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[2025] NSWSC 1345
General information, not legal advice.
Supreme Court of NSW
2025-11-13
Meek J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mackie v Tedesco [2025] NSWSC 1345
Hearing dates: 13 November 2025
Date of orders: 13 November 2025
Decision date: 13 November 2025
Jurisdiction: Equity - Duty List
Before: Meek J
Decision: Orders made permitting the plaintiff to spend up to 60 minutes in the presence of the deceased’s body, being able to view her in an open casket with the funeral director or a staff member present but with no touching of the body allowed.
Catchwords: SUCCESSION — Burial and interment rights — Urgent application by granddaughter within 48 hours of deceased’s death to the Court for orders permitting 90 minutes of private access (with no other person present) to the deceased’s body, including permission for touching, before preparation of body for interment — Deceased made a number of instruments and directions regarding her burial — Ultimately, the deceased appointed a solicitor as executor but entrusted her son (first defendant) with making arrangements for her interment and discussed her wishes with him — Proposed arrangements for deceased’s memorial service to occur within days by closed casket and then for interment of deceased’s body in family vault
SUCCESSION — Burial and interment rights — Initial lack of clarity regarding who had custody of the deceased’s body and location — Importance of parties being able to provide the Court with a core of critical information quickly to enable a sufficient picture of essential details to emerge from an obscured position
SUCCESSION — Burial and interment rights — Joinder of parties — Deceased’s executor (a solicitor) joined as a party and orders made pursuant to r 7.10(2)(b) UCPR for representation and binding of the estate in respect of the determination in the absence of a grant of probate of the deceased’s Will and Codicil
ALTERNATIVE DISPUTE RESOLUTION — Burial law — Law is often a blunt and sometimes can be an insensitive instrument to resolve what are essentially relational disputes between parties — Imperatives of ensuring the interment is conducted in a dignified manner and honouring the memory of the deceased heighten the sensibility of parties endeavouring, within the limited window of time available, to agree on consensual solutions — Parties encouraged by Court to first explore consensual outcomes
SUCCESSION — Burial and interment rights — Case management — Plaintiff seeks orders regarding immediate access to deceased’s body and also disclosure of information and records — Access issue to deceased’s body immediately addressed — Application for disclosure of information and records separated from abovementioned matter
SUCCESSION — Burial and interment rights — In absence of an agreed outcome between parties, the Court’s resolution of the matter will necessarily require appropriate clarity of orders — Determination that plaintiff should have time in the presence of the deceased’s body in an open casket but with no touching and orders made giving precision to that
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Brown v Weidig [2023] NSWSC 281
Chipizubov v Elias [2025] NSWSC 326
Dayman v Dayman v Dayman [2024] NSWSC 838
Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18
Gus Kak v Allison Sarah Kak (nee Boman) [2020] NSWSC 140
Texts Cited: Dictionary of First Names (2nd ed, 2006, Oxford University Press)
Lewis, CS, A Grief Observed (2009, HarperCollins e-books)
Category: Principal judgment
Parties: Vanessa Mackie (Plaintiff)
Domenico John Tedesco (First Defendant)
Ronald William Gorick (Second Defendant)
Representation: Solicitors:
WMW Lawyers (First Defendant)
Diamond Conway Lawyers (Second Defendant)
In person (Plaintiff)
File Number(s): 2025/00434230
HIS HONOUR: In A Grief Observed, [1] CS Lewis, the famous literary scholar and lay theologian, chronicles his experiences and struggle with bereavement consequent upon the death of his wife, Joy Davidman. He observed that bereavement is a universal and integral part of our experience of love. [2] Few would doubt that as a general and enduring truth.
In the early evening last Friday, Giuseppina Tedesco, aged 95, passed away at Scalabrini Village, Allambie Heights, a care facility.
Giuseppina is a classically beautiful Italian name, being a feminine form of Giuseppe, with English equivalents being Josephine and Joseph. [3] The names are derived from the Hebrew name Yosef meaning "He (God) shall add (another son)” [4] or God will increase. It is consistent with divine favour, blessing and abundance.
