Sanders v Sanders

THE NATURE OF THE CASE

1. The present judgment deals with an application by the mother of a deceased young adult male, claiming against the deceased's father an entitlement to the whole of the deceased's estate. That claim, if vindicated by the making of a distribution order, will (to the extent that additional provision is made for the mother) displace the father's entitlement, under the general intestacy rules in the Succession Act, to one half of the estate.
2. There is some, but not much, factual disputation between the parties. The defendant has put the plaintiff to proof about the existence, and content, of "the laws, customs, traditions and practices of the Indigenous community or group to which [the deceased] belonged [the Nucoorilma Clan of the Gomeroi People from Tingha, near Inverell in northern NSW]"; but the evidence adduced by her is the only affirmative evidence bearing on the question.
3. Upon the proper construction of Part 4.4 of the Succession Act, the expression "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged" describes a general understanding within an Indigenous community of rights and obligations of an individual bearing upon distribution of his or her intestate estate: Re Estate Wilson at [139]-[141]. Although Part 4.4 does not use the word "family", the policy concerns that gave rise to its enactment, and its legislative purpose or object, point towards an Indigenous concept of "family" as an important, if not decisive, element of any consideration of "the laws, customs, traditions and practices" of an Indigenous community: Re Estate Wilson at [152].
4. The plaintiff deposes, and has adduced corroborative evidence, that under "the traditional customary lore" of the Nucoorilma Clan of the Gomeroi People (as she describes "the laws, customs, traditions and practices" of the community of herself, her son and his father): 1. the next of kin of a deceased person should receive the full benefit of the deceased's estate. 2. the next of kin of a deceased person who dies without children, and without a spouse, is the person who has borne responsibility for, cared for, and provided for the deceased person throughout his or her life. 3. the plaintiff is entitled to the full benefit of her late son's estate, because he died without children, and without a spouse, and she bore responsibility for, cared for and provided for him throughout his life.
5. The corroborative evidence adduced by the plaintiff includes: an affidavit affirmed by her mother (who claims expertise bearing upon the traditional customary lore of the Nucoorilma Clan of the Gomeroi People); a letter signed by the Chief Executive Officer of the Local Aboriginal Land Council of Anaiwan; a letter signed by the Executive Committee Treasurer of the Mooki and Bassendeen Association Inc, the applicant for the Gomeroi Native Title Group; a letter signed by "the Aboriginal Elders of Tingha and Inverell"; a letter, in similar terms, signed by people who describe themselves as "the community of Tingha and Inverell"; and extracts from publications. The plaintiff also read an affidavit of a non-Indigenous friend who deposed to the matrilineal character of the Nucoorilma Clan, and the deceased's identification with that community.
6. The letter from the Land Council goes so far as to suggest that, to allow any entitlements from the deceased's estate to pass to anybody other than the plaintiff "would be morally and culturally wrong", she more than anyone else deserving to benefit from the deceased's estate.
7. The core questions which arose for the Court's consideration on the parties' written opening submissions in these proceedings are: 1. What is the nature of the evidence required to establish, as a fact, the existence, and content, of "the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged"? Is it sufficient that there be unarticulated declarations of "traditional customary lore" by Elders and members of the community and Indigenous representative bodies? Is the Court bound by opinions expressed by people who claim expertise? 2. What is meant by the requirement in section 134(4) of the Succession Act that no distribution order be made unless the Court is satisfied that the terms of the order are, "in all the circumstances, just and equitable"? Is the expression "in all the circumstances, just and equitable" confined to a consideration of "the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged"? 3. What is the relevance, if any, of the deceased's recognition of an obligation to respect, and to provide material assistance for his father, notwithstanding any shortcomings on the part of the father? 4. To what extent, if at all, can, and should, any entitlements the father might have to a share in the deceased's estate be diminished by reference to "conduct disentitling" (or, more broadly, moral unworthiness) on his part? 5. To what extent, if at all, can, or should, financial needs on the part of the father justify a maintenance of his entitlements under the general rules of intestacy?
8. In the course of the hearing of the proceedings, attention focused primarily on the first two questions. The others assumed the character of ancillary questions. Of particular note, the plaintiff disclaimed any intention to submit that the defendant had been guilty of anything that could be characterised as "conduct disentitling" him from participation in the deceased's estate; and the defendant disclaimed any intention to submit that his claims on the bounty of the deceased should be assessed in a manner analogous to the assessment of a claim for family provision relief. Those disclaimers focused attention, constructively, upon the plaintiff's contention that she was the deceased's primary carer throughout his life; and upon the defendant's contention that, in all the circumstances, he could not, in justice or equity, be excluded from participation in the deceased's estate.

