In re McGaughey
[2000] TASSC 164
•27 November 2000
[2000] TASSC 164
CITATION: In re McGaughey [2000] TASSC 164
PARTIES: McGAUGHEY, Edna Jane, In re
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M42/1997
DELIVERED ON: 27 November 2000
DELIVERED AT: Burnie
HEARING DATES: 26, 27 October 2000
JUDGMENT OF: Crawford J
CATCHWORDS:
Family Law and Child Welfare - Child welfare other than under Family Law Act 1975 and related Acts - Paternity - Need for proof of paternity and of admissions by father for a purpose related to succession to property - Evidence of admissions - Whether proved paternity.
Re B [1958] NZLR 362; Re N [1976] 2 NZLR 404; Re Y (1984) 36 SASR 584, referred to.
R v Benz (1989) 168 CLR 110, applied.
Status of Children Act 1974 (Tas), s7(1).
Aust Dig Family Law and Child Welfare [132]
REPRESENTATION:
Counsel:
Applicant: P A Welch
Bruce Everet McGaughey: W M Griffiths
Suzanne Freeman: K H Targett
Lorna Dowde: R W Pearce
Solicitors:
Applicant: Public Trustee
Bruce Everet McGaughey: Archer Bushby
Suzanne Freeman: Ritchie & Parker Alfred Green & Co
Lorna Dowde: Douglas & Collins
Judgment Number: [2000] TASSC 164
Number of Paragraphs: 29
Serial No 164/2000
File No M42/1997
In re EDNA JANE McGAUGHEY
REASONS FOR JUDGMENT CRAWFORD J
27 November 2000
Edna Jane McGaughey died intestate and without issue on 27 October 1990 aged 76, never having married. Letters of administration of her estate were granted to the Public Trustee on 21 February 1991. She was one of two children of the marriage of William McGaughey, who was probably born in the 1880s and who died on 27 July 1967, and Annie McGaughey, who died on 29 June 1985. There was one other child of that marriage, Beryl Grace Miller (nee McGaughey), who was born on 30 December 1916 and died without issue on 13 June 1985.
The originating application asks whether Bruce McGaughey and Suzanne Freeman ("the claimants") are a brother and sister of Edna McGaughey, whether of the whole or half blood. If so, they are entitled to share between them her estate, which was sworn at $43,444. They claim that they are illegitimate children of a relationship between William McGaughey and Helen May Howard, who never married. Their mother was undoubtedly Helen Howard, but the crucial question is whether William McGaughey, who fathered Edna McGaughey, also fathered them. Bruce McGaughey was born on 31 October 1947 and Suzanne Freeman was born on 28 November 1950. William McGaughey was over 60 years of age when they were born and their mother, Helen Howard, was in her twenties.
On the hearing of the application, counsel appeared for the applicant (the Public Trustee as the administrator of the estate), Bruce McGaughey, Suzanne Freeman and Miss Lorna Dowde. On 4 March 1997, an order was made that Miss Dowde represent the next of kin, other than Bruce McGaughey and Suzanne Freeman.
By the Status of Children Act 1974, s3(1), for all purposes of the law of the State, the relationship between every person and his or her father and mother is determined irrespective of whether the father and mother were ever married to each other and all other relationships are determined accordingly. However, s7 applies a special rule when succession to property is concerned. For cases in which the parents of the child were not married to each other at the time of the child's conception or at some subsequent time, s7(1) provides that the relationship of father and child shall, for any purposes related to (inter alia) succession to property:
"… be recognised only if ¾
(a) …
(b)paternity has been admitted (expressly or by implication) by or established against the father in his lifetime (whether by one or more of the types of evidence specified by this Act or otherwise) …".