The deceased was blessed with five children, including her son Domenico (first defendant) as well as grandchildren, including Vanessa Mackie (plaintiff), the daughter of Rosetta who predeceased her mother.
Significantly, the deceased is described by Domenico as being very religious, holding to the Catholic faith, and also as a pillar who helped him and his wife, Christina, through the heartbreaking loss of their newborn child, Gabriel, in 2006. He says, and I have no reason to doubt, that her unstinting support strengthened their relationship.
Sadly, there has been some degree of conflict within the immediate family. After the deceased passed away on Friday evening, Christina, around 8 pm, informed the plaintiff of her Nonna’s passing. It seems the plaintiff, for her part, anticipated some further communication which did not occur in accordance with her expectations.
The plaintiff wished "to have a short, private opportunity to attend upon the body of the deceased before any preparation". Concerned that she was at risk of being denied that opportunity by her uncle, Domenico, who at the time she thought was the executor, and perhaps concerned that unless she took precipitous action, arrangements for the interment of the deceased’s body might quickly progress without her wishes addressed, the plaintiff approached the Court seeking relief barely 48 hours after the deceased passed.
It has subsequently become evident that Domenico is not the executor of the deceased's estate. In fact, a solicitor, Ronald Gorick (now joined as second defendant) had been entrusted by the deceased with that task. Given Mr Gorick had no real opportunity to prove the Will in the context of the urgency of the matter, in order to ensure that the deceased's estate was bound by an outcome, I made a form of representative order pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) on Tuesday.
Time, being of the essence, has not permitted evidence to be adduced in a completely leisurely or ideal way. Other than as briefly noted below, there has been no formal process of testing of the evidence, such as by detailed cross-examination.
On Monday, the plaintiff, who at all relevant times has been unrepresented, initially prepared an affidavit which was unsworn. She had a dilemma about attempting to find a JP or solicitor who would administer an oath or affirmation. To expedite matters, I permitted the plaintiff to verify the unsworn affidavit material by being called into the witness box, taking an oath and attesting to the truth of the unverified form of affidavit.
On Tuesday, Mr Nath, appearing for Mr Gorick, attended but had not had the time to prepare affidavit material. He tendered a number of documents and I marked them as exhibits.
Yesterday (Wednesday), the attempted resolution was naturally intended by me to be a private and confidential discussion. For reasons unclear to me, the plaintiff saw fit to email my Associate with some updates regarding developments during the day. Needless to say, judges should not be provided the details of confidential discussions between parties without the agreement of all of those parties. Purity of the judicial process is important.
Today, the matter was listed at 2 pm to be dealt with. The plaintiff was somewhat delayed in arriving at Court but nonetheless did arrive. She appeared in person. Domenico also attended and was represented by Mr Parisi, solicitor. Mr Nath also appeared in the interests of Mr Gorick.
I raised the matter regarding the emails irregularly sent to my Associate briefly this afternoon when all of the parties were present before the Court. [5] I do not consider, and expressly do not find, that the plaintiff intended anything untoward by her actions. Whilst I indicated to the parties during today’s listing that I had not viewed any of the material that had been irregularly emailed to my associate, Mr Parisi informed me that some of that material was annexed to the affidavit of Domenico handed up today. [6] I refer to such of that material below in that context.
I inquired of the parties what, if any, further evidence they wished to place before the Court. The plaintiff had no further particular evidence to provide. Mr Parisi sought to read an affidavit of Domenico sworn this morning. I gave the plaintiff opportunity to consider it and she was able to at least read the substance of that affidavit. [7] Mr Nath filed and read an affidavit of himself which annexed copies of the documents that had been produced on Tuesday and, in addition, very briefly stated the position of Mr Gorick regarding the matter.
Vanessa challenged the accuracy of the deceased’s wishes as recounted by Domenico (as outlined below). His evidence was sworn in the form of an affidavit. He was also briefly examined and cross-examined. Within that albeit limited examination, he made minor seemingly appropriate qualifications to his evidence. However, there was nothing that suggested to me that on the critically urgent issues before me, his evidence was inherently unreliable or demonstrably inconsistent with other objective material. In the exigent circumstances of the case, I accept his evidence on the critical issues for the purposes of this interlocutory dispute.
