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 1756In 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 24Re G (1946) 62 TLR 279
State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64Category: Principal judgment Parties: Shayleen Maree Frail (applicant/plaintiff)
Joseph Shorey (first defendant)
Coroner’s Court of New South Wales (second defendant)Representation: Counsel:
Solicitors:
B Jones (plaintiff)
M Anderson (defendant)
Stacks Goudkamp (plaintiff)
Madden Solicitors (first defendant)
NSW Crown Solicitor (second defendant)
File Number(s): 2021/14726
Judgment
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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.
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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.
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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
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The Plaintiff was born on 12 November 1986. She is a woman from the Ngemba tribe from the Brewarrina area of New South Wales.
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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.
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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.
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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.
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The Defendant has two other children with two different women, Mark born on 20 November 2011, and…
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- AGLC
- Frail v Shorey [2021] NSWSC 122
- Case
- [2021] NSWSC 122
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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