Re Estate of Della Vedova (dec'd) [2012] VSC 341 (14 August 2012)

2 The application was initially supported by an affidavit of Reginald Radford sworn on 15 March 2012. Andrew Bird swore an affidavit on 14 March 2012 in which he stated that the contents of Reginald Radford's affidavit were "true and correct in every particular".

3 Ronald Della Vedova died intestate on 17 February 2010. His brother, John Andrew Della Vedova, who was also known as Jack Della Vedova, died on 15 April 2010. Reginald Radford said in his affidavit that "enquiries have suggested that neither Jack nor Ron married or left children". Unlike his brother, John Della Vedova left a will, which was dated 14 April 2010. Under that will, he gave:

(a) certain farming land known as Farrell's to his share farmer, Desmond Keith Wood, together with any farming machinery and equipment located on those properties at the date of his death absolutely;

(b) other identified farming land to his share farmers, Leigh Funcke and Ross Funcke, together with any farming machinery and equipment located on that property at the date of his death as tenants in common in equal shares absolutely;

(c) $1,000 to the Parish Priest at Donald for the saying of masses for the repose of his soul; and

(d) the balance and residue of his estate to the Salvation Army and World Vision as tenants in common in equal shares absolutely.

4 John Della Vedova appointed Andrew Bird, who was his accountant, and Reginald Radford, who was his solicitor, as executors of his will. They were subsequently granted probate of John Della Vedova's will on 17 December 2010. In their capacity as the executors of John Della Vedova's estate, Andrew Bird and Reginald Radford also applied for and were granted letters of administration of Ronald Della Vedova's estate on 17 March 2011.

5 The administration of Ronald Della Vedova's estate would normally have been straightforward given that the closest next of kin was his brother, John. Pursuant to s 52 of the Administration and Probate Act 1958 ("the APA") which sets out rules governing distribution on intestacy, John, and subsequently his estate, would have been entitled to the whole of Ronald's estate. However, around the time of John's death, Reginald Radford was contacted by Peter Radford, for and on behalf his mother, Fay Irene Radford, to enquire about the estates of both Ronald and John. It should be noted that Peter Radford and Fay Irene Radford are not related to Reginald Radford despite sharing the same surname. Peter Radford indicated to Reginald Radford that he believed that his mother and Ronald and John Della Vedova all had the same mother and that she was therefore their half-sibling. Peter Radford submitted to the executors/administrators a number of documents in support of his mother's claim. Given their importance, it is necessary to set out in some detail the relevant information contained in them.

Born Alice Taylor 25.8.1921 at Warragul Vic. Fostered out at very early age to Barbara and Edward Henry David Rice of Camberwell. Married under the name of Fay Irene Rice.

7 Secondly, there was a copy birth extract recording that on 25 August 1921 Alice Taylor was born in Warragul. The mother was stated to be Helena Alice Taylor, aged 22. It was said that she had been born in Toongabbie, Victoria. The name of the father was left blank.

8 Thirdly, there was a copy certificate of marriage of Andrew Della Vedova, aged 36, and Helena Teresa Taylor aged 27. The ceremony had taken place at the Catholic Church in Inglewood on 3 November 1926. The bride was described as a "spinster" who usually resided in Glenalby and who had been born in Toongabbie.

9 Fourthly, there was a copy death certificate of Andrew Della Vedova, aged 78, who usually resided at Laen, recording that he died on 13 July 1968 and that he was survived by his wife and his two sons, John and Ronald. The death certificate also stated that he had married Alice Helena Taylor at Inglewood, Victoria, when he was aged 38 years. John was named on the death certificate as the informant.

10 Fifthly, there was a copy death certificate of Alice Helena Della Vedova, aged 83, who usually resided at Laen, recording that she died on 27 May 1982. The death certificate also stated that she had married her late husband, Andrew Della Vedova, at Inglewood, Victoria, when she was aged 27 years, that her maiden name was Taylor and that she was survived by her two sons, John and Ronald. John was named on the death certificate as the informant.

11 Sixthly, there was a copy death certificate of Ronald Albert Della Vedova, aged 73, recording that he died on 17 February 2010 from "multiple injuries". The death certificate also stated that his parents were Andrew Della Vedova and Mlina Alice Della Vedova (maiden name Taylor) and that he never married and did not leave any children. John was named on the death certificate as the informant.