It was submitted by counsel for the claimants that all that needed to be proved by them was that William McGaughey, the father of Edna McGaughey, admitted that he was the father of the claimants. I reject the submission and hold that proof that Edna McGaughey's father admitted paternity is not enough. It must also be proved that he was in fact the father of the claimants. So far as concerns these proceedings, what s7(1) provides is that the relationship of father and child between William McGaughey, on the one hand, and the claimants on the other hand, shall for any purpose related to succession to the property of William McGaughey's daughter, Edna McGaughey, be recognised only if paternity was admitted by him or established against him in his lifetime. Proof that he was their father is not enough, but it is plain that it must nevertheless be proved. I reach that conclusion from a consideration of the legislation, but it is supported by authority. Under somewhat different legislation than here, for it required that the admission or establishment of paternity occur while both father and child were living, it was said by Adams J in Re B [1958] NZLR 362 at 366:
"It seems to me that there are two issues in respect of which an onus of proof rests on an applicant. In the first place, he must prove the natural relationship ¾ that is to say, that he is in fact a child of the testator. In the second place, he must prove the admission or establishment of the relationship while both parent and child were living. While the evidence which proves the one issue, may possibly in some cases be sufficient to prove the other, proof of either alone will not suffice."
Subject to the difference in the legislative provisions, those comments are applicable to the circumstances of this case. See also Re N [1976] 2 NZLR 404 at 406.
The death of William McGaughey was registered under the Registration of Births and Deaths Act 1895 six days after his death on 29 July 1967. The registered information included that he had left a widow called Helen May McGaughey. That was obviously a reference to the claimants' mother, Helen May Howard. There was no suggestion at the hearing before me that she ever married William McGaughey, but there is a great deal of evidence that they lived together for many years until shortly before his death. The registered information also included that he left surviving him one living son and three living daughters. That information is consistent with what the claimants maintain, that they, together with Edna Jane McGaughey and Beryl Grace Miller, were his children. The case of the next of kin, not including the claimants, is that Edna and Beryl were the only children of William McGaughey.
Bruce McGaughey's birth was registered as having taken place at the Victoria Hospital, Launceston on 31 October 1947. His mother was registered as being Helen Howard aged 22, born at Riana. (Mrs Lena Williams' evidence was that she and her half sister, Helen May Howard, were raised at South Riana.) The father's name was not registered, strongly suggesting that the birth was out of wedlock. Strangely, the baby's name was registered as Peter Arthur Howard. I accept the evidence, particularly of Bruce McGaughey, that he never used nor was he referred to as Peter Arthur Howard. He has always believed his name to be Bruce Everet McGaughey and he has always been referred to as that. He said that during his childhood he discovered that his mother's surname was Howard, although she always went by "McGaughey". He once asked her why his birth certificate gave his name as Peter Howard and she explained that her name was Howard. She did not explain why his first name was registered as Peter and he has no idea where the second name he uses, Everet, came from.
Suzanne Freeman's birth was registered as having taken place at the Victoria Hospital, Launceston on 28 November 1950. Her name was registered as Susanne Howard. Her mother was registered as Helen May Howard aged 24, born at Launceston. Notwithstanding the discrepancies concerning her mother's age and place of birth, compared with the registered particulars of the birth of Bruce McGaughey (otherwise known as Peter Arthur Howard), there is insufficient reason to doubt that the mother of Suzanne Freeman was the same person as the mother of Bruce Everet McGaughey. Once again, the father's name was not registered, suggesting that Suzanne Freeman was born out of wedlock.
Counsel for Miss Dowde did not argue that there may have been two men known as William McGaughey and on the evidence I conclude that there were not. There were some evidentiary conflicts, such as differences in records of the year of his birth, but they were insufficient to create significant doubt. Counsel for Miss Dowde did not argue that Bruce McGaughey is not one and the same person as Peter Arthur Howard and I conclude that he is.
There was ample evidence establishing that William McGaughey admitted that he was the father of the claimants, but a conclusion that he was in fact their father has not been such an easy one to reach. I will relate some of the material evidence, but before doing so point out that whether the claimants are the children of William McGaughey depends on events which occurred over 50 years ago. A number of witnesses gave evidence, by statutory declaration and affidavit and in most cases orally, but few of them were able to speak of events that occurred so long ago and those who could had memories which have suffered badly because of the passage of time and advancing years. I comment that no submission was made in reliance on the principles of Jones v Dunkel (1959) 101 CLR 298, that a person before the Court failed to give or call relevant evidence.
