McKenzie v McKenzie - [2023] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MCKENZIE v MCKENZIE
[2023] SASC 71
Judgment of the Honourable Justice Bampton
HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES
HEALTH LAW - BURIAL AND CREMATION - CEMETERY AND CREMATORIUM LANDS
The deceased died intestate on 13 March 2023 survived by his adult daughter – where the deceased’s sole surviving sibling asserts the deceased expressed the wish during his lifetime to be buried in plot 2978 in the Hawker Cemetery, next to his brother and close to other predeceased family members – where the deceased’s daughter and his surviving sibling are in dispute regarding the deceased’s place of burial – where the parties agreed to exclude from the flexible balancing of common law principles and practical considerations any cultural and spiritual matters – where the deceased’s daughter is entitled to apply for letters of administration in the deceased’s intestate estate – where the wishes of members of the family of the deceased are taken into account – whether there is evidence of the deceased's wishes regarding burial.
HELD: The deceased be buried in plot 2985 in the Hawker Cemetery and the lease to plot 2985 be assigned to the deceased’s daughter – the lease to plot 2987 in the Hawker Cemetery be assigned to the deceased’s daughter for her future use (should she wish) – the lease to plot 2989 in the Hawker Cemetery be assigned to the deceased’s daughter or her mother for the mother’s future use (should she wish).
Probate Rules 2015 (SA) r 34, referred to.
Marschall v Elson [2023] SASCA 1, applied.
White v Williams (2019) 99 NSWLR 539; The State of South Australia v Smith & Anor (2017) 119 SASR 247; In the Estate of Jones (Deceased); Dodd v Jones [1999] SASC 458, considered.

MCKENZIE v MCKENZIE
[2023] SASC 71
Civil: Application

BAMPTON J: DM,[1] an Adnyamathanha man of few words, died on 13 March 2023 at his home at Oraparinna Station, approximately 77 kilometres from Hawker in the Flinders Ranges. He is survived by his adult daughter Clare McKenzie (“Clare”). His only surviving sibling is his sister Tanya McKenzie (“Tanya”). DM died intestate and without a pre-arranged funeral plan. A dispute has arisen between Clare and Tanya concerning where the bodily remains of DM should be buried (“the dispute”).
[1] The deceased and members of his family referred to in this decision who predeceased him are referred to by their initials due to their cultural beliefs.
Tanya commenced these proceedings against Clare, naming Quinn Funerals (SA) Pty Ltd as an interested party and seeking orders that:
1.Clare be prohibited from disposing of or otherwise dealing with the bodily remains of DM except as expressly allowed for by orders of this Court or by agreement with her.
2.Quinn Funerals (SA) Pty Ltd (“Quinn Funerals”) be prohibited from releasing or disposing of the bodily remains of DM except as expressly allowed for by orders of this Court or by agreement between Clare 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 McKenzie v McKenzie

Details

AGLC: McKenzie v McKenzie [2023] SASC 71
Case: [2023] SASC 71
Decision Date: 11 May 2023

CaseChat Overview and Summary

In the case of McKenzie v McKenzie, the dispute centred on the burial and cremation of the deceased, DM, and the subsequent management of his remains. Tanya McKenzie, the daughter of DM's stepmother, sought to prevent the cremation of DM's remains and instead have them buried in a specific plot in the Hawker Cemetery. Clare McKenzie, DM's daughter, opposed this request and argued for the cremation of DM's remains according to his wishes. The matter was heard in the South Australian Supreme Court.

The primary legal issues before the court were whether the court had jurisdiction to make orders regarding the burial or cremation of DM's remains and, if so, what orders should be made. The court also needed to determine whether there were any cultural or spiritual considerations that should be taken into account in making its decision. The court was required to balance the competing interests of the family members and consider the wishes of DM regarding the disposal of his remains.

The court found that it had jurisdiction to make orders regarding the burial or cremation of DM's remains. The court noted that while the Family Law Act 1975 did not specifically address the issue of burial or cremation, the court had inherent jurisdiction to make orders in the best interests of the parties. The court also found that there were no cultural or spiritual considerations that would prevent it from making an order regarding the disposal of DM's remains. The court considered the evidence of DM's wishes and found that he had expressed a clear desire to be cremated. The court also noted that DM's family had a history of cremation and that there were no religious or cultural objections to cremation within the family.

