Two brothers who were killed in a horror crash six weeks ago are now a step closer to being laid to rest, after their feuding parents faced off in court on Wednesday.
Sheldon, 6, and Shayne Shorey, 7, have been lying in the local morgue ever since an allegedly unlicensed driver mowed them down at Wellington, in central western New South Wales, on January 5.
The tragic story that shocked Australia took an even sadder twist in the weeks after as their separated parents were unable to agree on where, or even if, they should be buried.
Shayleen Frail – who was walking to the local pool with her two sons when they died – wants them to be buried close to her in Wellington.
But their father Joseph Shorey, who now lives in Queensland, believes cremation will allow both parents – and also their older brother – to continue to feel close to the two boys.
The NSW Supreme Court heard on Wednesday that Ms Frail believes cremating both sons was not in line with Aboriginal culture, claims Ms Shorey’s legal team refuted.
Sheldon (left), 6, and Shane (right), 7, were killed when an out-of-control car allegedly driven by Jacob Steven Donn, 35, ploughed into them on Warne Street, Wellington, on January 5
Joseph Shorey (left) and Shayleen Frail (right) faced off in the NSW Supeme Court on Wednesday over how to farewell their sons, who remain in a morgue six weeks on from the horror crash
Police allege Donn was performing burnouts on Warne Street in his red Holden (pictured) when he lost control, mounted the gutter and hit the group of five pedestrians
Mark Anderson, appearing for Mr Shorey, told Justice John Sackar that the evidence of Aboriginal elders is that in some communities cremation is a ‘regular occurrence’.
‘Cremation is part of Aboriginal culture and the evidence… is that cremations regularly occur,’ he told the court.
‘(It allows for) both parents to be able to mourn the loss of these two children in a culturally sensitive way.’
In an affidavit filed with the court, Ms Frail claimed however that she feared her sons would ‘suffer’ further.
‘I believe they have already suffered and that cremating their bodies after death is putting them through more pain and suffering,’ she said.
The court heard that for the year leading up to their tragic deaths, the two brothers had been living in Queensland with their father.
The move north came after Ms Frail was jailed on charges of stealing and dishonestly obtaining financial advantage by deception in 2017.
‘The plaintiff’s (Ms Frail) issues with drug use and incarceration effectively attenuated the relationship she had with her children,’ Mr Anderson said.
The boys’ father Joseph Shorey (pictured in blue) made an emotional visit to the scene a day after the crash, having driven through the night from his Queensland home
Both parents have told how their children were all incredible sporty and loved the outdoors (Pictured on their scooters above are Shane, left, and Sheldon, right.
Ms Frail (pictured) spent 11 days in hospital after suffering a broken leg and spinal injuries in the crash
But Mr Jones claimed Ms Frail’s criminal history was not an important factor when deciding on what to do with the boys’ bodies.
‘Your Honour has an abundance of detail about the unfortunate life circumstances of the plaintiff (Ms Frail),’ Mr Jones said.
‘It does not diminish her level of love, or care, or affection she had for them.
‘It is not a relevant consideration when Your Honour turns to the question of who is responsible for their burial.’
Mr Jones told the court that evidence relied upon by Mr Shorey of other Aboriginal cultures ‘regularly’ performing cremations was irrelevant, as the community around Wellington had traditions and cultural views that were unique to it.
While other Aboriginal tribes throughout Australia may cremate their deceased, the Wellington community did not, he claimed.
‘Whilst those views may be properly held, they are not the views that the deceased children were brought up and educated in, and are not the views of the elders of the Wellington community,’ he said.
Donn is facing a total of 14 charges, including dangerous driving occasioning death and drug possession
‘The deceased children not only identified as Aboriginal, but were also part of the Wellington Aboriginal community and the unique sense of beliefs that are attached to those people.’
In his affidavit, Mr Shorey claimed he was raised by Aboriginal communities and had a ‘white outside’ and a ‘black heart inside’.
Justice Sackar told the court he understood the complexities of the case but would reserve his judgement until next week.
‘I fully appreciate everybody’s grief and it is incumbent on me to move this matter on,’ he said.
‘I will give my decision very early next week and no later than the middle of next week.’
Jacob Steven Donn is next due to return before Dubbo Local Court on March 10.