12 Finally, there was a copy death certificate of John Andrew Della Vedova, aged 82, recording that he died on 15 April 2010. The death certificate also stated that his parents were Andrew Della Vedova and Alice Helena Della Vedova (maiden name Taylor) and that he never married and did not leave any children.

13 Reginald Radford deposed that after considering this material he made enquiries with the Coroner's office and was advised that DNA material from Ronald Della Vedova was held by the Victorian Institute of Forensic Medicine. He then arranged for a buccal or mouth swab to be taken from Fay Radford and sought a report from the Victorian Institute of Forensic Medicine as to the likelihood of any relationship between Fay Radford and Ronald Della Vedova. The test results were contained in a Report of Scientific Testing dated 28 October 2011, a copy of which was exhibited to Reginald Radford's affidavit. The Report, which was signed by Dadna Hartman, the Manager, Molecular Biology, Chief Molecular Biologist of the Victorian Institute of Forensic Medicine, stated as follows:

RESULTS OF TESTING

No differences were detected between the mitochondrial DNA of Fay Radford and that of [Ronald Della Vedova].

Mitochondrial DNA is maternally inherited. That is, all siblings have the same mitochondrial DNA, which is the same as that of their mother. Cousins through a maternal line would also have the same mitochondrial DNA.

The mitochondrial DNA profile (or haplotype) obtained was not seen in a mtDNA Population Database (EMPOP) containing 14,847 haplotypes.

14 Dr Hartman swore an affidavit on 20 April 2012 which was filed in this proceeding by the plaintiffs. In that affidavit Dr Hartman said:

Mitochondrial DNA is an additional type of DNA found in human cells, but unlike nuclear DNA, it is maternally inherited. That is, it is passed down from a mother to all her children, daughters will pass on the same mitochondrial DNA to their children, and so on. Therefore, maternally related individuals are expected to share the same mitochondrial DNA profiles whilst individuals who are not maternally related are expected to have different mitochondrial DNA profiles. As individuals who are maternally related will share the same mitochondrial DNA profile, mitochondrial DNA analysis can only be used as an inclusion or exclusion tool and will not give a definitive answer. For example, mitochondrial DNA analysis can be used to compare two individuals to determine if they can or cannot be excluded as being maternal relatives. In addition, the occurrence of a mitochondrial DNA profiles [sic] can vary in a given population. Some mitochondrial DNA profiles are either common or rare in different human populations. The mitochondrial DNA profile described in the attached report was not seen in a mitochondrial DNA database of more than 16,000 profiles, this could be interpreted as indicating the profile is rare.

15 Also exhibited to Reginald Radford's affidavit was a copy of the Victorian Institute of Forensic Medicine form completed by Peter Radford on behalf of Fay Radford consenting to the taking of the bodily sample for the purposes of DNA testing. Two points should be noted. First, the form contained an affidavit to be sworn or affirmed on the day the donor's sample was taken. That affidavit was sworn by Peter Radford as "the son/enduring power attorney" of Fay Radford in Part 2 of the form. According to the form, "Part 2 must be completed on behalf of a child or adult who is not capable of swearing or affirming the affidavit". Secondly, the date of birth of Fay Radford was stated in the form to be 24 August 1921. This coincided with the date of birth given on her driver's licence, a copy of which was attached to the form.

16 The claim by Fay Radford that she was a half-sister of Ronald and John Della Vedova having been brought to the notice of the administrators of Ronald Della Vedova's estate, they lost the protection which they would otherwise have had pursuant to s 6 of the Status of Children Act, if they had distributed the whole of Ronald's estate to John. Section 52(1)(f)(vii) of the APA provides that for the purposes of distribution on intestacy "there shall be no difference ... between relationship of the whole blood and of the half blood". Thus, the effect of the declaration sought by the plaintiffs is that Fay Radford, being a half-sister of Ronald, would be entitled to a half share in his intestate estate, rather than the whole estate passing to John Della Vedova, to be distributed according to his will.

17 In order to ensure that interested persons who might be affected by the declaration sought were given an opportunity to be represented in this proceeding, on 30 March 2012 the Court ordered that all relevant material be served on the major beneficiaries under John Della Vedova's will, and on other persons identified by the plaintiffs including Fay Radford and Peter Radford. There was no appearance by any of those persons on the adjourned hearing date.

18 The following sections of the Status of Children Act 1974 are relevant to this application:

(1) Where the name of a parent of a child is entered in the register of births in the Register maintained under the Births, Deaths and Marriages Registration Act 1996 in relation to the child a certified copy of the entry purporting to be made or given under section 46 of that Act shall be prima facie evidence that the person named as a parent is a parent of the child.