Unconventionally, the plaintiff's notice of motion seeks more expansive forms of final relief than that set out in the plaintiff's summons.
The Duty List is essentially designed to deal with discrete and urgent aspects of relief on an interlocutory basis, whilst reserving non-urgent interlocutory relief and self-evidently final relief to a later point of time where that can be addressed in a more considered, better informed and less pressured way.
Consistent with the approach that I indicated in Chipizubov v Elias, [8] I will address the immediate and urgent relief regarding the plaintiff's request for an opportunity to attend in the presence of the deceased's body prior to the proposed entombment, and will adjourn the balance of the plaintiff's claims for other relief, including disclosure of certain information and access to records, to be dealt with non-urgently in the usual course of the Court's processes.
The relevant orders sought by the plaintiff in her notice of motion are:
- Preservation: Until 6:00 pm Tuesday 11 November 2025 or further order, the Defendants and any person with notice are restrained from undertaking embalming, washing, dressing, cosmetic treatment, invasive procedures, suturing or other preparation of the body of Giuseppina Tedesco (deceased), and from cremation or other disposal.
- Private access (no relatives; no person in room): The First Defendant must instruct the Second Defendant (or any facility having custody) to permit the Plaintiff a private period of up to 90 minutes with the deceased before any preparation, to occur within 24 hours of this order, at a time fixed by the custodian when no other relatives are present. No person is to be present in the room during the Plaintiff’s attendance, save for brief staff entry at the start and end for access/safety. No audio/video recording is to occur during attendance.
- Non-attendance during private period: The First Defendant, and any person acting on his instruction, is restrained from attending at the funeral home/facility during the Plaintiff’s private attendance.
Though the plaintiff on Thursday sought for the funeral director to be restrained from preparing the deceased’s body until after her private attendance, that claim for relief was in a sense overtaken by events, as it became evident the deceased’s body was embalmed yesterday. [9]
There was prolonged dialogue today regarding confirmation of the plaintiff’s wishes to have permission to touch the body of the deceased. Initially, I asked the plaintiff to confirm her position and she responded as follows: [10]
HIS HONOUR: And you wish the ability to touch your grandmother, is that right?
PLAINTIFF: Absolutely.
Essentially, I have determined that the plaintiff ought to be given a brief opportunity tomorrow to be in the presence of the deceased's body with the funeral director (or a staff member), but without other family, including Domenico, present. I will particularise further details in the orders I make. However, notably, whilst I allow a form of open casket, the orders do not extend to permitting the plaintiff to touch the deceased’s body.
Before explaining the reasons for my decision, I will first note some of the legal principles and recount the essential factual details.
The legal principles which guide the Court in exigent circumstances such as this are set out in a number of cases, including Chipizubov v Elias, Dayman v Dayman [2024] NSWSC 838 (Dayman), Brown v Weidig [2023] NSWSC 281 (Weidig).
In Dayman at [93]-[94], I described the initial task of the Court faced with applications regarding arrangements of a deceased’s body in the following terms:
- The initial task of the Court is often one of: gleaning information about the deceased; identifying the members of the deceased’s immediate family and those who might be interested in the disposal, internment or distribution issues; clarifying who currently holds or has control of the deceased’s body, and where it is located; and ascertaining whether there are any material cultural or spiritual factors as to how the deceased lived in his or her life which may bear upon appropriate orders to address the disposal, internment or distribution issues.
- In the first instance, the Court seeks to ensure that no precipitous action is taken in relation to the disposal or internment of the deceased’s body. The Court will frequently consider making orders to restrain any action in that regard whilst the claims of the party who has approached the Court are made known to the defendants and other interested parties by service of the document or documents initiating the claim.