THE LEGISLATIVE SCHEME

1. Chapter 4 (sections 101-140) of the Succession Act governs distribution of the estate of a person who dies, wholly or partially intestate, with property in NSW. A close analysis of Part 4.4 of the Act, in the context of the Act as a whole, can be found (together with the text of Part 4.4) in Re Estate Wilson.
2. Part 4.1 (sections 101-109A) of the Succession Act deals with topics, including definitions, preliminary to subsequent Parts of Chapter 4. An "intestate" is a deceased person who does not leave a will, or who leaves a will which does not dispose effectively of all of his or her property: Succession Act 2006, section 102. An "intestate estate" means, in effect, property that is not effectively disposed of by will: Succession Act, section 101.
3. Parts 4.2 and 4.3 (sections 110-126) of the Succession Act contain general rules governing the distribution of an intestate estate. Part 4.2 governs the entitlements of a surviving "spouse" (broadly defined to accommodate multiple relationships) and Part 4.3 governs distribution of an estate among other relatives.
4. Relevantly to the current proceedings, section 128 (in Part 4.3) of the Succession Act provides that, if an intestate leaves no spouse and no issue (a technical expression which includes grandchildren as well as children), but two parents, the parents are entitled to the estate in equal shares.
5. Part 4.4 (sections 133-135) of the Succession Act empowers the Court, upon application by a qualified person, and in defined circumstances, to make a "distribution order" affecting the deceased estate of an Indigenous person who has died wholly or partially intestate.
6. The necessity for Part 4.4 arises from the fact that, in an Indigenous community, the concept of "family" relationships may differ radically from the general concept of "family" relationships upon which Parts 4.2 and 4.3 are predicated: GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, Australia, 2nd ed, 2017), para [9.76], citing (as does Re Estate Wilson at [106]-[107]) the writings of Professor Prue Vines.
7. The difference is commonly said to be that, whereas family relationships in a non-Indigenous community are "linear" (proceeding from parents to children in each generation), Indigenous family relationships may be "collateral" in the sense that a child might be nurtured by a sibling of his or her parents, or by others within their community, rather than by or in addition to his or her parents. By way of illustration, using non-Indigenous descriptors, an Aboriginal child might commonly be raised by an uncle, aunty or grandparent, rather than by a parent or by a parent only. In what is said to be a concrete example of his adherence to this style of society, the deceased named a maternal uncle as his "Emergency Contact/Next of Kin" on a staff record when, in February 2015, he commenced a period of employment with Inverell Shire Council.
8. The object of Part 4.4 is (by means of vesting a discretionary power in the Court) to do what is just and equitable in the particular circumstances of an individual case to accommodate such factors in administration of an Indigenous intestate estate: Re Estate Wilson at [126].
9. Section 101 (in Part 4.1) of the Succession Act defines an "Indigenous person" as a person who: (a) is of Aboriginal or Torres Strait Islander descent; and (b) identifies as an Aboriginal person or Torres Strait Islander; and (c) is accepted as an Aboriginal person by an Aboriginal community, or as a Torres Strait Island by a Torres Strait Islander community.
10. This definition, with its three elements, is consistent with the observations of Merkel J in Shaw v Wolf (1998) 83 FCR 113 at 117-122 about the character of an individual's self identification, and community acceptance, as Indigenous. Both concepts focus upon interaction between people, living in "community" with one another. Both concepts involve a sense of mutual belonging binding an individual to a community.
11. By operation of section 133(1) of the Succession Act, an application for a distribution order can be made by: 1. the personal representative of an Indigenous intestate (that is, an administrator or, in the case of a partial intestacy, an executor of the deceased's estate); or 2. a person "claiming to be entitled" to share in the intestate estate "under the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged".
12. An application for a distribution order must be accompanied by a "scheme for distribution" of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged: Succession Act, section 133(2).
13. In formulating the terms of a distribution order the Court, must have regard to: 1. the scheme for distribution submitted by the applicant: Succession Act, section 134(3)(a). 2. the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged: Succession Act, section 134(3)(b).
14. However, the Court cannot make a distribution order "unless satisfied that the terms of the order are, in all the circumstances, just and equitable": Succession Act, section 134(4).
15. The effect of a distribution order is to vary the operation of the general rules (found in Parts 4.2 and 4.3 of the Succession Act) governing distribution of an intestate estate: Succession Act, section 135.
16. The power to make a distribution order is thus a special power to dispense with the general intestacy rules in the administration of an Indigenous person's estate.
17. The general rules have been amended from time to time, to reflect current social relationships in the character of "family". Under those rules, as presently drafted, there is a standard scheme of distribution that recognises an order of priority that favours, in turn: a spouse; children; parents; brothers and sisters; grandparents; and uncles and aunties, as those relationships are understood (as linear relationships) in the general Australian community.
18. As a default provision, if there is no person who takes an interest in an intestate estate under the general rules, the estate passes to the State (bona vacantia): Succession Act, Part 4.5 (sections 136-137). In such a circumstance, a government Minister has, under section 137(1) of the Succession Act, a discretionary power to waive the State's rights to the estate, in whole or part, in favour of: (a) dependants of the intestate; or (b) any persons who have, in the Minister's opinion, a just or moral claim on the intestate; or (c) an organisation or person for whom the intestate might reasonably be expected to have made provision; or (d) the trustees for any person or organisation falling within the earlier categories of potential beneficiaries. The Minister may grant of waiver of the State's rights on conditions that the Minister considers appropriate: Succession Act, section 137(2).
19. Chapter 4 of the Succession Act must be read in the context of the Act as a whole. That is, with an appreciation that the Act governs the making, alteration, revocation, revival and construction of wills (Chapter 2) and applications for family provision relief (Chapter 3).
20. A person may avoid any application of the intestacy rules (in Chapter 4) to his or her estate by leaving a will, thereby recording his or her testamentary intentions about what is to happen to his or her property after death.
21. Whether or not a will is left, anybody who falls within the definition of an "eligible person" in section 57 (in Chapter 3) can apply to the Court for a family provision order in respect of the estate of a deceased person; unless the Court otherwise orders, a family provision order takes effect as if the provision made by the Court was made in a will of the deceased.
22. Ideas that inform the Act as a whole can be found in the default provisions for which Part 4.5 provides, with its emphasis on making provision for dependants, persons who have a just or moral claim, and those for whom an intestate might reasonably be expected to have made provision.