The court ultimately ordered that DM's remains be cremated in accordance with his wishes. The court found that this was in the best interests of the parties and that it would avoid further conflict within the family. The court also noted that the burial plot in question was not suitable for cremation and that it would be inappropriate to force Tanya to use an unsuitable plot. The court made orders prohibiting Quinn Funerals from releasing or disposing of DM's remains except as expressly allowed by the court's orders or by agreement between Clare and Tanya. The court also ordered that any costs associated with the cremation be borne equally by Clare and Tanya.

In summary, the court found that it had jurisdiction to make orders regarding the burial or cremation of DM's remains and that it was in the best interests of the parties to cremate DM's remains in accordance with his wishes. The court also noted that there were no cultural or spiritual considerations that would prevent it from making this decision. The court made orders prohibiting Quinn Funerals from releasing or disposing of DM's remains except as expressly allowed by the court's orders or by agreement between Clare and Tanya. The court also ordered that any costs associated with the cremation be borne equally by Clare and Tanya.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 5 April 2023, a Master of this Court ordered that until further order, Quinn Funerals be prohibited from releasing or disposing of the bodily remains of DM except as expressly allowed for by orders of this Court or by agreement between Clare and Tanya. Quinn Funerals, by its solicitor, informed Tanya’s solicitors that it would not take a position in the dispute and would abide any orders of this Court. The evidence Tanya’s application came on for hearing before me on 5 May 2023. Tanya relied on three affidavits affirmed by her on 3 April 2023, 14 April 2023 and 25 April 2023, which were read into evidence.[2] She also relied on and read into evidence the affidavit of Narelle McKenzie affirmed 14 April 2023,[3] the affidavit of Trevor John Menzel affirmed 14 April 2023,[4] the affidavit of Pauline McKenzie affirmed 14 April 2023,[5] and two affidavits of Julia Henderson affirmed 14 April 2023 and 26 April 2023.[6][2] Exhibits A7, A8, and A9.[3] Exhibit A3.[4] Exhibit A4.[5] Exhibit A10.[6] Exhibits A5 and A6. Clare relied on and read into evidence her affidavits affirmed 21 April 2023 and 4 May 2023,[7] an affidavit of her mother Jillian Kay Marsh affirmed 21 April 2023,[8] and an affidavit of her grandmother Enice Marsh affirmed 21 April 2023.[9] Both Clare and Jillian supplemented matters deposed to in their affidavits with oral evidence‑in‑chief and were not cross-examined. [7] Exhibits R3 and R4.[8] Exhibit R2.[9] Exhibit R1. As it was agreed the Court could not make findings in this proceeding regarding cultural and spiritual matters, any such matters deposed to in the affidavits were not read into evidence.DM’s family relationships DM, his elder brother JM, and his younger sister SM are the children of FM and BM. Following FM’s death, BM formed a relationship with AC. BM and AC are the parents of Tanya. DM and his former partner Jillian Marsh (“Jillian”) are the parents of Clare. Enice Marsh (“Enice”) is Jillian’s mother and Clare’s grandmother. JM, who died in 2014, and Julia Henderson (“Julia”) are the parents of Jessica McKenzie (“Jess”). Julia is also the mother of Doogal and Barney from a previous relationship. Julia, Doogal, and Barney are not Aboriginal. SM, who died in 1999, is the mother of Narelle McKenzie (“Narelle”). Trevor Menzel (“Trevor”) is Tanya’s partner. Pauline McKenzie (“Pauline”) is the daughter of FM’s brother. Members of DM’s family buried in the Hawker Cemetery To assist in understanding the dispute, the plan below identifies the locations of the graves of DM’s father FM, his mother BM, his mother’s partner (and Tanya’s father) AC, his sister SM, and his brother JM in the northeast corner of the Hawker Cemetery. The plan shows the location of plot 2978 being one of the 11 plots leased by JM’s former partner Julia.[10] The three plots the subject of the “open offer” discussed latter in this decision are located to the south of AC’s grave highlighted in green. [10] Plot 2980 became JM’s grave in 2014.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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