- Ultimately, in the absence of legislation governing the outcome of a case, the Court is required, in the determination of a dispute as to who has carriage of disposal of a body, to exercise a discretion taking into account a range of factors (depending upon the particular circumstances of the case and unable, prudently, to be stated exhaustively in the abstract) that may include:
(a) the logistics and available funding for disposal of the body;
(b) the wishes or preferences of the deceased, if known;
(c) the wishes or preferences of the community or communities, in which the deceased lived (including, but not necessarily limited to, members of family);
(d) any cultural or spiritual factors material to how the deceased lived life; and
(e) the accessibility of the deceased’s mortal remains to those who seek to mourn a death or to remember.
The deceased was married to Francesco Tedesco and, as previously mentioned, had five children. Domenico is their youngest child. The deceased and Francesco also had Rosetta Mackie (the plaintiff’s mother) who passed away in 1996 or 1997, [12] Caterina Watts, Maria Nuchanantanon and Nicola Tedesco. [13]
The deceased, according to Domenico, would attend church at least three times a week. [14]
From 2016 to 2020, Christina lived with the deceased at Collaroy to help look after her as she suffered age-related health issues.
Around late 2020, the deceased suffered what Domenico describes as a ‘mini-stroke’ that caused physical damage. Accordingly, the deceased was advised by her doctors that she could no longer live on her own. In February 2021, Domenico arranged for her to go live in an aged care facility, being the Scalabrini Village. He says he spoke or spent time with her at least every second day, which increased to every day from about June 2025. [15] During her time at Scalabrini Village, the deceased attended the chapel there. [16]
Whilst the plaintiff asserts sharing a close connection with the deceased, Domenico disputes that. It is not necessary for me to detail the extent of that dispute, and I expressly do not make any finding in respect of it. The purpose of these reasons for judgment is not for me to delve into and determine the rights and wrongs of history recorded in Domenico's affidavit.
It took some time for detail regarding the location of the deceased’s body to be provided to the Court as I have noted above. In the course of that evolving position, the Court received some communication from Larry Taylor, the Village Manager at Scalabrini Village.
The current position is that the deceased's body is in the custody of Rosa Peronace, the funeral director at O'Hare Funeral Directors at Norton Street, Leichhardt. As mentioned above, it appears her body was embalmed yesterday, and that dressing of the deceased's body was to take place today.
The deceased left a Will dated 21 June 1996 in which she appointed Francesco as executor but, in the event of his prior death, appointed Domenico and a solicitor, Hugh McCallum, to be executors.
In 2004, the deceased executed a Codicil by which she revoked the appointment of the executors in her Will and appointed Mr Gorick as executor.
On 7 June 2005, the deceased signed a direction to Mr Gorick regarding arrangements for her funeral:
I Giuseppina Tedesco hereby request that my son Domenico Jon Tedesco be solely responsible for the arrangements of my funeral when I pass away. He is fully aware of my personal requests and preferences for the funeral details. This is due to the excellent way he arranged by husband Francesco’s funeral.
I also request that my son Domenico John Tedesco manage all properties & rent collection within my estate under the supervision of the executor Mr Ron Gorrick and at my sons request receive no remuneration for the service. This is due to the fact that he has managed and collected the rents for all the properties in the estate for the past 20 years.
I, Guiseppina Tedesco, hereby make the following additional requests concerning my funeral:
1. This request is in addition to the request signed by me and dated 7 June 2005.
2. It is my desire that none of my children make a speech or conduct the eulogy at my funeral.
3. It is my request that the option be given to any of my grandchildren to speak at my funeral. It is my desire that they speak on behalf of all the family at my funeral.
Domenico says that his mother discussed with him her wishes regarding her funeral as follows: [17]
She wished to be dressed in her silver and grey silk formal dress, black leather enclosed shoes, along with particular undergarments.
She wanted her rosary beads with her when placed in the coffin.
She wished for the funeral arrangements to be made by O’Hare Funeral Directors, who also arranged the funerals of Francesco and other family members.
She took pride in her appearance and specifically did not want an open casket, wanting people to remember her by the way she looked when she was alive.
She specified particular music to be played and types of photos to be shown at the funeral.
During his brief giving of oral evidence today, Domenico deposed that he recalls at least one instance in 2024 when the deceased told him she did not want people touching her or kissing her because she will be dead. [18]
The parties' positions emerged in the affidavit material and was elaborated during the hearing today.