A 1991 statutory declaration of Allan Percey Jones was received in evidence. He said that he was a good friend of William McGaughey and that he first met him approximately 30 to 35 years prior to his death. The suggestion is therefore that they met between 1932 and 1935, but that could not be correct when regard is had to Mr Jones' next statement that when they first met, William McGaughey had with him a young boy whom he introduced as his son, Bruce. The boy was almost certainly Bruce Everet McGaughey, who was not born until 31 October 1947. Mr Jones said that at no time did William McGaughey talk about any other family he may have had, including children, and he never saw William McGaughey in the presence of any child other than Bruce. It might be thought surprising that a good friend of William McGaughey would not speak of the domestic set up at his home at the relevant time, nor make mention of Suzanne Freeman and her mother, Helen May Howard. He said that he had never heard of Edna Jane McGaughey. Mr Jones signed the statutory declaration with a shaky hand and I suspect that his memory was badly affected by age.
Another statutory declaration, made in 1992 by Robert William Kilby, was received into evidence. He also stated that he was a good friend of William McGaughey. He said that he had known him since the early 1950s and that while he was alive William McGaughey always referred to Bruce McGaughey as his son. Mr Kilby said that he had no knowledge that William McGaughey had any other children. As with Mr Jones, it appears likely that Mr Kilby did not visit William McGaughey's home when he was living with Helen May Howard and when Suzanne Freeman also resided there.
It was the evidence of the male claimant, Bruce Everet McGaughey, that his mother, Helen May Howard, died in Launceston in about 1975. As I mentioned earlier, despite the fact that his registration of birth was in the name of Peter Arthur Howard, it is his belief that he has always been known as Bruce Everet McGaughey, and he has never been referred to by others by any other name. He has no memory of ever being called Peter or Howard. He said that when he was a child he and his sister, Suzanne Freeman, lived with their mother and William McGaughey, who always treated them as his children. He referred to Bruce McGaughey as "Bruce" or "son" in public and private. He used expressions such as "come here son". When he met others, he would tell them that Bruce was his son. When he was about 10 years old, Bruce found out that his parents had never married. Somehow he discovered that his mother's real name was Helen Howard, notwithstanding that she always went by "McGaughey". He asked his father about it and the response was words to the effect, "don't worry about it, you are my boy and that's all that matters." Bruce attended Prospect Primary School in the name of "Bruce McGaughey". He lived with his mother and William McGaughey until they separated when he was aged about 18 years. That would suggest 1965 or 1966. However, he accepted that it might have been earlier than that. He said that until they separated, his mother and William McGaughey always shared the same bedroom and otherwise lived together as man and wife. They separated when they had a row and William McGaughey threw a pot of potatoes at her. She left and went to 60 Herbert Street, Invermay, to live with a Jack Higgins. Suzanne moved out and lived with her mother. Bruce McGaughey remained with William McGaughey until the day he died in 1967. Bruce McGaughey's evidence was that when he was about 20 years old William McGaughey died in his presence. Suzanne Freeman had by then returned to live with them, although she was away at the time of William McGaughey's death.
It was also the evidence of Bruce McGaughey that uncle Sam McGaughey used to come to the home. Other evidence established that William McGaughey had a brother called Samuel McGaughey and it was Bruce McGaughey's evidence that William McGaughey told him that Sam, the man who used to come to their home, was Bruce's uncle It was also Bruce's evidence that on one occasion a woman called Beryl came to the house and William McGaughey referred to her as being his "other daughter". No doubt Beryl was Beryl Grace Miller, William McGaughey's daughter..
The female claimant, Suzanne Maree Freeman, who was born on 28 November 1950, gave evidence that her mother and William McGaughey shared the same bedroom and always behaved as though they were married throughout the time they lived at 47 Stanley Street, Prospect. She believed at the time that they were married. Her mother was always known as "Mrs McGaughey". She did not discover that they were not married until 1967, when she applied for a birth certificate. She and her brother, Bruce, grew up in the one household with the two people they believed were their parents. She always regarded William McGaughey as her father and called him "Dad". She always went by the name of "McGaughey" and attended Ravenswood Primary School, Invermay Primary School and Brooks High School as "Suzanne McGaughey", even after her mother and William McGaughey separated. William McGaughey referred to her as "daughter", both in public and in private. He also called her "little Suzie". He would introduce her as his daughter.
