[2020] TASSC 42
COURT: SUPREME COURT OF TASMANIA
CITATION: Baily v DE Vries [2020] TASSC 42
PARTIES: BAILY, Sally
BENNETT, Cheryl Maree
v
DE VRIES, Mark Richard
LUNN, Patrick James Forbes (as executors of the estate of the late Raymond Leonard Griggs)
VOSS, Cheryl Frances
GRIGGS, Cathy Barbara
FILE NOS: 1986/2017 and 2646/2017
DELIVERED ON: 26 August 2020
DELIVERED AT: Hobart
HEARING DATES: 18, 22 May 2020, 11, 24 June 2020, 5, 14 August 2020
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Adult daughters – Estate comprised mostly of farming property – Three daughters – Farmland devised to one daughter – No material bequests to the other two daughters – Further provision made for the other two daughters.
Testators Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1433]
REPRESENTATION:
Counsel:
First Applicant: T Williams
Second Applicant: A Bond
First Respondents: J Otlowski, S McCullough (18 May) and
S McCullough (5 August)
Second Respondent: Z Nicholson
Third Respondent: D Zeeman
Solicitors:
First Applicant: Timothy Williams
Second Applicant: Murdoch Clarke
First Respondents: Simmons Wolfhagen
Second Respondent: Tremayne Fay Rheinberger
Third Respondent: Butler McIntyre & Butler
Judgment Number: [2020] TASSC 42
Number of paragraphs: 58
Serial No 42/2020
File No 1986/2017
2646/2017
SALLY BAILY and CHERYL MAREE BENNETT v
MARK RICHARD DE VRIES, PATRICK JAMES FORBES LUNN,
CHERYL FRANCES VOSS and CATHY BARBARA GRIGGS
REASONS FOR JUDGMENT HOLT AsJ
26 August 2020
Introduction
Raymond Leonard Griggs died on 19 September 2016 aged 84 years. He was survived by his partner, Cheryl Voss (the second respondent), then aged 67 years. The couple had been in a significant relationship since commencing cohabitation in 1988. Cheryl Voss had been widowed in 1982 when her husband died of drowning, leaving her with the care of her four young children. Mr Griggs was also survived by his three adult daughters, Sally Baily (the first applicant), Cheryl Bennett (the second applicant), and Cathy Griggs (the third respondent), respectively then aged 55, 56, and 53 years. The mother of Mr Griggs' three daughters had died in 1992, having been separated from Mr Griggs since the early 1980's and divorced several years later. The daughters had inherited nothing from their mother's estate.
Mr Griggs made a will about a month before he died appointing the first respondents as his executors.
He left the family home at 5 Glen Huon Road, Huonville to the second respondent. The home sits on 2602 square metres of land and as of 2020 had a value of $895,000. The will specifies that the residue of the estate was to pass on an intestacy. The residue has a current value, after the payment of estate liabilities of about $170,000, and under intestacy legislation passes to the second respondent. Mr Griggs and the second respondent held a joint bank account having a credit balance at the date of death of about $400,000. This money did…
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CaseChat Overview and Summary
The court was required to consider whether the presumption of parentage arising from the registration of birth could be rebutted, and if so, under what circumstances. The court also had to consider whether an order should be made requiring a parentage testing procedure to be carried out, and if not, what alternative methods could be used to rebut the presumption. The court's reasoning and outcome were based on the evidence presented and the specific facts of the case, including the potential health risks posed by the proposed parentage testing procedure during the Covid-19 pandemic. Ultimately, the court dismissed the application for parentage testing and proceeded on the basis that the applicants were eligible to bring their applications for family provision.
The final orders of the court are not explicitly stated in the provided text. However, it can be inferred that the court dismissed the application for parentage testing and allowed the family provision applications to proceed. The specific details of the final orders would depend on the outcomes of the family provision applications, which are not provided in the text.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The deceased is listed as the father of the second applicant on her birth certificate. This gives rise to a presumption of parentage pursuant to the Status ofChildren Act 1974, s 8A, which is as follows:"8A Presumption of parentage arising from registration of birthA person whose name is entered as the parent of a child in a register of births or parentage information kept under a law of this State, the Commonwealth, another State, a Territory or a prescribed overseas jurisdiction is presumed to be the parent of the child." However the presumption is rebuttable, s 19 provides:"19 Rebuttal of presumptionsA presumption arising under this Act is rebuttable by proof on a balance of probabilities." During the pre-trial phase, the third respondent brought an interlocutory application seeking an order requiring a parentage testing procedure to be undertaken. It was proposed to use a sample of DNA to be taken from a tissue sample extracted from the deceased (for medical diagnostic purposes) shortly prior to his death, with the other sample to be taken from the second applicant. Whether an order should be made requiring a parentage testing procedure to be carried out is a discretionary matter under the Status of Children Act, s 13. The Act does not specify the matters which should be taken into account in the exercise of the discretion. In dealing with equivalent legislation, Hallen J in Kohari v NSW Trustee and Guardian [2016] NSWSC 1372 said at [34] that the discretion is unfettered but is to be exercised judicially and in accordance with the specific facts arising in each case. In my reasons for dismissing the application, delivered orally on 27 March 2020, I concluded that the raising of the issue was not an abuse of process as the third respondent had found documents sufficient to justify putting paternity in issue. I was satisfied that the results of testing, if ordered, would likely be of significant probative value. But the second applicant suffered from a condition resulting in her having a suppressed immune system. I accepted evidence that, in light of the Covid-19 pandemic, the taking of a sample would expose the second applicant to a special health risk. Waiting for the pandemic to pass would potentially cause a lengthy delay in bringing to trial the substantive applications for family provision. The dismissal of the application did not prevent the third respondent from seeking to rebut the presumption arising from the birth certificate in other ways. However, at the conclusion of the evidence counsel for the third respondent made no submission challenging paternity. Accordingly, I proceed on the basis that the applicants are eligible to bring their applications for family provision. The evidence presented at the trial by way of affidavits and exhibits was voluminous. It is neither practical nor necessary for me to refer to it in detail. The facts which I recite in the course of these reasons, except where otherwise stated, were not in controversy by conclusion of the evidence.