Mr Nath explained the position of Mr Gorick vis a vis Domenico as follows: [19]
In accordance with the 2005 Direction, the Deceased requested that the First Defendant be solely responsible for the arrangement of the Deceased's funeral. Accordingly, I am informed and verily believe that the Second Defendant's position in respect of any funeral arrangements for the Deceased is that he is content for the First Defendant to take all reasonable steps to organise all aspects of the funeral of the Deceased in accordance with the Deceased's wishes, including any viewing requirements.
The defendants jointly propose the following (final) proposal in an effort to achieve a pragmatic outcome:
1. A private farewell to be conducted in O’Hare’s chapel with no other relatives present, for 60 minutes from 11am 14 Novembre 2025.
2. A staff member from O’Hare will be present in the room at all times and they will open the casket.
3. The casket will remain opened during the private viewing.
4. You must not have any photographic or video equipment in the chapel and must not photograph or video the casket or the deceased. You must not touch or interfere with the deceased in any form whatsoever.
Likewise, I do not accept your proposal as set out in your email.
I can attend at 11:00 am on Friday 14 November. The points of disagreement are staff presence, contact and the characterisation of my Nonna’s “wishes”. My position is:
1. Privacy in the room No relatives present and no staff remaining in the room during my attendance. A staff member may open/close the chapel and perform brief checks at the start and end only.
2. Casket and timing The casket to be open during my attendance and my attendance to occur before any preparation (no embalming, washing, dressing, cosmetic or invasive treatment beforehand).
3. No record I will not bring photographic, video or audio equipment and will not record anything. For clarity, on the night my Nonna died the family offered to send me photographs; I declined then and I am not seeking any recording now.
4. Contact vs “interference” I will touch my grandmother as I always have in life – with love, with respect and with absolute care. Your blanket statement that I “must not touch or interfere… in any form whatsoever” is not accepted. If you maintain the word “interfere”, please specify precisely what you contend that covers and the basis on which you say it is required.
5. “No open-casket viewing” assertion Your statement that Mrs Tedesco expressed wishes against an “open casket viewing for her funeral” is not accepted. No contemporaneous written instruction has been produced, and at no time in my life did she express that to me. in any event, I am not seeking a public funeral “viewing”. I am seeking a private, prep-preparation farewell in the chapel, which does not affect the funeral arrangements.
Please confirm agreement to the above by 5:30 pm today and instruct A. O’Hare in writing, copying me, so practicalities for 11:00 am can be finalised. If I receive dissent or silence by 5:30 pm, this will be my last communication before I inform Chambers that we remain in dispute and ask the Court tomorrow to make short, practical orders.
Consistent with the guidelines and caselaw I have outlined above, including (non-exhaustively) those summarised by Lindsay J in Weidig at [38], my determination of the matter has taken into account the following.
Mr Nath helpfully drew my attention to aspects of the decision of Hammerschlag CJ in Eq in *Gus Kak v Allison Sarah Kak (*née Boman) [2020] NSWSC 140, and Mr Parisi for his part proffered further assistance if needed in respect of the case law.
Uniquely, in this case, there is a very clear indication from the deceased regarding who is to arrange her interment, namely, Domenico.
The deceased's wishes, and the intentions of Domenico, are highly important, although not absolutely decisive, considerations of what ought to occur.
Two particular sensorial issues ultimately have divided the parties. One is whether there would be an open casket, and the other is whether the plaintiff ought to be permitted to touch the deceased's body.
Guided by the applicable legal principles, I have taken into account various factors and considerations, including non-exhaustively:
the importance of ensuring a dignified interment and honouring the memory of the deceased;
the wishes of the deceased that she not be seen or touched in a deathly state;
the fact that the deceased expressly entrusted to Domenico the solemn task of arranging her interment and gave a specific reason for doing so;
Domenico’s wishes and plan of arrangements including the express decision against an open casket rosary service;
the plaintiff’s wishes to have accessibility of the deceased’s body to mourn her death and to remember her in a deeply personal way;
the fact that there is logistically a chapel area within the funeral director’s premises where an attendance by the plaintiff (if permitted) is able to be arranged;
the availability of the funeral director or her staff; and
the fact that timing of such arrangement is able to be facilitated within specified windows of time tomorrow.