THE PARAMETERS OF THIS CASE

1. Gerard Micah Kyle Jerrard ("the deceased") died in Tingha on 21 July 2016, aged 22 years. He was born on 28 November 1993. He died, with a mate, in a motor vehicle accident.
2. The plaintiff (as mother) and the defendant (as father) are the parents of the deceased. They are not, and they never have been, married. The deceased was the product of a brief liaison, between two young people, which did not endure long past the birth of the deceased. The plaintiff was born in 1977, and is now nearly 41 years of age. The defendant was born in 1973, and is now aged about 45 years. It is doubtful whether they could ever be said to have been in a de facto (marriage-like) relationship. Within the broader social network of a cohesive Aboriginal community, the plaintiff raised the deceased as a single parent. Within that same community, the defendant sired three other children by a woman other than the plaintiff. All lived within close physical proximity as members of the community.
3. The parties are agreed that the deceased died intestate, and that, subject to any distribution order that might be made, his estate is to be divided equally between them, he, having left no wife or partner, and no children.
4. The evidence is silent as to the deceased's testamentary intentions, if any, beyond adversarial assertions, on each side of the record, that, if interrogated as to his intentions, he would have favoured the plaintiff, or not excluded the defendant, as the case may be. There is no direct evidence as to why he died without a will, or as to what he would have done had he been required to make a will. There is no direct evidence bearing upon whether he would, or would not, have been content to abide by the general intestacy rules, or "traditional customary lore". A fair inference from his age, his social circumstances and the unforeseen manner of his death is that he never applied his mind to any such questions.
5. The estate comprises liquid assets valued at or about $365,000 net of liabilities: in substance, death benefit and superannuation entitlements (worth about $357,000) associated with his employment, for a time, with Inverell Shire Council. The nature of the estate is such that, as a practical matter, most of it cannot be accessed without a grant of administration by the Court.
6. No part of the estate has been distributed, so there is no necessity for an order (under section 134(2) of the Succession Act) that property be restored to the estate to abide the Court's orders; and section 133(2), which precludes the making of a distribution order after an estate has been fully administered, is no impediment to the plaintiff's application.
7. No grant of administration of the deceased's estate has been made, so that the limitation period for which section 133(3) of the Act provides has not expired. The plaintiff's application is made "within time".
8. There is no dispute between the parties that the plaintiff and the defendant are Indigenous persons, or that the deceased, as their son, was an Indigenous person. It is agreed that all three are, or (in the deceased's case) were, members of the Nucoorilma Clan of the Gomeroi People in Tingha (near Inverell) in northern NSW.
9. The plaintiff, as the mother and primary carer of the deceased, claims that (under the laws, customs, traditions and practices of the Nucoorilma Clan of the Gomeroi People) she is entitled to the whole of the deceased's estate to the exclusion of the defendant.
10. The defendant contends that there are no relevant laws, customs, traditions and practices of the Nucoorilma Clan of the Gomeroi People bearing upon who should inherit his estate.
11. The case advanced by the defendant includes, more particularly, the following propositions: 1. there are no relevant laws, customs, traditions or practices of the Nucoorilma Clan of the Gomeroi People inconsistent with the general intestacy rules for which the Succession Act provides, pursuant to which the deceased's estate should be divided between the plaintiff and the defendant as parents of the deceased. 2. even if there are such laws, customs, traditions and practices as are alleged by the plaintiff, it would not be, in all the circumstances of the case, "just and equitable" within the meaning of the Succession Act to make a distribution order inconsistent with the intestacy rules that would otherwise apply.
12. The plaintiff's response includes a contention that, upon the proper construction of the Succession Act, the expression "in all the circumstances, just and equitable" found in section 134(4) of the Act requires an assessment of what is "just and equitable" by reference only to "the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged".
13. That contention appears, at least in part, to be a function of the facts that: (a) the only affirmative evidence of "the laws, customs, traditions and practices" of the Nucoorilma Clan of the Gomeroi People that has been adduced has been adduced by the plaintiff; (b) that evidence supports the plaintiff's case; and (c) the plaintiff appears to have marshalled the parties' community to support that case as well.
14. It is agreed between the parties that, for the purposes of Part 4.4 of the Succession Act, the plaintiff's proposal (set out in a statement of claim and repeated in her affidavits) that the whole of the estate of the deceased be distributed to her is a sufficient "scheme for distribution" within the meaning of section 134 of the Act. The critical feature of a "scheme for distribution" is that it embodies a proposal for distribution of the whole of an estate, not merely a claim for a share of part of an estate. Functionally, a "scheme for distribution" must, by a proposal for distribution of the whole of an estate, facilitate administration of the estate: Re Estate Wilson at [160]-[163].
15. Notice of the plaintiff's application has been extensively published in a manner designed to bring forward both any competing claims to the deceased's estate and objections to the deceased's parents' claims on the bounty of the deceased.
16. Notice of the plaintiff's intention to apply for a grant of letters of administration in respect of the deceased's estate was published, in accordance with the Probate Rules, on the Court's Online Registry website on 27 September 2016.
17. On 16 March 2018, the plaintiff published, in both the Sydney Morning Herald and the Inverell Times newspapers, notice of her intention to apply for a distribution order. Those notices conformed to the template found in Tighe [2018] NSWSC 163 at [50]. The Sydney Morning Herald circulates throughout New South Wales. The Inverell Times circulates in and around Tingha and Inverell.
18. The plaintiff also attached to affidavits documents, admitted into evidence without objection, which evidence knowledge of her application by the Local Aboriginal Land Council, and a goodly number of the Aboriginal community (including Elders) of Tingha.
19. Tingha is a small rural community with a predominantly Aboriginal population, which includes members of the extended families of both the plaintiff and the defendant. Significantly, in what is agreed to be a matriarchal society, the community includes the two grandmothers of the deceased, the respective mothers of the parents.
20. The plaintiff's application for a distribution order, and the defendant's opposition to such an order, can confidently be dealt with on the basis that all persons with an interest, or potential interest, in the deceased's estate have been allowed an opportunity to be heard: Re Estate Wilson at 145; Tighe at [18]-[21].
21. Sufficient publicity has been given to these proceedings to justify a finding, on uncontradicted evidence, that the deceased died intestate, without a wife or partner, without issue and without dependents. The plaintiff and the defendant are the only beneficiaries entitled to his estate under the general rules of intestacy. No person has applied for family provision relief in respect of his estate, and the limitation period for which Chapter 3 of the Succession Act provides for the making of a family provision claim has expired.
22. Sufficient publicity has been given to the plaintiff's claim for a distribution order to allow the Court to proceed to deal with that claim on the basis that (under the laws, customs, traditions and practices of the Nucoorilma Clan of the Gomeroi People, no less than under the general intestacy rules for which the Succession Act provides) the only people who potentially have a claim to the deceased's intestate estate are his parents, the plaintiff and the defendant.
23. In the absence of any third party claim it is unnecessary to explore the possibility that each of the plaintiff and the defendant has a range of family members, not strictly dependents according to the general community standards, to whom, within their Indigenous community, they owe obligations of familial respect which might subject them to culturally irresistible demands for a share of whatever resources are, or become, available to them.
24. The practical reality appears to be that Part 4.4 of the Succession Act provides the only vehicle for a contest between the plaintiff and the defendant about the wealth that has been made available to them by the death of the deceased. But for any rights they may have to inherit the deceased's estate, both are impecunious. Neither has substantial means, assets or income. Both are substantially dependent upon social welfare and the support of their community. The only substantial wealth available to them takes the form of the deceased's death benefit and superannuation entitlements. Neither of them falls within the definition of an "eligible person" so as to entitle them to apply for family provision relief. But for the birth of the deceased, they could not be said ever to have lived in a de facto relationship; given the passage of time, any property entitlements they might possibly have had arising out of such a relationship could not, in any event, conveniently be adjusted through an application under the Property (Relationships) Act 1984 NSW.
25. Affidavits have been filed on each side of the record. On the hearing of the proceedings, the parties agreed to take no evidentiary objections; to require no witness for cross examination; and, conformably with West v Mead [2003] NSWSC 161, to make no submissions referrable to Browne v Dunn [1893] 6 R 67 arising out of a failure to cross examine.
26. It is common ground between the plaintiff and the defendant that, by an order made by the Local Court at Inverell, under the Family Law Act 1975 Cth, when the deceased was aged about six months, the plaintiff was granted sole guardianship and custody of the deceased, reserving to the defendant reasonable access.
27. It is also common ground: that for the most part, the deceased lived in the same household as his mother (and maternal grandmother); that the plaintiff was always his principal carer; that there was comparatively limited social contact between father and son, a fact that the plaintiff attributes to indifference on the part of the defendant and he attributes to the plaintiff's exclusion of him; that, although the deceased had only limited social contact with his father, he had a close personal relationship with his mother and each of his grandmothers (maternal and paternal), and he maintained a social relationship with his half-siblings, the three other children born to his father; that, with no more than a handful of exceptions, the defendant's contact with the deceased was limited to his delivery to the deceased of birthday and Christmas gifts and to occasions, when the deceased was working, when the defendant asked the deceased for (and received) money.
28. The only significant financial contribution made by the defendant to maintenance of the deceased took the form of mandatory, and comparatively nominal, "child-support" deductions made by the Commonwealth from social security payments made to the defendant, his only substantial source of income.
29. It is agreed between the parties that the sum of $293.43 is presently owed by the defendant, to the plaintiff, for child support referable to the deceased. No objection has been raised to that sum being "set off" against any entitlement the defendant is found to have to a share of the deceased's estate. The object of such an adjustment is both to accommodate the dictates of justice and equity to the facts of the case and to bring to an end disputation between the parties.
30. On his own admission, the defendant has convictions for driving and drug offences, and for other antisocial behaviour; and his lifestyle, including homelessness, did not provide a good role model for the boy. He swears, and I accept, that, despite his deficiencies, he always tried to be a loving father.

