In re XY; ex parte State Trustees Ltd [2001] VSC 89 (1 May 2001)

"1. Whether any, and if so what, further steps should be taken by the plaintiff in its capacity as the administrator of the intestate estate of the abovenamed Deceased to investigate and ascertain whether [AB] (a minor who was born on 17 November 1984) is a child of the Deceased. 2. An order that, in the absence of any further evidence showing that [AB] is a child of the Deceased, the plaintiff is justified in administering and distributing the estate of the Deceased on the footing that the only child of the Deceased who survived him is [M] who was born on 16 December 1995."

9. The deceased was born in 1941, married in 1969 and divorced in 1977. There were no children of the marriage and the deceased did not remarry. He died on 16 November 1999 leaving surviving him two sisters and a brother and a natural daughter, M, born in 1995 of a woman with whom he had had a relationship since the early 1990s.

12. Pursuant to the provisions of Part 1 Division 6 of the Administration and Probate Act 1958, the whole of the estate of the deceased will, subject to the rights, if any, of AB, pass to his natural daughter. Each of the former wife, the brother and sisters and the former partner of the deceased have made application seeking provision from his estate pursuant to Part 4 of the Administration and Probate Act 1958.

15. AB was born in 1984 to a woman who was then married and living with her husband. These persons are registered as the parents of AB on her birth certificate. These facts alone raise statutory[1] and strong common law[2] presumptions that she is the daughter of her mother's husband. The mother of AB has since died and AB is living with her father.

18. In the course of its investigations it has come to the attention of State Trustees that the deceased might have had another child and that AB is that child. The sources of this information were a former employee of the deceased and a friend of the deceased. When pressed for details the friend denied that he had said any such thing. In a letter to the State Trustees the friend said he was "aware of rumours (from others), suggesting that [the deceased] may have been the father of such a girl but [the deceased] never acknowledged or mentioned such a child to me".

21. The employee was interviewed by a State Trustees representative on 19 February 2001. She told the representative that the name of the child was AB and she identified the child's mother and the mother's husband. Apart from the fact that the child had red hair, as did the deceased, the account of the interview does not provide any factual basis for the employee's belief or assertion as to the child's paternity.

24. The employee also told the representative of another woman who knew of the existence of the second daughter. On the same day, 19 February 2001, the representative spoke by telephone to this woman who said that she had been a patient of the deceased and a friend of AB's mother. She said that, in the 1980s, the mother told her, so far as is here relevant, that she, the mother, had been having an affair with the deceased and that her fourth child, AB, had red hair, the same as the deceased's. The woman also told the representative that she last saw the deceased in or about 1993 at which time he told her that he believed that he was AB's father.

27. Following this, the State Trustees representative on 6 March 2001 interviewed the husband of AB's mother. I shall refer to him as AB's father notwithstanding the suggestions that he may not be her natural father. In the conversation the father told the representative that, as far as he was concerned, he was the guardian and father of AB. He refused to consent to AB providing a sample to enable a DNA match with the deceased to be undertaken. Later, he rejected that the deceased was the father of AB.

30. In the course of this interview AB's father spoke of AB as a volatile and fragile child. He said that she had threatened to kill herself and that she exhibited a number of behavioural problems. He expressed the apprehension that, if AB were to learn that someone else was her father and that he was deceased, like her mother, this could be disastrous for her.

33. Against this background, State Trustees seeks the advice of the court as to the appropriate manner in which to carry out its obligation to administer the estate taking into account the possible entitlements of the child, AB.

36. None of the brother and sisters of the deceased, nor his former wife, nor his partner, has been informed about the suggestion that the deceased may have had a second child nor of the enquiries of State Trustees. So far as State Trustees is concerned, AB has been told nothing of these matters. None of them, nor AB's father nor AB herself have had notice of this application.

39. Having set out at some length the circumstances which have led to this application, I can deal shortly with the first matter upon which the advice of the court is sought. Two further lines of enquiry have been suggested: to pursue the course of having a DNA sample of AB tested to see if paternity is established and, second, to pursue the investigation among persons who might know more about the relationship between the deceased and AB's mother.

42. As to the DNA question, the immediate problem is that AB is under age and her father will not agree to a sample being taken from her. It was not suggested that the court had any coercive power in the present circumstance nor that it would be proper for State Trustees to take a sample surreptitiously. It is said that it may not be practical to defer this question until AB attains the age of majority because the DNA sample of the deceased will not be retained by the testing authority after September 2001. I doubt whether this is in fact a realistic impediment to a deferral, but it is not necessary that I pursue this.

45. A more fundamental objection to pursuing this line of enquiry is that it would be, surprisingly, of no value for present purposes. Section 7(1) of the Status of Children Act 1974 provides as follows:

"7. Recognition of Paternity (1) The relationship of father and child and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or to the construction of any will or testamentary disposition or of any instrument creating a trust or for the purpose of a claim under Part IV of the Administration and Probate Act 1958, be recognised only if - (a) the father and the mother of the child were married to each other at the time of its conception or at some subsequent time; or (b) paternity has been admitted (expressly or by implication) by or established against the father in his lifetime and, if the father is a beneficiary of the child, paternity has been so admitted or established while the child was living."

49. Paragraph (b) in effect permits paternity to be established only by admission or otherwise in the lifetime of the supposed father. It would seem that, however conclusive might be a DNA match with a sample taken now from AB, this would not for relevant purposes permit State Trustees to distribute a share to AB as a child of the deceased, at least without evidence of an admission of paternity. Given the relative reliability of modern DNA matching compared with admissions of paternity, this may be a surprising result but it is an inescapable consequence of the words of the statute.

52. The second line of enquiry for State Trustees is for it to seek to discover if the deceased in his lifetime has ever admitted paternity of AB. As things stand at the moment, the only possible admission is that referred to in paragraph [8]. As I understand it, State Trustees seeks the advice of the court as to whether it should put this to one side or pursue the matter further and, if so, what steps it should take.

55. In my opinion this is a matter for the judgment of the administrator; it is not a matter upon which the court can or ought express a view.

58. The second question concerns the entitlement of State Trustees to distribute the estate of the deceased on the basis that M is his only child, that is, on the basis that AB is not his child. I was referred to a number of cases in which the advice of the court had been sought upon matters which lay within the discretion of the trustee. None of them is really of very much assistance here. The administrator has a duty, not a discretion, to investigate the entitlement of a claimant to share in the estate of the deceased. In certain circumstances it may be permitted by statute[3] or court order[4] to distribute on a certain footing. I am far from certain however that this is a case in which the court will provide to the administrator the comfort it seeks. In any event I decline to make any order, if only on the basis that there is insufficient material before me.

61. Accordingly, I decline to give any answer to the questions submitted in the originating motion.

64. I have mentioned at the commencement of these reasons that I would not identify the supposed child of the deceased nor the deceased. I propose, therefore, that I should make an order directing that there be no publication of the identity of the deceased or of the child and that this case be published only as In re XY; ex parte State Trustees Ltd. I do so to protect the privacy of AB in the circumstances which have been disclosed to me. I should direct also pursuant to Rule 28.05(2) that no person may inspect or obtain a copy of a document on this file otherwise than by order of the court.

[1] Status of Children Act 1974 (Vic) ss. 5, 8(1).

[2] See Cocks v Juncken [1947] HCA 16; (1947) 74 CLR 277 at 294ff, per Dixon J.

[3] For example, Administration and Probate Act 1958, s. 30.

[4] See, for example, In re Benjamin [1902] 1 Ch 723.