Having regard in particular to the complexity of human relationships, the deceased’s wishes, the executor’s position, Domenico’s wishes and the plaintiff’s desire to have a deeply personal experience, I will briefly elaborate upon my consideration of relational aspects of the issues which divide the parties and the vexing yet vital task of weighing conflicting wishes.
It is uncontroversial that physical presence is, generally speaking, a very significant part of the essence of human relationships. The opportunity and privilege of being in the presence of others enriches the relationship.
THE COURT:
(a) affidavit of Domenico John Tedesco sworn 13 November 2025; and (b) affidavit of Krishneel Nath sworn 13 November 2025.
(a) be for a period of no more than 60 minutes at 11am Friday, 14 November 2025 (noting that is a time convenient to the Plaintiff); (b) the attendance will be in the presence of Ms Peronasc or such other designated staff member being in attendance in the Chapel at all times; (c) the casket is to be opened and remain opened during the viewing; (d) the viewing is to occur without any use of photographic or video equipment; and (e) the viewing is to occur without the Plaintiff being permitted to touch the deceased’s body.
**********
CS Lewis, A Grief Observed (2009, HarperCollins e-books).
Ibid at p. 50.
Dictionary of First Names (2nd ed, 2006, Oxford University Press) at 365.
Ibid at 148.
From T 1.37.
T 2.1-.4.
T 4.40-5.7, 6.29, 7.48-8.32.
See [103].
Affidavit of Domenico John Tedesco, 13 November 2025, [34].
T 11.40-.43.
T 22.1-23.25.
T 6.31-7.3.
Affidavit of Domenico John Tedesco, 13 November 2025, [6].
Ibid [27].
Ibid [11]-[13].
Ibid at [27].
Affidavit of Domenico John Tedesco, 13 November 2025, [28]-[32].
T 19.3-.7.
Affidavit of Krishneel Nath, 13 November 2025, [4].
Annexure B to the affidavit of Domenico John Tedesco, 13 November 2025.
Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18 at [28] per Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ.
Coversheet amended [7] "precipitous actions" amended to "precipitous action" [72] "casted" amended to "cast"
[74] Formatting of orders amended
Mackie
Tedesco [2025] NSWSC 1345
(2022) 275 CLR 400
Frequently, in such cases, the Court is approached and asked to intervene or superintend interment arrangements with very little information, provided in piecemeal fashion, and so it was with this case. There is a certain core of non-partisan material which is vital, or at least often important, for the Court to be provided with to determine outcomes. Practical guidance as to the information required was addressed by me in Chipizubov v Eli**as [2025] NSWSC 326 (Chipizubov v Elias), particularly at [12]-[23].
The exigencies of the matter have given rise to three listings before the Court within four working days of the deceased's death. Arrangements have been made for a memorial service on Monday morning at 10.30 am and then, following that, an interment of the deceased's body at a family vault at Belrose/Frenchs Forest cemetery. Domenico indicated that although ceremonies arranged in accordance with the Roman Catholic faith or tradition usually involve an open casket rosary service, in light of the deceased’s concern and express wishes that her body not be viewed and remembered in a deathly state, the service will not involve the rosary aspect.
The difficulty that the Court faces in being provided limited but augmented information may be likened to the process of a child's hidden picture scratch-off activity. Dependent upon where the child starts or moves to, various aspects of a concealed or hidden picture start to emerge. The partial but ongoing disclosure made each step of the way, depending where the child goes, leaves different perceptions of what lies below.
Sometimes, the film covering parts of a picture is a little more resistant to removal than other parts, and so the child moves to another spot to gain greater sight of what lies beneath. So here, by the Court asking for and being provided with various bits of information, a fuller picture of the deceased, her wishes and the family relationship dynamic has emerged. For reasons that are not necessary to detail, initially, some bits of information (regarding who had custody of the deceased’s body and its location) have been harder to glean than others and required a degree more of persistent "scratching" to emerge.
