Marschall v Elson

Case [2023] SASCA 1

Supreme Court of South Australia

(Court of Appeal: Civil)

MARSCHALL v ELSON

[2023] SASCA 1

Judgment of the Court of Appeal  

(The Honourable President Livesey and the Honourable Justice Lovell)

12 January 2023

HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES

By an originating application dated 5 January 2023, the appellants urgently sought the grant of letters of administration over the estate of their son, who died intestate.  At the hearing before the primary judge the central issue concerned the funeral and cremation arrangements made by the respondent.

The respondent is or was the domestic partner of the deceased and the mother of two of his three infant children.  The appellants maintained that cremation was contrary to the deceased’s religious views and wishes which favoured burial.

The appellants’ application was effectively for injunctive relief.  This was dismissed and the primary judge gave reasons ex tempore, emphasising that the respondent had “priority in obtaining letters of administration”.  The allegations regarding the deceased’s religious views and wishes did not appear to have been addressed.

The respondent did not file any evidence but made submissions on appeal that the deceased was not religious and had said that he wanted to be cremated.

The Court held:

1.Whilst whether the respondent is in a position to take out letters of administration is relevant to determining who may decide the manner and place of burial, the decision of the Full Court in Jones v Dodd (1999) 73 SASR 328 required a flexible, open textured approach where cultural, spiritual and religious considerations relating to the deceased and his family are also relevant.

2.It cannot be said that there was no serious question to be tried on the approach laid down by the Full Court in Jones v Dodd, or that the balance of convenience did not favour the making of an order forestalling cremation.

3.The appeal is allowed and the matter remitted for urgent determination with the benefit of the further evidence the parties wish to adduce. 

Supreme Court Act 1935 (SA) ss 19C, 50; Uniform Civil Rules 2020 (SA) r 212.4; Family Relationships Act 1975 (SA) s 11A; Burial and Cremation Act 2013 (SA) s 9, referred to.
Brown v Tullock (1992) 7 BPR 15,101; Burrows v Cramley [2002] WASC 47; Calma v Sesar (1992) 106 FLR 466; Dodd v Jones [1999] SASC 458; Haydon v Chivell [1999] SASC 315; Jones v Dodd (1999) 73 SASR 328; Jones v Dodd [1998] SASC 6769; Meier v Bell (Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997); Minister v Brown [2009] SASC 86; Smith v Tamworth City Council (1997) 41 NSWLR 680; South Australia v Smith (2014) 119 SASR 247; South Australia v Ken [2021] SASC 10, considered.

MARSCHALL v ELSON
[2023] SASCA 1

Civil - Livesey P and Lovell JA

THE COURT:

Introduction

  1. By an originating application dated 5 January 2023, the appellants sought the grant of letters of administration over the…

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Marschall v Elson [2023] SASCA 1
Case
[2023] SASCA 1
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over the disposal of the body of the deceased. The appellants, the deceased's parents, contended that the deceased wished to be buried in the family plot, as he was a Catholic and had expressed this preference over the years, particularly after a suicide attempt at age 18. The respondent, who claimed to be the deceased's domestic partner, maintained that the deceased should be cremated and his ashes scattered. The appellants accepted they could meet the costs of burial, while the respondent insisted on cremation.

The central legal issue before the court was whether the primary Judge had erred in dismissing the appellants' application, which sought to prevent the cremation of the deceased and allow for his burial. Specifically, the court had to determine if the primary Judge had applied the correct legal principles, particularly those laid down in *Jones v Dodd*, when considering the grant of an injunction in this context. The court also considered the status of the respondent as the deceased's domestic partner, a point disputed by the appellants, and the lack of evidence filed by the respondent.

The Full Court found that the primary Judge had failed to follow the approach mandated by *Jones v Dodd* when considering the injunction. This failure meant that the primary Judge had not properly assessed the relevant legal principles and evidence in determining the dispute over the deceased's final disposition. The court noted the lack of evidence from the respondent and the disputed nature of her claim to be the deceased's domestic partner at the time of his death, despite her solicitor's submissions to that effect.