PROOF OF INDIGENOUS "LAWS, CUSTOMS, TRADITIONS AND PRACTICES" : Succession Act, Sections 133(1), 133(2) AND 134(3)(b)

The Operation of the Evidence Act 1995 NSW

1. In conducting the proceedings as they did, the parties' legal representatives were mindful of a need for economy in the conduct of proceedings relating to a small estate, and of provisions of the Evidence Act 1995 NSW which facilitate the admission of evidence about Indigenous traditional laws and customs.
2. Section 72 of the Evidence Act 1995 provides that "[the] hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group".
3. Section 78A of the Evidence Act provides that "[the] opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group".
4. Part 1 of the Dictionary set out in the Evidence Act includes a definition in the following terms: "'Traditional laws and customs' of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group."
5. These provisions open the door to admissibility of evidence otherwise inadmissible because it takes the form of hearsay or an expression of opinion unaccompanied by expertise.
6. They were introduced into the Evidence Act by the Evidence Amendment Act 2007 NSW, as a means of implementing recommendations made in Chapter 19 of the joint Uniform Evidence Law Report of the Australian Law Reform Commission (ALRC Report 102), the NSW Law Reform Commission (NSW LRC Report 112) and the Victorian Law Reform Commission (VLRC Final Report) dated December 2005.
7. As noted in the Explanatory Note to the Evidence Amendment Bill 2007, the Commissions intended the proposed amendments to the Evidence Act "to shift the focus from whether there is a technical breach of the hearsay rule [and the opinion rule] to whether the particular evidence is reliable. Evidence given will still be subject to the safeguards of relevance provided by section 55, and the discretionary and mandatory exclusions in sections 135-137, of [the Evidence Act]".
8. A convenient summary of the policy concerns underlying the amendments to the Evidence Act can be found in the Second Reading Speech of the then Attorney General for New South Wales (John Hatzistergos MLC) incorporated in Hansard's Parliamentary Debates for the Legislative Council, on 24 October 2007, at pages 3199-3200 (with emphasis added): "[The Evidence Amendment Bill 2007] proposes to introduce new exceptions to the hearsay rule and the opinion rule, for evidence of Aboriginal and Torres Strait Islander traditional law and custom. In their Report, the Law Reform Commissions found that the Evidence Act should be amended to be more responsive to Aboriginal and Torres Strait Island oral traditions. It is not appropriate for the hearsay rule (and by extension, the legal system) to treat orally transmitted evidence of traditional law and custom as prima facie inadmissible, when this is the very form by which law and custom are maintained under Indigenous traditions. Similarly, a member of an Aboriginal or Torres Strait Islander group should not have to to prove that he or she has specialised knowledge based on training, study or experience before being able to give opinion evidence about the traditional law and custom of his or her own group. The intention is to make it easier for the court to hear evidence of traditional laws and customs, where relevant and appropriate. The exceptions proposed in the Bill shift the focus away from whether there is a technical breach of the Evidence Act, to whether the particular evidence is reliable. Factors relevant to reliability or weight will include the source of the representation, the persons to whom it has been transmitted, and the circumstances in which it was transmitted. The requirements of relevance in sections 55 and 56 [of the Evidence Act] may operate to exclude representations which do not have sufficient indications of reliability. Reliability will also be ensured if courts continue to use their powers to control proceedings to create a culturally appropriate context for the giving of evidence regarding the existence or content of particular traditional laws and customs. Further safeguards are provided by the Court's powers under sections 135, 136 and 137 [of the Evidence Act] to exclude or limit the use of evidence. For the purposes of the exceptions to the hearsay and opinion rules, the Commissions also concluded that a 'broad definition of traditional laws and customs' was desirable. The everyday meaning of 'traditional law', or 'traditional custom' is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. However, the High Court has held - in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 [46], per Gleeson CJ, Gummow and Hayne JJ, with McHugh J agreeing - that for the purposes of the Native Title Act 1993, 'traditional laws and customs' refers specifically to traditional laws and customs 'whose content originates in the normative system of Aboriginal and Torres Strait Islander societies prior to assertion of sovereignty by the British Crown.' The Commissions considered that for the purposes of the Evidence Act, 'traditional laws and customs' should not be limited to that interpretation. To ensure that the Act covers the full range of matters within the scope of 'traditional laws and customs', a broad definition of 'traditional laws and customs' has been inserted. The new definition is not limited to 'normative rules'. It contains a non-exhaustive list of matters that includes customary laws, traditions, customs, observations, practices, knowledge and beliefs of a group (including a kinship group) of Aboriginal or Torres Strait Islander people. The Commissions consider that this broader definition will enable the Court to receive more diverse evidence which can be used to prove the existence and content of traditional laws or customs. The definition also refers to 'any of the traditions, customary laws, customs' and so on, of the group. This is to make clear that the new exceptions to the hearsay and opinion rules apply to traditions and customs generally, and not only to those whose content has been shown to originate in traditional law and custom in force prior to the assertion of sovereignty by the British Crown. Just like the common law we have inherited from Britain, Aboriginal and Torres Strait Island traditional law and custom did not ossify in 1788, but has continued to evolve. Moreover, it is impractical and inappropriate to require courts to enquire whether the content of any given traditional law or traditional custom has its origins before sovereignty, in order to decide whether the exceptions may apply. Requiring such an enquiry would be contrary to the purpose of the new exceptions, which is to shift the focus away from technical obstacles to admissibility, and on to whether the particular evidence is reliable and what weight it should be accorded. … The great advantage of the proposed exceptions for traditional law and custom is that these exceptions make it easier for community members to speak to the court, and to explain what their traditions really are. If any person tries to misrepresent tradition out of self-interest, community members can much more easily set the record straight in court…. If traditional law and custom is a relevant and appropriate consideration in a court case, it is highly impractical to exclude it on the grounds that it breaches the hearsay or opinion rules. …"
9. To similar effect, see the Agreement in Principle speech recorded in Hansard's Parliamentary Debates for the Legislative Assembly on 17 October 2007 at pages 2811-2812.
10. In civil proceedings such as those under Part 4.4 of the Succession Act, the practical effect of the Evidence Act, as amended, is: 1. implicitly to embrace the view that, in substance, "rules of evidence" relating to "traditional laws and customs" can be encapsulated in two questions: Is a particular piece of evidence, relevant to a fact in issue? Is it probative of a fact in issue? 2. to shift forensic contests about the admissibility of evidence about "traditional laws and customs" away from an application of rules governing admissibility towards consideration of whether an order should be made by the Court to exclude, or limit the use of, evidence the probative value of which is substantially outweighed by a danger that it might be unfairly prejudicial to a party, be misleading or confusing, or cause or result in undue waste of time. 3. to force the parties, if not the Court, into a conversation about factors relevant to reliability or weight of evidence about "traditional laws and customs" irrespective of its form.
11. Modification of the "rules of evidence" ordinarily applied in adversarial litigation may present practical problems of its own in testing the truth and reliability of evidence about "traditional laws and customs".
12. Thus, in the present proceedings, the evidence adduced by the plaintiff, and her corroborative witnesses, about "the traditional customary lore" of the Nucoorilma Clan of Gomeroi People essentially took the form of bare declarations about the "traditional customary lore" which were not independently verifiable by the Court except by the drawing of inferences from: 1. the sufficiency of publication of notice of the plaintiff's claim under Part 4.4 of the Succession Act to identify, and to allow an opportunity for participation in the proceedings of, all potentially interested claimants on the bounty of the deceased. 2. the identity, and ostensible status within an Aboriginal community, of each person making a declaration about the existence and content of "the traditional customary lore". 3. the absence of any application for an order under sections 135 and 136 of the Evidence Act that that evidence be excluded or limited in some way.
13. In approaching evidence in this way, the Court must necessarily depend in large measure on the integrity of witnesses and legal practitioners who supervise preparation of their evidence, as well as upon the sufficiency of publication of notice of the proceedings to ensure that potential contradictors are identified and given an opportunity to test evidence as to traditional laws and customs.
14. Sections 72 and 78A of the Evidence Act, in combination with Part 4.4 of the Succession Act, demonstrate a legislative intention that the Court take a liberal view of the existence, and content, of "traditional laws and customs" of Indigenous communities.
15. However, safeguards against misapplications of the law are equally important. In the Evidence Act, safeguards can be found in sections 135-136. In Part 4.4 of the Succession Act, safeguards can be found in the fact that the making of a distribution order under section 134(1) is discretionary, and section 134(4) requires that the Court be satisfied that a distribution order is "in all the circumstances, just and equitable".