Imperatives of ensuring the interment is conducted in a dignified manner and honouring the memory of the deceased heighten the sensibility of parties endeavouring, within the limited window of time available, to agree on consensual solutions which are consistent with those matters yet meet the exigencies of the various relational and practical decisions required to secure the interment of the deceased.
The Court encouraged the parties to first explore a consensual resolution to the matter. Yesterday, they attempted but failed to reach an agreed outcome. Faced with a rapidly diminishing ‘hourglass’ of time before Monday's interment arrangements to address the request for a private farewell, and having regard to the demands of the Court in dealing with a heavy Duty List, I have been compelled to determine an outcome in circumstances where a somewhat imperfect mosaic of facts has emerged.
Human relationships are infinitely varied and infinitely immutable. [21] Relationships can be instigated, develop and mature without the physical presence of the parties to the relationship. Nonetheless, separation in its various forms may impede the relationship and in many circumstances have the effect of bringing the relationship to an end. Leaving aside beliefs and cultures regarding spiritual connection and any life after death, death at least in a physical sense ends the relationship. It effects a permanent separation.
The circumstances in which someone may come to pass away, with or without the opportunity of family members or loved ones to express parting words, may be varied.
In some instances, death may be sudden, without warning, and bodies (e.g. lost at sea) never recovered. In other instances, loved ones may have little or no opportunity to view or to speak with the deceased prior to the death. In other circumstances, the compromised health of a person may be known and there may be some opportunity for loved ones to say goodbye or have final words. The opportunity to see and touch a loved one, even fleetingly when that person is in extremis or perhaps barely conscious, may give rise to a poignant and palpable moment, remembered long after passing of their dearly departed loved one.
The plaintiff expressed that, for her, the opportunity to see and perhaps touch the deceased’s body would be deeply personal. The requests are not alternatives. Sight is one thing. Touch is (in this case) a further step.
Consequent upon the death of a person, the departed one self-evidently has no direct opportunity in a sense to filter those who have access to their bodies. Prior to their death, they may express wishes in the form of testamentary instruments or other directions that outline what they desire to occur. The respect of and dignity which should be accorded to those wishes is not extinguished by death.
Difficult as it is, I have ultimately determined that the plaintiff should have an opportunity to attend upon the deceased’s body to see her body (noting that is contrary to the deceased’s previously expressed wishes) but I have declined to permit the plaintiff the further step of touching the deceased’s body should she wish to do so (noting that decision is in accordance with the deceased’s previously expressed wishes).
Because the parties are in dispute, it is necessary for the Court to frame appropriate orders to give effect to the above decision. The plaintiff expressed her disappointment (if that be the right word) that the determination of the Court was being reduced to a type of clinical order, I can only say that that is certainly not the Court's intention.
The Court is sensitive and does intend to be appropriately respectful of the parties in the midst of their grief. However, law is often a blunt (and sometimes can be an insensitive) instrument, to resolve what are essentially relational disputes between parties. In the circumstances of this case, that truism is strongly evident. That is precisely why the Court requested the parties to attempt to reach an agreed outcome.
Nonetheless, if parties are unable to agree on an outcome and the Court is left with no choice other than to superintend the arrangements, an appropriate degree of precision and clarity as to what is to occur, even if superficially it has the appearance of being clinical, is necessary.
Other than what is necessary for the purposes of appropriately balancing the interests of the parties and having proper respect for the deceased's wishes and the dignity of final steps to the interment of her body, the orders are not intended to detract from or deprive the plaintiff of the access and personal experience she so desires.
Lastly, it is clear from the limited evidence, which included communications from Mr Taylor, that the deceased was a remarkable, much loved and tender soul. I have the impression that her presence and gentle colourful character cast a calming yet sublime hue over the lives of those around her and imbued her family and those around her with the benefits of her sacrificial love.
Whilst no doubt her family will deeply miss the loss of her presence, they will of course have their own cherished memories of her which will endure.