Mrs Freeman said that her parents separated upon her mother going to live with Jack Higgins in Invermay. Her evidence was uncertain concerning when that occurred. At one point she said that she was 14 years old, attending Invermay Primary School and the year was about 1964 or 1965. However, other evidence established that she attended Brooks High School from 1964 until 1966, and on another occasion she said that her parents probably separated the year before she went to Brooks High School, which would suggest that the separation was in 1963. She confirmed that her mother had left her father by 1963, but further evidence conflicted with that for she said that they lived together until she was about 14, which would mean 1964 or 1965. She said that her brother Bruce continued to live with William McGaughey until his death on 29 July 1967.
While at Brooks High School, Suzanne Freeman fell pregnant to the man she later married, David Freeman. As a result she left school in about the middle of 1966. Her son was born on 21 December 1966 and she married David Freeman on 15 April 1967. She and her husband lived for a month or two in a flat and they then moved in with William McGaughey at 47 Stanley Street, Prospect until he died on 29 July 1967.
It was Suzanne Freeman's evidence that she met the deceased, Edna Jane McGaughey, on one occasion only. She had always thought that Edna was her auntie but on that occasion, when she went to William McGaughey's home and met Edna, he introduced Edna as "my daughter".
Evidence was also given by David Thomas Freeman, the husband of Suzanne Freeman, who confirmed that they married on 15 April 1967. He thought that he first met William McGaughey in about 1963 when Suzanne was aged about 13. He said that at that time her parents had separated and that Suzanne was attending Brooks High School, which means that it was no earlier than 1964. Mr Freeman's evidence was that from the beginning he called William McGaughey "Pop". Mr McGaughey always referred to Suzanne as "little Suzie" and she called him "Dad". He was an old man and lived at 47 Stanley Street, Prospect. When Mr Freeman married Suzanne in April 1967 they had a young baby and little money. Mr McGaughey wanted them to move in with him and a few months after they married they did so. Bruce McGaughey was also living there. Mr Freeman's evidence was that when he told William McGaughey that they would move in with him, the response was "my daughter and you Dave?" William McGaughey was so pleased that he wept. Mr Freeman agreed that he had not remembered that incident until the day before he gave evidence, and he was challenged about it when he was cross-examined by counsel for Miss Dowde. Whether the story was true or not is of no consequence. I accept the evidence of Mr Freeman that he, Suzanne and their child lived with William McGaughey and Bruce McGaughey, until William McGaughey died.
Shirley Joan Young attested, in an affidavit made in August 1997, that she had known Suzanne Freeman for about 34 years, which would suggest that she first knew her in about 1963. Mrs Freeman was then known as Sue McGaughey. She got to know Mrs Freeman well when she went to Brooks High School (in 1964). In about 1965 or 1966 Mrs Young boarded with William and Bruce McGaughey, and Mrs Freeman, for a few months, at a time when Helen May Howard was no longer living at the Prospect house. Mrs Young said that sometimes Suzanne Freeman lived with her mother and sometimes with William McGaughey. Both Bruce McGaughey and Suzanne Freeman called William McGaughey "Dad". William McGaughey referred to Suzanne Freeman as his daughter and would say things such as "come here daughter” when she would not do as she was told. However, most of the time he called her "Sue". I have no reason not to accept Mrs Young's evidence. She recounted an occasion when she was probably about 15½ years old (which would be in 1965 although she also said that she thought the occasion was in about 1966). Present were William McGaughey, Suzanne Freeman and Mrs Young. Mr McGaughey showed her what she recalled as an old black and white photograph of him with a little girl on his knee and she asked him who the little girl was. Mr McGaughey replied "that is me and my daughter" and on Mrs Young asking which daughter it was he said that it was Sue.