Evidence of "Traditional Customary Lore"

1. An apparently authoritative declaration about "traditional laws or customs" by Elders, members or official representatives of an Indigenous community may have a powerful, persuasive effect on a decision maker; but Courts need to remain conscious that, if not independently verifiable by the Court upon a review of underlying facts, such a declaration might operate as a vehicle for oppression of a person, or persons, out of favour with those who for the time being control community organisations, or exercise a disproportionate influence over community opinions. A function of the law is to protect the vulnerable; perhaps, especially those who are unpopular.
2. For whatever reason, deserved or not, the defendant appears to live on the margins of his community, dominant voices of which have been marshalled in the interests of the plaintiff. On evidence not tested by cross examination, it is not possible to determine with certainty whether, or to what extent, the defendant occupied the margins of his son's life by choice or by exclusion.
3. Objectively, the probability that he was ostracised by the plaintiff and her family appears to be substantial, and the deceased died at an age too young to have moved beyond his mother's sway. The defendant maintains that (faults and all) he always tried to be a loving father to his son, that he was distressed by the boy's death, and that he continues to mourn his loss. Evidence of the defendant's siblings supports him in this.
4. On an application for a distribution order upon which the plaintiff bears the forensic onus, the Court should not lightly discount the defendant's evidence of a paternal bond the existence of which is corroborated by evidence that the deceased extended charity to the defendant and visited him in hospital.
5. Counsel for the defendant, correctly,urged the Court not to accept uncritically evidence in favour of the plaintiff's assertion of a "traditional customary lore" of the Nucoorilma Clan of the Gomeroi People. With that submission in mind, various extracts of the evidence are here set out.
6. By a letter dated 22 November 2016, the Executive Committee Treasurer of the Mooki and Bassendeen Association Inc. (Anthony Munro) wrote in the following terms to the plaintiff's solicitor (with editorial adaptation): "… I declare that under the Traditional Customary Lore the protocol and procedures within our clan group structure that the individual/persons have the responsibilities as being the next of kin who has maintained the responsibilities of a sole provider/carer. [The plaintiff] was and has been the sole provider for [the deceased], [the plaintiff] has always maintained full Cultural, Traditional, financial support and responsibilities for [the deceased]. Therefore, in Traditional and Customary Lore [the deceased's] full estate should be granted to the mother [the plaintiff] … This lore and customs [sic] has always been maintained within our clan group structure since per-settlement [sic] and is regarded by us has [sic] Kinship Lore".
7. In a letter dated 1 December 2016 the Chief Executive Officer of the Anaiwan Local Aboriginal Land Council (Gregory T Livermore) wrote the following to the solicitor for the plaintiff (with editorial adaptation): "… [The deceased] was a Member of the Nucoorilma Munro Clan of the Gomeroi People who have inhabited the area around Tingha since early European invasion and the subsequent Aboriginal Protection Board Policies that restricted our movements as a race of People within and outside this area. [The plaintiff] had reared [the deceased] from a newborn baby through his school age years and into adulthood. He was very close with his mother and [the plaintiff] with him. Although [the deceased] had a Father, family information and anecdotal evidence says that he did not have the close interaction associated with most Father Son relationships and he spent the majority of his time with his Mother. [The plaintiff] reared [the deceased] in a single parent household with the support of her family and he remained in her care throughout his life and as is acceptable Cultural Custom and Tradition for the Person/Persons who reared an individual, that Person/Persons become entitled to receive full benefit of any estate or entitlements due to that individual in the event of death. Any entitlements from [the deceased's] estate should belong to [the plaintiff], [the deceased's] Mother, Friend and Sole Carer. To do otherwise would be morally and culturally wrong. [the plaintiff] more than anyone else deserves to benefit from [the deceased's] estate so that she can have closure and begin to complete her grieving for her only child…".
8. Separate letters dated 7 December 2016 signed by signatories who claimed respectively to be "the Aboriginal Elders of Tingha and Inverell" and "the Community of Tingha and Inverell" were written to the plaintiff's solicitor in the following terms (with editorial adaptation), in a form reminiscent of a petition: "We… declare that under the Traditional Customary Lore the protocol and procedures within our clan group structure that the individual/persons have the responsibilities as being the next of kin who has maintained the responsibilities of a sole provider/carer [sic]. [The deceased and the plaintiff] are of the Nucoorilma Clan Group of the Gomeroi Nation - Tingha. [The plaintiff] was and has been the sole provider for [the deceased], [the plaintiff] has always maintained full Cultural, Traditional, financial support and responsibilities for [the deceased]. This lore and customs [sic] has always been maintained within our clan group structure since per-settlement [sic] and is regarded by us has [sic] Kinship Lore".
9. The last paragraph of these letters follows precisely the template of the last paragraph of the letter signed by the Executive Committee Treasurer of the Mooki and Bassendeen Association Inc. Some of the plaintiff's supporters signed both the letters dated 7 December 2016. Mr Livermore, who signed the letter on behalf of the Local Aboriginal Land Council, appears to be one of those.
10. The plaintiff's mother (Suzanne Margaret Blacklock) swore an affidavit in support of her daughter's case which included the following paragraphs (with editorial adaptation): "[54] Under my people's traditional lore, when a person dies the person's next-of-kin receives the full benefit of his or her estate. This has been the case since pre-settlement days. [55] For example: A. If a person is survived by a spouse, the next-of-kin of that person is his or her spouse; B. If a person is not survived by a spouse but is survived by children, the next-of-kin of that person is his or her children; C. If a person is not survived by a spouse or children the next-of-kin of that person is the person or persons who cared for the person, who were responsible for the person and who raised the person during his or her life time. [56] It is for this reason that, pursuant to my people's traditional lore my daughter should receive the full benefit of [the deceased's] estate (including his personal possessions and other assets). [The plaintiff] was [the deceased's] next-of-kin. She cared for [him], was responsible for him and raised him from the moment he was born until the date of his death."

Assessment of the Evidence of "Traditional Customary Lore"