...

(4) Subject to subsection (1) of section 7 a declaration made under section 10 shall for all purposes be conclusive proof of the matters to which it relates.

...

1. Application to Supreme Court for declaration of parentage

(1) Any person (the first person) who-

(a) claims that any named person is a parent of the first person's child; or

(b) claims that a relationship of parent and child exists between the first person and any other named person; or

(c) has a proper interest in the result who wishes to have a determination whether the relationship of parent and child exists between two named persons-

may apply to the Supreme Court for a declaration of parentage and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of parentage whether or not the parent or the child or both of them are living or dead.

...

19 The plaintiffs relied on s 10(1)(c) of the Status of Children Act as the basis for their standing to make the application. I accept that they are persons who have "a proper interest in the result" as the answer to the question whether the relationship of parent and child existed between Alice Helena Della Vedova and Fay Irene Radford will impact on the way in which they are to administer the estate of Ronald Della Vedova.

20 In G v H, the question of paternity was described by the High Court of Australia as a "serious" issue or matter.[1] In my opinion, a similar description applies to a question of maternity, as in this case. However, a description of that kind does not carry with it any notion that the higher standard of proof, expounded in Briginshaw v Briginshaw[2] when the question involves a grave allegation, is to be applied in determining whether two persons were related by parentage. In two recent decisions by judges of this Court, Bell J in Farnell v Penhalluriack (No 2)[3] and Beach J in Helebrant v Perdic,[4] it has been held following G v H that "on the balance of probabilities" is the relevant standard of proof in applications for declarations under the Status of Children Act. In my respectful opinion, the position was accurately stated by Beach J in Helebrant v Perdic, where his Honour said:[5]

However, as was noted by Bell J in Farnell v Penhalluriack (No 2), the High Court held in G v H that where the evidence established that a particular person could be the father of a child, the question of actual paternity should be approached free of restraints inherent in the view that that question involved a grave or serious allegation. Bell J held that the paternity provisions of the Status of Children Act were analogous to the paternity provisions of the Family Law Act considered by the High Court in G v H. With respect, I agree.

...

Whilst the issue of paternity is of undoubted importance and significance, there is no reason in this case to approach the question of paternity as if it was a matter of such "gravity" as to require an analysis of the evidence different from the sort of analysis that would be undertaken in any ordinary civil proceeding. Nevertheless, the seriousness of the consequences of the granting of the declarations sought by the plaintiff under the Status of Children Act dictate that they be taken into account when determining whether one is satisfied of a particular relevant matter. [Footnotes omitted]

21 Therefore, the relevant standard of proof that is to be applied in determining whether the relationship of parent and child existed between Alice Helena Della Vedova and Fay Irene Radford is on the balance of probabilities as in any ordinary civil matter.

22 The first issue to be determined is whether Alice Helena Della Vedova, the mother of Ronald and John, according to her death certificate and that of her husband and son John, was the same person as the Helena Alice Taylor who gave birth to Alice Taylor on 25 August 1921. Certain discrepancies in the documentary records were noted by counsel for the plaintiffs. They were:

(a) the woman who married Andrew Della Vedova was named as "Helena Teresa Taylor" in the marriage certificate;

(b) the mother of Ronald was named as "Mlina Alice Della Vedova" in his death certificate;

(c) the given names of the mother of Alice Taylor are reversed compared to the given names of the mother of Ronald and John; and

(d) the absence of any issue, other than Ronald and John, on the death certificate of their mother.

23 On the other hand, there are a number of points in favour of such a conclusion. They are:

(a) the mother of Alice Taylor and the woman who married Andrew Della Vedova were both said to have been born in Toongabbie;

(b) the age of the mother of Alice Taylor in 1921 corresponded with the age of the woman who married Andrew Della Vedova in 1926 and with the age of Alice Helena Della Vedova when she died in 1982;

(c) the two given names of the mother of Alice Taylor were the same, albeit reversed, as the two given names of the mother of Ronald and John, according to three of the four death certificates; and

(d) the mother of Alice Taylor had the same maiden name as the mother of Ronald and John, according to the marriage certificate and all four death certificates.

