Re A C; M M & Anor [2017] VSC 576 (22 September 2017)

2 The Court has adopted pseudonyms in these reasons as it is mindful of protecting the privacy and identity of any relevant person that might be affected by this application as the evidence is such that a person alleged to be a child of the deceased ('the alleged child') and other family members may have no knowledge of what has been alleged.

3 AC died intestate ('the deceased') in 2015, aged 73 years. The applicants are two of the deceased's children. Letters of administration were granted to them in November 2015. The applicants are now in a position to distribute the relatively small estate to the deceased's intestacy beneficiaries.

4 The deceased was survived by his six known children, four from his first marriage and the two applicants from his relationship with their mother.

5 During the deceased's lifetime, the applicants became aware of the possibility of the existence of a seventh child of the deceased. The deceased's four children from his marriage had no knowledge of the possibility of the existence of the seventh child until after the deceased's death. It is also unclear, based on the circumstances set out at [10]- [12], whether the alleged child has any knowledge of the possibility that the deceased may have been his biological father.

6 The applicants depose that during their childhood the deceased regularly had relationships with other women, as well as with their mother.

7 The applicants became aware of the possibility of the deceased having a seventh child in the late 1970s and early 1980s when they read a bundle of correspondence dated between 1973 and 1974 addressed to the deceased. The correspondence was stored in a file in the deceased's home and was from a woman with whom he had a brief relationship in the early 1970s when she was married to another man. The correspondence from the woman made reference to there being a child from that brief relationship.

8 The applicants have no memory of the mother of the alleged child and they consider it likely that the deceased's relationship with her was for less than six months. The woman's correspondence referred to 'our baby' and she wrote that her husband had lost his job and left the house and asked the deceased for ten dollars. She subsequently told the deceased that the doctors thought she was carrying twins, that her husband was providing her with some financial support and thanked the deceased for the 'two most precious gifts'. There were also references in the correspondence to 'the twins'. In a later letter, she said she was miserable and her husband had indicated that he was unable to support her and the twins.

9 Later on she again asked the deceased for money for her medical bills. A later letter informed the deceased that she was getting on with her husband but that it would be a battle and he 'loves the kids but not her'. She asked the deceased not to try and contact her but, despite her request for no further contact, she sent a Christmas card to the deceased on 21 December 1973 that informed him that one of the twins, a girl, had died and the other was at home and healthy. In a later letter, she told the deceased that her husband had left her and that she and the alleged child were moving interstate. Two undated later cards suggest that she had another partner and two more children.

10 There was no correspondence from the deceased to the mother of the alleged child or to the alleged child. There is no further correspondence from the mother to the deceased after 1976.

11 At the time the applicants read the correspondence, they kept it to themselves. Eventually, they approached the deceased and he told them he believed he was the father of the alleged child.

12 In 1983, the mother of the alleged child called the deceased's home. The second applicant answered the call and, because she knew of the contents of the correspondence, asked the mother if she could speak to her 'brother'. The mother responded that the child did not know that the deceased was his father.

Results of the applicants' further investigations

13 At the first return of the application, the Court required the applicants to obtain the services of a genealogist in an attempt to identify the alleged seventh child, with the costs of the genealogist to be capped at $1,000.

14 The applicants retained the services of Macbeth Genealogical Service. The report dated 17 May 2017 ('the Macbeth report') provided as follows:

(a) the alleged child was born in 1973 and the registration of his birth was made three days after his birth;

(b) the alleged child's birth certificate identified his parents as the mother and her husband, that his named parents had married some five years earlier and that he was the first child of their marriage;

(c) the alleged child bore the husband's first name as his middle name;

(d) when the alleged child was a teenager, his surname was changed, with his change of surname directed by either his parent or guardian as he was not an adult at the time;

(e) while the correspondence from the mother referred to the alleged child being a twin, with the other twin, a female, having died in 1973, the birth certificate of the alleged child did not refer to him being a twin or being born of a multiple birth, which is usual in such circumstances;

(f) relevant cemetery records did not record a death of a female child with the same surname as the alleged child in the relevant timeframe;

(g) there were no registrations of multiple births either side of the alleged child's birth certificate for a child with the name of the alleged twin; and

(h) inquiries as to whether a still born child would have been registered at the Registry of Births in the relevant State indicate that by 1973 the birth of a still born child should have been registered.