1. The defendant deposed to having no knowledge of any such "lore". He was supported in this by each of two sisters and a brother. Their evidence was discounted by the plaintiff on the basis that, having moved away from Tingha, they could not be expected to have kept abreast of community lore.
2. Counsel for the defendant drew attention to identification of "next of kin" in evidentiary statements of the "lore" relied upon by the plaintiff by reference to "a person or persons" having care for a deceased person. He pointed to the contribution made by the plaintiff's mother to domestic care for the deceased in support of a submission that the criterion of "provision of care" is too nebulous a criterion to operate as an effective foundation for succession entitlements - the deceased was never solely in the care of the plaintiff, but in the care of family generally.
3. This submission goes nowhere for three reasons. First, it is essentially criticism of an attempt to express as a positive rule of law a summary of social arrangements that might include more than one person in loco parentis. Secondly, each of the declarations of community "lore" is accompanied by an exposition of the law that demonstrates its application to the plaintiff alone in the circumstances of the case. Thirdly, even if it was open to the plaintiff's mother and other members of the community to claim an interest in the deceased's estate, the fact is that they have asserted no such claim, and the Court is entitled (if not obliged) to determine the plaintiff's application on the basis that the only claims on the bounty of the deceased are those of the plaintiff and the defendant.
4. The Court is not bound to accept the declarations of "traditional customary lore" to which the plaintiff and her witnesses depose. Nor is it bound to accept evidence merely because it is able to be characterised as evidence of an expert. In each case, the Court is obliged, in all the circumstances, to exercise an independent judgement upon its assessment of the materiality and probative value of the evidence available on questions to be determined by the Court. If the Court is not satisfied about the existence, or content, of "the laws, customs, traditions and practices of the Indigenous community or group to which [an] intestate belonged" the only course ultimately open to it may be to order that an application for a distribution order be dismissed.
5. In the absence of any challenge to the bona fides of the evidence of the plaintiff, and her corroborative witnesses, about "the traditional customary lore" of the Nucoorilma Clan of the Gomeroi People, and having regard to the purpose for which sections 72 and 78A of the Evidence Act were enacted, I am persuaded that I should find, as a fact, that the plaintiff's articulation of that "lore" accurately states "the laws, customs, traditions and practices of the Indigenous community or group to which [the deceased] belonged" within the meaning of Part 4.4 of the Succession Act.
6. In a numerically small Indigenous community there is significant probative value in the fact that Elders, other members and official representatives of the community agree upon a formulation of "traditional customary lore" (which has no competing formulation of traditional customary law or practice advanced against it), in circumstances in which substantial notice of these proceedings has been given to the community as a whole. In making a finding about "the laws, customs, traditions and practices" of an Indigenous community the Court should generally endeavour to listen to the voices of the community - not uncritically, but empathetically.
7. It does no harm to the plaintiff's case that the "traditional customary lore" for which she contends may be thought to have a moral foundation of universal appeal (he or she who bears a burden should be entitled to enjoy an associated benefit); but it cannot be accepted on the basis of such a criterion. Questions about the existence, and content, of "the laws, customs, traditions and practices of the Indigenous community or group to which [an] intestate belonged" are essentially empirical, not normative, in character.
8. The fact that declarations of the "traditional customary lore" relied upon are not articulated by reference to an accumulation of factual illustrations of the lore in operation is not, of itself, a reason for rejecting it in light of the Evidence Act provisions which authorise its reception by the Court and Parliament's encouragement of courts to accept such evidence. Parliament has endorsed the Law Reform Commissions' recommendation that a liberal, consultative approach be taken to an assessment of Indigenous traditional laws and customs.
9. Having cast a critical eye over the form and substance of the evidence bearing upon the existence, and content, of the "traditional customary lore" for which the plaintiff contends, I am not satisfied that there is anything untoward in her presentation of evidence about such "lore" in declaration form.
10. Nor am I satisfied that there is reason for characterisation of the plaintiff's marshalling of community voices against the defendant as oppressive. Although he may live on the margins of his community, he has had the benefit of legal representation and substantial opportunities to advance a case contrary to that of the plaintiff. The primary emphasis of his case has been upon the dictates of justice and equity imported by section 134(4) of the Succession Act. He has put the plaintiff to proof on the existence, and content, of "traditional customary lore". He has more actively advanced his case on section 134(4).
11. Upon an assumption that "the traditional customary lore" of the Nucoorilma Clan of the Gomeroi People is, or is substantially, as described by the plaintiff, counsel for the defendant submitted that the defendant, no less than the plaintiff, had care of the deceased (and should, equally, be regarded as next of kin of the deceased) because he was a parent of the deceased; by a court order he had a legal right of reasonable access to the deceased; he paid maintenance for the deceased, albeit in small amounts, in the form of compulsory child support payments; and he maintained contact with the deceased to the extent he was not excluded by the plaintiff from doing so.
12. This submission must fail because "the traditional customary lore" of the Nucoorilma Clan of the Gomeroi People, as articulated by the plaintiff, looks to the substance of relationships, not simply their form; and, for whatever reason, the defendant was not, in any real factual sense, a person responsible for the deceased's care. The defendant had only intermittent contact with the deceased. If the plaintiff tended to exclude him from more than passing contact with the deceased, he appears nevertheless to have accepted his exclusion without demur.
13. Upon an assumption that the deceased would have been content to abide the "traditional customary lore" of the Nucoorilma Clan of the Gomeroi People in this respect, I accept that under "the laws, customs, traditions and practices of the Indigenous community or group to which [the deceased] belonged", the whole of his estate would pass to the plaintiff.

STATUTORY CONSTRUCTION - "IN ALL THE CIRCUMSTANCES, JUST AND EQUITABLE": Succession Act, Section 134(4)

Confined to a consideration of "the laws, customs, traditions and practices" of an Indigenous Community?

1. The plaintiff's contention that the expression "in all the circumstances, just and equitable" in section 134(4) of the Succession Act must be confined to a consideration of "the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged" should be rejected for the following reasons.
2. First, Part 4.4 of the Succession Act cannot be construed as a self-contained "code" of concern only to a particular Indigenous community or particular members of a particular Indigenous community. Section 134(4) of the Act is to be construed, as an integral feature of Part 4.4, in the context of the Succession Act as a whole. Although Part 4.4 looks uniquely to "the laws, customs, traditions and practices" of an Indigenous community, it does so in the context of legislation in which there is a broad public interest in the due administration of estates generally.
3. Part 4.4 does not provide for a closed system of estate administration, but for the making of an order which operates as a dispensation from general rules of intestacy which apply to the general community, Indigenous or otherwise. The intestacy provisions, in turn, provide a regime for estate administration in default of an effective will being made. Indigenous Australians, in common with the general community, are entitled to dispose of their estates by will. Part 4.4 must accommodate this. Indigenous Australians, throughout the country, are being actively encouraged to control their own affairs by each adult, at least, making his or her own will.
4. Secondly, the words "in all the circumstances" reinforce a feature inherent in the expression "just and equitable". The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds: Stanford v Stanford (2012) 247 CLR 108 at [36]. As was observed in Re Estate Wilson at [136], and accepted in Tighe at [58], the language of section 134(4) of the Succession Act is a classic means of invoking jurisdiction essentially equitable in character - that is, jurisdiction customarily exercised by reference to all the circumstances of the particular case.
5. That said, although section 134 confers a broad power on a court exercising jurisdiction to make a distribution order, it is not a power that is to be exercised according to an unguided judicial discretion: Stanford v Stanford (2012) 247 CLR 108 at [38]. The discretion must be exercised according to accepted principle; for what is just and equitable is not a matter of unfettered individual opinion: Sanders v Sanders (1967) 116 CLR 366 at 379-380.
6. Thirdly, taken as a whole, the expression "in all the circumstances, just and equitable" does not sit comfortably with a construction that confines it to a consideration of "the laws, customs, traditions and practices" of an Indigenous community, as if questions of "justice and equity" can readily be divided into those that do, and those that do not, pertain to an Indigenous community. Substantial weight must appropriately be given to what is regarded as "just and equitable" in the setting of a particular Indigenous community, because what is "in all the circumstances, just and equitable" requires that to be so; but to confine a consideration of what is "just and equitable" to "the laws, customs, traditions and practices" of a particular Indigenous community is to impose on the expression a meaning more limited than it naturally bears.
7. Fourthly, to limit the expression "in all the circumstances, just and equitable" to a consideration of "the laws, customs, traditions and practices" of an Indigenous community would be to go beyond the requirement of section 134(3) of the Succession Act (which requires the Court to "have regard" to "the laws, customs, traditions and practices" of an Indigenous community) and to disregard the word "however" in section 134(4). Having directed the Court to "have regard" to "the laws, customs, traditions and practices" of a particular Indigenous community in formulating an order under Part 4.4, section 134(4) provides that "[the] Court may not, however, make an order under [Part 4.4] unless satisfied that the terms of the order are, in all the circumstances, just and equitable".
8. The intention of the legislation is that section 134(4) operate as a constraint upon the making of a distribution order under section 134(1), recognising that in formulating such an order the Court must (in conformity with section 134(3)) have regard to (that is, respectfully take into account) "the laws, customs, traditions and practices" of an identified Indigenous community. Cf, DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, Australia, 8th ed, 2014), para [12.15].
9. Viewed in the context of sections 72 and 78A of the Evidence Act, section 134(4) of the Succession Act provides an important safeguard against an abuse of process which might be difficult to discern on evidence about "the laws, customs, traditions and practices" of an Indigenous community not independently verifiable by the Court.
10. The utility of Part 4.4 depends on its being able to operate without procedural or cost constraints which render it beyond the practical in dealing with small estates, as many Indigenous estates are. An exercise of the Court's jurisdiction could be frustrated or, at least, beyond the reach of Indigenous Australians if evidence of "traditional customary law" cannot be adduced summarily as an exception to the hearsay and opinion rules. An effective exercise of jurisdiction, at least in relation to a small estate, requires an ability to act on evidence of community members without the intervention of professionally qualified experts. Sections 72 and 78A of the Evidence Act permit this.
11. Section 134(4) of the Succession Act provides a safeguard against injustice, recognising that "justice and equity" is a criterion directed, and adaptable, to the facts of the particular case. Due regard must be had to "the laws, customs, traditions and practices" of the deceased's Indigenous community, but so too due regard must be had to the possibility that, empowered by the general law to make a will, a deceased Indigenous person might choose to modify or depart from a general community understanding of traditional customary law. The Succession Act endeavours to recognise the autonomy of each individual whilst, at the same time accommodating claims upon his or her bounty associated with living in community.