Consequently, the appeal was allowed, and the matter was remitted for urgent determination. The court's decision indicates that the primary Judge's dismissal of the appellants' application was based on an incorrect application of legal precedent, necessitating a fresh consideration of the case.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing of the appeal the appellants accepted that if the deceased was to be buried they would and could meet the cost of doing so. The respondent maintained that there should be a cremation.Factual background The deceased was born on 4 March 1989 and was 33 years at the time of his death. There appears to be no dispute that the deceased and the respondent were domestic partners for around nine years. During the course of that relationship the deceased and the respondent were joint lessees of rental property at Munno Para and, as mentioned, there were two children of that relationship who are presently six and two years of age. The deceased has an older daughter who is presently 14 years and lives in Queensland with her mother, Ms Kirsty Nance. There was evidence that the deceased remained in regular contact with his older daughter. Whether the respondent remained the deceased’s domestic partner at the date of his death is disputed. The appellants contend that the respondent moved out of the Munno Para home she shared with the deceased and was residing with their two children in her parents’ home in nearby Gawler for some months. Nonetheless, the respondent remained a named lessee and she retained keys to the Munno Para home. Though the evidence is unclear, it would appear that the respondent discovered the deceased’s body when she went to the Munno Para property a day after the deceased had asked her to visit him and she had refused. It may be that the deceased was suffering from depression and died by suicide. There was apparently an earlier suicide attempt made when the deceased was 18 years. After discovering the deceased’s body, the respondent contacted police and, eventually, the Coroner authorised the release of the deceased’s body to Barossa Funerals for the purposes of cremation.[9] Whether the body was released into the custody of the respondent is unclear. Certainly, there is no evidence that the Coroner became aware of any dispute within s 32(2) of the Coroner’s Act 2003 (SA):If the State Coroner becomes aware of a dispute as to who may be entitled at law to possession of the body of a dead person for the purposes of its disposal, the State Coroner may refrain from issuing an authorisation for the disposal of human remains in respect of the body until the dispute is resolved.[9] See generally, Haydon v Chivell [1999] SASC 315 (Lander J) in relation to ss 30 and 31B of the repealed Coroner’s Act 1975 (SA). See also the Burial and Cremation Act 2013 (SA). Although the first appellant told the primary Judge that the deceased had been estranged from his parents for 18 months, she also said that she had a number of conversations with the deceased after he separated from the respondent. Based on these conversations, the appellants claimed that the deceased and the respondent were effectively living apart but under the same roof for two years before December 2022. They maintained that the deceased had commenced a new relationship with a woman whom he had known since she was a teenager. The first appellant asserted that the respondent contacted this woman and asked that she refrain from revealing the fact of her new relationship with the deceased.