24 In my opinion, the discrepancies are not that significant compared to the points in favour. The different name in the marriage certificate could be explained by personal choice at the time. Significantly, Mrs Della Vedova was identified in three of the four subsequent death certificates as Alice Helena Della Vedova. The different name of Mrs Della Vedova in Ronald's death certificate could be explained by a recording error as I consider that "Mlina" was likely to be a misreading of "Helena". Next, I consider the fact that these women had the same two given names as more important than the fact that at one time their order was reversed. Finally, it is hardly surprising that the death certificate of Alice Helena Della Vedova did not record that she had had what would have been described at the time as "an illegitimate daughter" some years prior to her marriage. The informant, her son John, may well not have known about what had probably been a closely guarded secret.

25 I am, therefore, satisfied on the balance of probabilities that Alice Helena Della Vedova, nee Taylor, was the mother of Ronald and John Della Vedova and that she was the same person as the Helena Alice Taylor who gave birth to Alice Taylor on 25 August 1921.

26 The second issue to be determined is whether the Alice Taylor born on 25 August 1921 is Fay Irene Radford. The documentary records are less helpful in this regard. The provenance of the handwritten note forwarded by Peter Radford to Reginald Radford was not made clear. In particular, I do not know whether it was written by Fay Radford. This omission points up one of the problems with this application, namely the absence of evidence from Fay Radford herself. Whilst she obviously cannot give direct evidence of her birth and the circumstances of her early life, it would have been helpful to read what she had been told about these topics and how she came to believe that she was related to Ronald and John Della Vedova and why she gives her date of birth as 24 August 1921, not 25 August 1921. The fact that Peter Radford swore the affidavit regarding the consent to the DNA testing would suggest that Fay Radford, who is now aged nearly 91, might not have been capable of swearing an affidavit in this proceeding. Nevertheless, if that be the case, an affidavit from Peter Radford might have addressed some of the above issues.

27 Probably the most important evidence on this second issue is the result of the DNA testing. The Report from the Victorian Institute of Forensic Medicine established that Fay Radford and Ronald Della Vedova were maternally related, which could mean that they had the same mother. However, the DNA evidence is also consistent with Fay Radford and Ronald Della Vedova being maternally related because they shared the same maternal grandmother, with Fay Radford's mother being a sister of Ronald Della Vedova's mother. Here again, further evidence might have been of assistance. For example, the death certificate of Alice Helena Della Vedova's mother, Helena Ries, would have revealed whether she had given birth to any daughters. If not, then the DNA evidence would be considerably stronger because there would have been no sister of Ronald's mother.

28 Nevertheless, the DNA evidence is, in my opinion, strongly persuasive. It is significant that Fay Radford's unanticipated claim that she was the half-sister of Ronald and John Della Vedova was supported by the DNA testing in the sense that it showed that she and Ronald were maternally related. The odds of this occurring by chance seem to me to be extraordinarily high.

29 I am not prepared to reject Fay Radford's claim merely because she apparently gives her date of birth as 24, not 25, August 1921. As Fay Radford seems to have been brought up by her foster parents, Mr and Mrs Rice, it is not all that surprising if some confusion arose as to the actual birthday of Alice/Fay. After all, neither Mr nor Mrs Rice would have been present on that occasion.

30 In addition, I also infer that if any person was to attach significance to an event in Alice Helena Della Vedova's life, which happened nearly 91 years ago and prior to her marriage to Andrew Della Vedova, that person is likely to be the daughter to whom Alice Helena Della Vedova gave birth.

31 I am, therefore, satisfied on the balance of probabilities that Fay Irene Radford was the daughter to whom the mother of Ronald Della Vedova gave birth in 1921. Despite there being some gaps in the evidence, once it was established that Ronald Della Vedova's mother had a child on 25 August 1921, it seems to me that this conclusion should follow given the strength of the DNA evidence and the temporal proximity in the documentary evidence between that date and the date when Fay Radford, who took an interest in that birth, was said to have been born.

32 On all of the evidence before me, I am satisfied on the balance of probabilities that Ronald Della Vedova's mother was the same person as the Helena Alice Taylor who gave birth to Alice Taylor on 25 August 1921, and that Fay Irene Radford is the same person as Alice Taylor. It follows, therefore, that the relationship of mother and child existed between Alice Helena Della Vedova and Fay Irene Radford. Accordingly, I will make the declaration sought by the plaintiffs.

[1] [1994] HCA 48; (1994) 181 CLR 387, 391 (Brennan and McHugh JJ) and 399 (Deane, Dawson and Gaudron JJ).

[2] [1938] HCA 34; (1938) 60 CLR 336.

[3] [2008] VSC 214.

[4] [2010] VSC 580.

[5] [2010] VSC 580 [25] and [28].