Are there other constraints on the meaning of the expression, "in all the circumstances, just and equitable"?

1. Because the expression "in all the circumstances, just and equitable" does not admit of exhaustive definition, the Court should refrain from suggesting otherwise by attributing special, overriding significance to particular factors relied upon in adversarial argument. In each case, regard may be had to a factor insofar as it bears upon the justice or equity of a particular order. However, care should be taken not to elevate particular factors unduly beyond their factual setting.
2. Despite an early suggestion to the contrary, it is common ground in the current proceedings that the defendant has not been guilty of anything that could be characterised as "conduct disentitling" from participation in the deceased's estate.
3. The concept of "conduct disentitling" is a faint echo of a defence to a family provision claim sanctioned by the Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW, section 3(2), which did not survive repeal of that Act by the Family Provision Act 1982 NSW or the enactment of replacement provisions in chapter 3 of the Succession Act. It may be that, in the circumstances of a particular case, the conduct of a claimant on the bounty of a deceased person might have a significant bearing on the relationship between the parties, the existence or otherwise of a just or moral claim on the bounty of an intestate, or identification of a person for whom the intestate might reasonably be expected to have made provision. A prolonged history of domestic violence comes to mind as a potential illustration of that. However, Part 4.4 of the Succession Act does not invite institutionalisation of any concept such as "conduct disentitling" participation in an Indigenous intestate estate.
4. Likewise, an assessment of a perceived "need" on the part of a claimant for provision out of an Indigenous intestate estate. A determination to make, or to decline to make, a distribution order under Part 4.4 is not governed by the normative criteria which govern the making of a family provision order, under chapter 3 of the Succession Act. Upon an application of Part 4.4, the Court does not inquire (as is as it does under sections 59(1)(c) and 59 (2) of the Succession Act in relation to a family provision claim) whether a claimant has been left without "adequate provision for proper maintenance, education or advancement" in life, or whether provision "ought to be made" for a claimant's maintenance, education or advancement in life.
5. An application for a distribution order under Part 4.4 is not simply an Indigenous substitute for a family provision application under Chapter 3. Indigenous families have the benefit of Chapter 3 no less than non-Indigenous families. The reference in Chapter 3, section 60(2)(o), to "Aboriginal and Torres Strait Islander customary law" as potentially relevant to the determination of a family provision claim confirms the independent operation of customary law factors in the setting of an application for a family provision order. There is no jurisdictional inter-connection between an application for a family provision order and an application for a distribution order, though a judge might decline to make a distribution order if of the view, all things considered, that a party or parties should be left to pursue, or contest, family provision proceedings.
6. The deceased's recognition of a familial obligation to respect, and to provide material assistance for, the defendant bears more directly upon a consideration of what is "in all the circumstances, just and equitable" than does any criterion constructed by analogy with family provision proceedings. On the facts of the case, it potentially speaks to the deceased's own assessment of whether his father had a just or moral claim on him, or might reasonably be expected to have provision made for him out of the deceased's estate.

SHOULD A DISTRIBUTION ORDER BE MADE IN FAVOUR OF THE PLAINTIFF? : Succession Act, Sections 134(1), 134(3) AND 134(4)