Patricia Grey gave evidence that she had known Suzanne Freeman since about 1960 when they both attended Invermay State School. They have been good friends ever since. Mrs Freeman was known as Suzanne McGaughey until she married David Freeman. Her memory of William McGaughey was that he seemed old to her at the time. She thought that Bruce McGaughey was living with him. She first met William McGaughey in 1960 when he was living at Prospect and Mrs Grey was living in Invermay. She often went to his Prospect home with Suzanne. Mrs Grey described William McGaughey and Suzanne as always being on good terms. He sometimes referred to her as "my special daughter". At that time Suzanne Freeman's mother lived in Herbert Street, Invermay, with Jack Higgins, as did Suzanne, and Mrs Grey visited that house also. There seemed to be a conflict between Mrs Grey's evidence about that and the evidence of Bruce McGaughey and Suzanne Freeman that William McGaughey and Helen May Howard separated some time between 1964 and 1966. She said that at that time Suzanne was supposed to live with her mother, but most of the time she lived with William McGaughey. Mrs Grey said that she did not see much of Suzanne Freeman when at high school but afterwards that they both worked at an Invermay dry cleaning shop and renewed their friendship and during that time she went to William McGaughey's home once or twice a week. On those occasions he referred to Suzanne Freeman as his "special daughter". Mrs Grey confirmed that after the marriage of Suzanne and David Freeman they moved in with William McGaughey until his death.
The only other witness to give evidence was Lena Vera Williams. According to her date of birth as given by her, she is 73 years of age, but I thought that she presented as a much older person. That may partly have been because she was fairly deaf. Her memory seemed poor at times and my impression in that regard may well have been compounded by her difficulty in hearing questions. She said that she was the half sister of Helen May Howard who died on 4 December 1977 and who was the mother of Bruce McGaughey and Suzanne Freeman. Both of those children had used the surname of McGaughey at all times. It was her evidence that she had known Bruce McGaughey and Suzanne Freeman all of their lives. She said that William McGaughey and Helen May Howard lived as man and wife, commencing a few years before Bruce's birth, until they separated in the early 1960s. She was the only witness to speak to the commencement of the cohabitation of William McGaughey and Helen Howard and as a result she was potentially the most important of all the witnesses. If I accepted her evidence that cohabitation of William McGaughey and Helen Howard commenced some years before Bruce's birth, I would have absolutely no difficulty finding that William was the father of the claimants. Conscious of the need for particular care when scrutinising her evidence, I called for it to be transcribed. After perusing the transcript I conclude that I should not accept Mrs Freeman's evidence in that regard, for two particular reasons. One was because of the vagueness and uncertainty about her evidence, despite what I unhesitatingly concluded were her honest efforts to be accurate. As to the time of the commencement of cohabitation, she confessed to not being able to remember "exactly" and to not knowing. The other reason arose out of a passage of evidence concerning her first seeing Bruce McGaughey. She related that he was a newly born baby and in his mother's arms and that his mother, Helen Howard, then introduced a man to her as Bill McGaughey and the father of her newly born child. I accept it is probable that she does remember that event, but it suggests that she did not meet William McGaughey until shortly after Bruce McGaughey's birth.
Mrs Williams lived with William McGaughey and Helen Howard for a period of about three years or a little less. She was confused concerning when it was. Essentially, however, she believed that she commenced to live with William McGaughey and her half sister Helen Howard, when she was 22 years of age, and that after a period of about three years at their home she married and moved to an address at Legana. She said that she was 25 years of age when she married. That evidence therefore suggests that she commenced to live with William McGaughey and Helen Howard in 1949 or 1950 and moved out in 1952 or 1953. The problem, however, in accepting the accuracy of her recollection arises out of the date of birth of Suzanne Freeman, which was on 28 November 1950. Mrs Williams made no mention of Suzanne being a baby. In fact at one point in her evidence she said that Bruce was aged about five years, an age he did not in fact reach until 31 October 1952, and she said that Suzanne was aged about two or three years. Mrs Williams said that she lived with them at an address in Brisbane Lane, Launceston and while she was there William McGaughey and Helen Howard shared the same bedroom. Bruce McGaughey and Suzanne Howard always called William McGaughey "Dad" and he referred to them as "son" and "daughter". He always talked about them as if they were his children. He was proud of them. Helen Howard was often quite sick, being an asthma sufferer, and when she was having treatment and unable to look after the children, William McGaughey took care of them and was always good to them.
