorey

Details

AGLC: Frail v Shorey [2021] NSWSC 122
Case: [2021] NSWSC 122
Decision Date: 24 February 2021

CaseChat Overview and Summary

The case of Frail v Shorey involved a dispute between the daughter, Ms Frail, and the son, Mr Shorey, regarding the funeral and burial rights of their deceased mother, who was of Aboriginal descent. The matter was heard and determined in the Supreme Court of South Australia. The central issue before the court was whether the mother or father should have the primary responsibility for arranging the funeral and deciding the method of disposal of the deceased's body, taking into account Aboriginal religious, cultural and spiritual considerations.

The court was required to interpret the common law principles relating to the equal ranking of parents in matters of burial rights and to balance these with the specific cultural practices and beliefs of the Aboriginal community. This involved considering the traditional roles and responsibilities of mothers and fathers in Aboriginal funeral rites and the importance of these practices in maintaining the cultural and spiritual integrity of the deceased and their family.

The court held that while at common law both parents have equal standing, in the context of Aboriginal cultural practices, the mother traditionally holds a significant role in the burial and post-death rituals. Given the mother's request to handle the funeral and the deceased's body in accordance with Aboriginal customs, the court granted the relief sought by Ms Frail. The decision emphasised the importance of respecting and accommodating the specific cultural and spiritual needs of Aboriginal families in succession matters. The final orders of the court recognised Ms Frail's role in arranging the funeral and the burial of her mother in line with Aboriginal traditions.

Orders