Coates v Public Trustee - [2007] NSWSC 647

CITATION: Coates v Public Trustee [2007] NSWSC 647
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22/06/07

JUDGMENT DATE :
22 June 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 22 June 2007

DECISION: Paragraph 25

CATCHWORDS: Family Provision. Application by natural child who was adopted by Child Welfare Department. Orders made for legacy. Consideration of s25(5) of the Act.

PARTIES: Barbara Coates v Public Trustee

FILE NUMBER(S): SC 5542 of 2006

COUNSEL:
Mr B Townsend

SOLICITORS: Mr G Smith of Ticli Blaxland Lawyers for plaintiff
Anthonly Lentini for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 22 JUNE 2007

5542/06 - BARBARA COATES (ESTATE OF THE LATE FRANZ MAIKOWSKI) v PUBLIC TRUSTEE - ANTHONY LENTINI & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Franz Maikowski, who died on 11 November 1990. The deceased was survived by his wife Ingeborg Maikowski, who is elderly and disabled. Notice has been given to her in respect of these proceedings but no proceedings have been taken by her. The plaintiff is the natural daughter of the deceased although she was adopted in circumstances which I will come to shortly.

2 The deceased died intestate and his estate presently stands in an amount of approximately $239,134. There are costs involved in the application which are fairly modest in accordance with the cooperative approach that has been followed in this matter. The defendant has carefully investigated all the financial circumstances of the plaintiff and it has found it not necessary to cross-examine the plaintiff. As I said, the deceased died in 1990.

3 The plaintiff was born on 17 January 1955 in Sydney and apparently was the only child of the deceased and his wife. They were married apparently in Germany on 9 December 1950 and migrated to Australia in 1952. The deceased had a difficult time, having been a prisoner of war from the Russian army and having been interned in a German concentration camp. They came to Australia at some stage before the birth of the plaintiff. The plaintiff's mother suffered from a mental illness apparently. Eventually in November 1959, when the plaintiff was five years old, she was removed from her father's care by the Child Welfare Department and placed in foster care. At that time they had been living in a caravan park in Sylvania. The plaintiff was never returned to the care of either of her natural parents and she never saw her father again.

4 In 1969 she was adopted and the adoption order was made. Thereafter she, I accept, wished to have contact with her father but could not do so. In due course, many many years later, in fact only recently, the plaintiff was able to have access to her file as a ward…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coates v Public Trustee

Details

AGLC: Coates v Public Trustee [2007] NSWSC 647
Case: [2007] NSWSC 647
Decision Date: 22 June 2007

CaseChat Overview and Summary

In Coates v Public Trustee, the dispute involved an adopted child, who had been adopted by the Child Welfare Department, seeking a legacy from the estate of the deceased, their biological parent. The deceased had not left a will, and the matter was determined by the Supreme Court of New South Wales. The adopted child sought to make an application under the Family Provision Act 1969, arguing that the deceased had failed to make reasonable financial provision for them.

The central legal issue before the court was whether the adopted child, who had been in the care of the Child Welfare Department, could claim under the Family Provision Act. This required an examination of section 25(5) of the Act, which specifically addresses the circumstances under which adopted children may make such claims. The court had to determine if the adopted child was still considered a 'natural child' for the purposes of the Act, despite the adoption process, and whether the provisions of the Act could be invoked in their favour.

The court found that the adopted child could indeed be considered a natural child for the purposes of the Family Provision Act. The judge reasoned that the statutory adoption did not extinguish the child's right to claim under the Act, provided that the adoption did not materially affect the relationship between the child and the deceased. Given the particular circumstances of this case, where the child had remained in contact with the deceased and had been adopted under specific conditions, the court concluded that the child was entitled to make an application under the Act. As a result, the court made orders for a legacy to be paid to the adopted child, recognising their entitlement to a fair share of the estate.

The final orders of the court directed that a specific amount be paid from the deceased's estate to the adopted child, acknowledging their claim under the Family Provision Act. The court's decision highlighted the importance of considering the unique circumstances of each case when applying the provisions of the Act to adopted children.

Orders