It was not Mrs Williams' recollection that at the relevant time, in about the early 1950s, William McGaughey was nearly 70 years of age, which he would have been. She thought that he was probably in his 50s and she said that he used to work for the Council. I am unable to resolve the conflicts that evidence suggests. As stated earlier, I find that whenever William McGaughey was referred to by witnesses they were referring to the same person. I have no real doubt that he would have ceased to be employed by 1950, by which time he would have been aged 65 or older. Finally, I record Mrs Williams' evidence that William McGaughey and Helen Howard separated some years after she had lived with them.
Upon the basis of the evidence I make the following findings. William McGaughey, the father of Edna Jane McGaughey, lived with and occupied the same bed as Helen May Howard, the mother of the claimants, at least from the time when Bruce McGaughey was a young boy and probably from no later than 1950 when he was aged two or three years, or thereabouts. He may have done so from a date prior to Bruce McGaughey's conception in early 1947, but there is no direct evidence which establishes that. The only witness who purported to be able to speak about that was Lena Williams and her recollection created such uncertainty as to prevent its acceptance. Throughout the childhood of each of the claimants, commencing from 1950 or thereabouts, until he died in 1967, William McGaughey treated them as his children and they regarded him as their father. There was never any doubt in the minds of the claimants in that regard. Throughout that period of time he presented them to the outside world as his children. I have no hesitation in finding that he admitted that they were in fact his children. The evidence established that there was an emotional attachment between William McGaughey and each of the claimants, similar to that of a natural parent and child.
Counsel for Bruce McGaughey pointed out that it was not a casual liaison between William McGaughey and Helen Howard, but a long-term relationship as de facto husband and wife. The claimants and Helen Howard used McGaughey as their surname. Helen was known as Mrs McGaughey.
The remaining question is this. Is it open to find and has it been established that William McGaughey was the natural father of the claimants, notwithstanding that there was no acceptable evidence that his cohabitation with Helen Howard commenced prior to the dates of conception of the claimants? I determine that I may safely conclude that the lack of witnesses to speak to the events surrounding the years of conception, say between 1945 and 1950, was brought about because of the passage of over 50 years. No doubt many witnesses who could have provided material information, have died. Some have lost their ability to accurately recollect those post-war times. But it has not been shown to be a case of available witnesses not giving evidence.
The evidence satisfies me that the claimants' parents were not married at the time of their birth. That fact may be inferred from their birth certificates, which do not disclose the identity of the father. I find, because it is most likely, that their father was William McGaughey. I make that finding from the circumstances which were clearly established as existing from the time the claimants were very young children, that is to say the domestic circumstances in William McGaughey's home. He treated them as his children, and their mother acted as if he was too. It may, I think, safely be accepted that he was in fact their father. It was said by Mason CJ in R v Benz (1989) 168 CLR 110 at 117, that statements affirming the relationship of parent and child made by either party to that relationship, evidence the belief of the speaker that the relationship existed, so long at least as the statement is not made in such circumstances as to indicate that it may not express the genuine belief of the speaker. His Honour continued:
"As a matter of everyday life people behave and speak in a way that reflects their beliefs as to their relationships with other persons. Our experience of human affairs shows that these expressions of belief are, generally speaking, reliable, at least in the case of close relationships such as parent and child, brother and sister. There is, accordingly, a strong foundation for receiving utterances reflecting the speaker's belief in his or her close relationship with another as evidence of that relationship and for regarding the admission of that evidence as standing outside the operation of the hearsay rule."
See also the discussion of Olsson J in Re Y (1984) 36 SASR 584 at 588. It was not submitted otherwise by counsel for Miss Dowde. He did, however, submit that because of the lack of evidence of circumstances at about the time of the conception of each claimant, I should conclude that it was possible that William McGaughey was not in fact their father, and merely lived with their mother and in loco parentis towards them when he acted as if he was their father. Possibly that is so, but on the balance of probabilities I am satisfied that the evidence has established that he was in fact their natural father. He and Helen May Howard appear to have believed that he was and they were in a position to know whether it was likely to be true.
For these reasons the question asked in the originating application whether Bruce McGaughey and Suzanne Freeman are a brother and sister of Edna McGaughey, whether of the whole or half blood, will be answered in the affirmative with respect to each.
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