15 The applicants are concerned that the contents of the correspondence from the mother of the alleged child to the deceased and the deceased's stated belief that he was the father of the alleged child give rise to a presumption of paternity of the child by the deceased. In turn, this presumption causes a concern as to whether the alleged child is in the class of persons having a beneficial interest in the estate of the deceased.

16 The question of paternity is a serious issue with the relevant standard of proof being on the balance of probabilities as in an ordinary civil proceeding.[1] Nevertheless, the consequences of any determination concerning paternity highlights the seriousness of the matters to be taken into account when determining whether or not the Court should be satisfied of a particular relevant matter. This is particularly so where the applicants have a concern that the alleged child has no knowledge that the deceased may be his biological father as evidenced by the conversation between the mother of the alleged child and the second applicant in 1983.

17 The investigations set out in the Macbeth report establish that the alleged child was born in 1973 to a woman who was then married and living with her husband and they are registered as the parents of the alleged child on his birth certificate. These facts alone raise statutory and strong common law presumptions that the alleged child is the son of his mother's husband.[2]

18 On the other hand, where the deceased admitted the paternity of the alleged child in his lifetime, the alleged child may be entitled on intestacy as the requirements of s 7(1)(b) of the Status of Children Act 1974 might be said to have been satisfied. In Re XY; Ex parte State Trustees Ltd, Byrne J described the effect of s 79(1)(b) as follows:

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.[3]

19 The only relevant admission by the deceased during his lifetime appears to be that he told the applicants he believed he was the father of the alleged child. An inference may also be drawn that the deceased accepted paternity of the alleged child based on that fact he did not destroy the correspondence alleging paternity from the mother.

20 The results of the investigations in the Macbeth report cast doubt on the veracity of the information and assertions in the correspondence from the mother of the alleged child, particularly that she had a multiple birth. The procedures and practices for the registration of births and deaths at the relevant time show that it is more likely than not that the birth of the twin of the alleged child, if it did occur, would have been registered in that timeframe, as would the subsequent death of the twin, had that twin been born alive.

21 The Macbeth report details the comprehensive steps undertaken to identify and locate the alleged child and casts significant doubt as to whether the person identified is, in fact, a child of the deceased. It is more probable that the mother was not telling the truth to the deceased about the parentage of the alleged child and him being a twin, perhaps because of the difficult circumstances set out in her correspondence. It is likely, therefore, that the deceased formed an erroneous view that he was the father of the alleged child as a result of the mother's statements.

22 Further investigations, such as DNA testing and inquiries of other family members and friends would not necessarily determine the issue conclusively. It is also necessary to be mindful, when considering whether contact should be made with the alleged child, of the possible psychological and emotional damage that could be caused to him and to his other family members if he has no knowledge of the allegations of his paternity

23 In the circumstances, it is highly probable that the deceased was not the father of the alleged child.

(a) The applicants be at liberty to distribute the net residuary estate of AC, deceased, between the six children of the deceased in equal shares forthwith.

(b) Pursuant to r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015, no person may inspect or obtain a copy of a document on this file otherwise than by order of the Court.

(c) The applicants' costs of and incidental to the application be paid out of the estate of AC, deceased, on an indemnity basis.

[1] G v H [1994] HCA 48; (1994) 181 CLR 387, 391 (Brennan and McHugh JJ) and 399 (Deane, Dawson and Gaudron JJ); Re Della Vedova [2012] VSC 341, [20] (14 August 2012); Farnell v Penhalluriack (No 2) [2008] VSC 214, [4]; Helebrant v Perdic [2010] VSC 580, [25], [28].

[2] Re XY; Ex parte State Trustees Ltd [2001] VSC 89, [5] (1 May 2001) referring to the Status of Children Act 1974, ss 5, 8(1) and Cocks v Juncken [1947] HCA 16; (1947) 74 CLR 277, 294 (Dixon J).

[3] [2001] VSC 89, [16].