Evidence

Evidence Before The Court

After the appeal was filed, on 11 January 2023 the appellants filed a further application seeking an extension of the orders made by Lovell JA for 28 days so that they could prepare the documents necessary to proceed with their application to be granted letters of administration. The evidence filed in support was somewhat repetitive but included serious allegations against the respondent’s father, accusing him of making threats of violence against the appellants.Two features in the evidence: an unaddressed issue None of the deponents was called for cross‑examination and, inevitably, there remain unresolved issues as well as significant gaps in the evidence. Nonetheless, there are two striking features in the evidence, only one of which is significant for the purposes of this appeal. The first of these features, which it is not necessary to determine on this appeal, is that the appellants were concerned about the fate of various chattels, primarily motor vehicles, which they contend were owned by the deceased and in which they have an interest pursuant to a reservation of title arrangement under which they advanced monies to the deceased for the purposes of acquisition. They claim that the respondent and her father have made it difficult for them to recover their property. This seems to be one of the reasons why the appellants seek appointment as administrators. Whilst these disputes over property rights are of undoubted importance to the parties, it is not necessary to resolve them for the purposes of resolving the present appeal. On any view, the deceased’s estate is small and unlikely to reach $20,000. Were it not for the dispute over the manner and place of burial, an estate of that size would not warrant the appointment of an administrator. The second feature of the evidence, which is relevant to the appeal, is that the appellants and Ms Nance have deposed to conversations with the deceased about his wishes and beliefs. The appellants maintain that the deceased wanted to be buried in the Barossa with his parents and four generations of forebears of the Marschall and Kuchel families. They say that, as a Catholic, he did not wish to be cremated and that these arrangements were discussed over the years, especially following the deceased’s first suicide attempt at the age of 18 years. Ms Nance deposed that the deceased told her that he was a Christian who did not want to be cremated but instead buried. As mentioned, there is no evidence from the respondent. It was only during the hearing of this appeal that she requested an opportunity to adduce evidence. In answer to questions from the Court, the respondent challenged the evidence that the deceased was a Christian who did not wish to be cremated but instead buried. She acknowledged the possibility that the deceased had said different things to different people but favoured the view that, whatever might have been said to his parents or his former domestic partner, around five years ago he indicated a preference for cremation and the scattering of his ashes in the Murray River near a property owned by her parents. The respondent said that her plan was that the deceased would be cremated and his ashes split equally between her and her children, the deceased’s daughter in Queensland and the appellants. She said that this had been agreed with the appellants during the meeting at Barossa Funerals. Although it seems that the respondent facilitated the funeral in the Barossa Valley, she said that the deceased did not want to be buried with his family in the Barossa Valley.

Decision

Reasons for decision

For the reasons that follow, in determining whether to grant an injunction, the primary Judge failed to follow the approach laid down by the Full Court in Jones v Dodd,[5] with the result that on 12 January 2023 the appeal was allowed and the matter remitted for urgent determination.[5] Jones v Dodd (1999) 73 SASR 328, [33] (Perry J with whom Millhouse and Nyland JJ agreed).The decision of the primary Judge The respondent was represented by her solicitor before the primary Judge. The appellants were not represented though they received assistance from the carer who usually assists the first appellant with her eyesight and mobility issues. The argument before the primary Judge proceeded on the basis that the respondent is or was the deceased’s “domestic partner” within the meaning of s 11A of the Family Relationships Act 1975 (SA):11A—Domestic partnersA person is, on a certain date, the domestic partner of another if—(a) the person is, on that date, in a registered relationship with the other; or(b) the person is, on that date, living with the other in a close personal relationship and—(i)the person—(A)has so lived with the other continuously for the period of 3 years immediately preceding that date; or(B)has during the period of 4 years immediately preceding that date so lived with the other for periods aggregating not less than 3 years; or(ii)a child, of whom the 2 persons are the parents, has been born (whether or not the child is still living at that date). There is no suggestion that the relationship between the deceased and the respondent was “registered”, and no declaration has been sought pursuant to s 11B of the Family Relationships Act 1975 (SA). A significant feature of this litigation is that the respondent through her solicitor submitted that she remained the deceased’s domestic partner at the time of his death but there was no evidence to that effect. Indeed, no evidence at all has been filed by or on behalf of the respondent. A reading of the transcript shows that the primary Judge was understandably troubled by the appellants’ delay in making their application, some days after a meeting at Barossa Funerals during which they had discussed and appeared to agree with the funeral arrangements which the respondent had arranged with representatives of the funeral home. Nonetheless the second appellant, the deceased’s father, told the primary Judge that he had objected to cremation and the first appellant, the deceased’s mother, said that they were told that they had “no say” in the matter. The primary Judge was told that the funeral and cremation arrangements had been deferred to Monday, 9 January 2023. The brief affidavit evidence before the primary Judge was supplemented by submissions from the deceased’s mother and the respondent’s solicitor, using Webex. Only an audio connection could be made. After those submissions, the primary Judge dismissed the application, principally because the respondent had “priority in obtaining letters of administration”.

Ratio Decidendi

Legal Principle Established

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