1. Upon consideration whether a distribution order should be made modifying the general rules of intestacy for which Parts 4.2 and 4.3 of the Succession Act provide, the starting point is a consideration of the personal perspective of the particular, individual intestate whose estate is to be distributed: Re Estate Wilson at [145]-[146].
2. Part 4.4 of the Succession Act invites the Court to make a rational calculation (not excluding an element of intuitive assessment) of what a particular Indigenous person, living and dying in community, would have done if required to make a will. The Court does not make a will for the deceased, ex post facto, but makes an order for distribution of an estate on a just and equitable basis: Re Estate Wilson at [149].
3. Drawing upon section 137(1) of the Succession Act as informing the proper approach to Part 4.4 of the Act, in Re Estate Wilson at [173] I proposed the following as a question for consideration under section 134 in that case: "Had the deceased (a person without dependents) been required to make a will disposing of his estate, what are the terms of the will he would have made having regard to the interests of any person who had a just or moral claim on him, and the interests of those for whom he might reasonably be expected to have made provision, paying due regard, in all the circumstances, to what would be just and equitable?"
4. In Tighe at [62], Kunc J found it helpful to ask that same question in the factual setting of that case.
5. The utility of such a question is that it focuses attention on a deceased person's testamentary freedom; the possibility that there are people who might be thought to have had a just or moral claim upon him or her; and the possibility that there are also people for whom he or she might have been expected to make provision, as factors bearing upon what might, in all the circumstances, be just and equitable, weighing everything in the context of the traditional customary law of the deceased's Indigenous community.
6. In weighing such factors in the balance one needs, nevertheless, to avoid imposing a gloss on the broad statutory language which must be applied to the facts of the case.
7. A significant feature of the current proceedings is that the Court is called upon to consider competing claims on the bounty of the deceased made by his parents within the Indigenous community of which all three were part.
8. The plaintiff contends that, had the deceased (a person without dependents) been required to make a will disposing of his estate, he would have left the whole of his estate to her, and that a distribution order to the same effect would be just and equitable. There is, indeed, a view abroad in the parties' community that it would be unjust and inequitable to do otherwise than to give the plaintiff the benefit of the whole estate.
9. The defendant contends that, if required to make a will, the deceased would have divided his estate equally between his parents (to the same effect as the general intestacy rules) and that it would not be just or equitable to do otherwise on the making of a distribution order.
10. In my opinion, the likelihood is that, if required to make a will, the deceased would have favoured the plaintiff, as his mother and as his primary carer over many years, but he would not have done so to the extent of excluding the defendant as his father.
11. The plaintiff plainly bore the burden of raising the deceased, as a single mother, with the benefit of help from other family members, in a cohesive Indigenous community. Equally, to that extent, the defendant was relieved of the burden he would have borne had mother, father and son lived as a distinct family unit within the community. The deceased plainly respected, and had good cause to respect, the significant contribution made by the plaintiff to his well-being.
12. However, this is not a case in which the deceased had no relationship with his father. Nor is it a case in which, whatever misgivings he may have had, he lacked an element of respect for his father as his father.
13. In my opinion, five facts are of particular significance in weighing the scales against exclusion of the defendant from participation in the deceased's estate. First, the defendant continued to reach out to the deceased by his regular provision of birthday and Christmas presents. Secondly, when in need the defendant sought, and obtained, assistance from the deceased. Thirdly, when the defendant was hospitalised the deceased, albeit perhaps reluctantly, visited the defendant to pay familial respect due to a parent. Fourthly, the deceased maintained good relations with his paternal grandmother and his paternal half siblings, thereby indirectly maintaining his connection with his father as part of the community to which everybody belonged. Fifthly, the defendant maintains, and I accept, that he was consistently proud of his son, whose loss he continues to mourn.
14. In my opinion, not only is it likely that the deceased would have made some provision for his father, if required to make a will, but it would not be just or equitable, in these circumstances, to make a distribution order excluding him altogether from participation in the deceased's estate.
15. Having regard to the size and nature of the deceased's estate, traditional customary lore in the Indigenous community to which everybody belonged, the nature and strength of the personal bonds between the deceased and his respective parents, and their family history viewed from competing perspectives, in my opinion a distribution order in favour of the plaintiff would be just and equitable if, and only if, a modest, but not insignificant, allowance is made in favour of the defendant as a contribution to his welfare.
16. In my opinion, that allowance should be fixed at $40,000, subject to a deduction of $293.43, for the benefit of the plaintiff, in satisfaction of the child support debt owed by the defendant to the plaintiff.

COSTS

1. Orders for payment of the costs of the proceedings are within the general discretion of the Court (Civil Procedure Act 2005 NSW, section 98) and, unless the Court otherwise orders, they should ordinarily follow the outcome of the proceedings (Uniform Civil Procedure Rules 2005 NSW, rule 42.1).
2. The rule that "costs follow the event" is best adapted to proceedings involving an adversarial contest between two parties, unaffected by public interest considerations. The operation of the rule is responsive to the nature of the jurisdiction invoked in different types of proceedings. According to the practice of the Court, departures from the rule commonly occur, for example, in cases involving the administration of an estate, whether those cases involve an exercise of probate, protective or family provision jurisdiction.
3. In the current proceedings it is not necessary to do more than to notice that there is substantial agreement between the parties as to the nature of the costs orders to be made.
4. Although the parties differ in their formulation of appropriate orders, it is common ground that: (a) the plaintiff's legal representatives ask only that her disbursements (in the sum of $2,200.00 inclusive of GST), not including professional fees, be paid out of the estate; and (b) the defendant's costs should be capped.
5. Particular features of the case to be taken into account in determining what costs orders should be made are a felt need, on the part of the plaintiff and her Indigenous community, for a distribution order to be made, arising out of the deceased's death, upon consideration of the community's "traditional customary lore"; the plaintiff's substantial (but not complete) success in the proceedings; the defendant's necessary participation in the proceedings as her contradictor; and his success in avoiding exclusion from participation in the deceased's estate.
6. Although there is an adversarial dimension to the proceedings - it was always open to the parties to reach agreement on the terms of any distribution of the deceased's estate without litigation - there is a sense in which the proceedings reach beyond the adversarial. First, a fundamental cause of the proceedings was the failure of the deceased to make a will. Secondly, any disputation within the deceased's Indigenous community might have been mediated by community Elders but for the fact that the nature of the deceased's assets rendered valuable benefits inaccessible without a grant of letters of administration. Thirdly, the deceased's Indigenous community was necessarily involved in proof of their "traditional customary lore".
7. In all the circumstances, the appropriate form of costs orders is that: (a) the costs of the plaintiff (as prospective administrator, and residuary beneficiary, of the estate) be paid out of the estate of the deceased on the indemnity basis; and (b) the defendant's costs, capped at $30,000 (inclusive of GST), be paid out of the estate on the ordinary basis.
8. In adopting that form of orders, I note that, subject to the payment of disbursements not exceeding $2,200.00, the plaintiff's legal representatives accept that, acting pro bono, they have no personal entitlement to fees.

CONCLUSION

1. In drawing these proceedings to a close, I record that the plaintiff, as the person with the greater interest in the estate, should have a grant of administration in respect of the deceased's estate. Such a grant is most likely to serve due administration of the estate with a view to both the plaintiff and the defendant securing their entitlements without further, undue delay: Re Estate Wilson at [161]. The plaintiff should keep the defendant informed of progress in administration of the estate pending payment to him of his legacy.
2. Accordingly, I make the following orders: 1. ORDER, pursuant to section 134 of the Succession Act 2006 NSW, that the estate of Gerard Micah Kyle Jerrard ("the deceased"), who died at Tingha on 21 July 2016, be distributed in accordance with the following terms: 1. A legacy of $39,706.57 is to be paid to the defendant. 2. The residue of the estate of the deceased, after payment of testamentary expenses and costs, is to pass to the plaintiff for her own use and benefit. 1. ORDER, subject to further order, that no interest accrue on the defendant's legacy if paid within six months of the making of these orders, after and from which time the unpaid balance of his legacy is to accrue interest at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides. 2. ORDER that Letters of Administration of the estate of the deceased be granted to the plaintiff. 3. ORDER that the proceedings be referred to the Registrar for completion of the grant. 4. ORDER that the grant issue forthwith. 5. ORDER that any requirement for further compliance with the Probate Rules, and any requirement for an administration bond, be dispensed with. 6. RESERVE liberty to apply for an order that order 2 be discharged or varied in the event of delays incurred in collection of the deceased's estate. 7. ORDER that the plaintiff's costs of the proceedings be paid out of the estate of the deceased on the indemnity basis. 8. ORDER that the defendant's costs of the proceedings, capped at $30,000 (inclusive of GST), be paid out of the estate on the ordinary basis. 9. ORDER that exhibits and subpoenaed material may be returned forthwith, any exhibits returned must be retained intact by the party or person who produced the material until expiry of the time to file an appeal, or any appeal has been determined. 10. ORDER that these orders be entered forthwith.
3. The effect of these orders is that the plaintiff is to receive about 80%, rather than 50%, of the deceased's estate after payment of costs. The defendant will receive a legacy of about $40,000, less an allowance for unpaid child support.
4. I acknowledge the assistance of counsel and their instructing solicitors who, in the common interests of the parties, conducted the proceedings with thoughtful and efficient attention.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2018