Mackie v Tedesco

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.

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 Elias [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.

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:

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]

Though there was some debate regarding whether the plaintiff “intended to” or rather “wished to” to touch the deceased’s body (such as by hugging or kissing), it was clear that she sought orders from the Court permitting her the opportunity to do that. [11]

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:

In Weidig at [38], Lindsay J provided some non-exhaustive factors to consider in exercising the Court’s discretion:

Though Lindsay J was dealing with an application regarding the carriage of disposal of the deceased’s body, these considerations (particularly (b)-(e)) are also relevant to a case such as this, involving an application for access to the deceased’s body prior to interment.

Some of the broader historical context raised in Domenico’s affidavit, particularly regarding the plaintiff’s interaction with other members of the family, is clearly disputed. However, certain core facts regarding the discrete issues to be determined are not in dispute.

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:

On 18 March 2013, the deceased signed an additional direction concerning her funeral:

Domenico says that his mother discussed with him her wishes regarding her funeral as follows: [17]

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]

The position jointly of the defendants is set out in an email communicated from Mr Nath to the plaintiff yesterday afternoon: [20]

The plaintiff's position, which did not accept what had been proffered by the defendants, is set out in her email to Mr Nath, copied to Mr Parisi, Mr Gorick and to my Associate:

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:

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.

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.

The orders of the Court are as follows: