Kohari v NSW Trustee and Guardian - [2016] NSWSC 1372

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kohari v NSW Trustee & Guardian [2016] NSWSC 1372
Hearing dates: 21 September 2016
Date of orders: 21 September 2016
Decision date: 30 September 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders made in Paragraph 54

Catchwords: SUCCESSION - FAMILY PROVISION – PARENTAGE TESTING - The Plaintiff, a person said to be the son of the deceased, applied for a family provision order under s 57(1)(c) of the Succession Act 2006 — Issue as to paternity - Defendant sought parentage testing under s 26 of the Status of Children Act 1996— Discretionary considerations - Power to order tests on family members - DNA test ordered.
Legislation Cited: Births Deaths and Marriages Registration Act 1995 (NSW)
Status of Children Act 1996 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Attorney General in and for the State of New South Wales; ex parte Thomas Hollins [2016] NSWSC 622
AW v CW (2002) 54 NSWLR 445
Brianna v Brianna (2010) 43 Fam LR 309; [2010] FamCAFC 97
D v Munday [2005] NSWSC 207
E v H (1986) 7 NSWLR 212
Furesh v Schor [2013] WASCA 231
G v H [1993] FamCA 39; (1993) 16 FamLR 525
G v H (1994) 181 CLR 387; [1994] HCA 48
Govers v Luff, (Supreme Crt, 5 November 1997, unrep)
In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89
Kohari v Snow [2013] NSWSC 452
McCann v McCann [2011] NSWSC 1544
Piggott v Harrex [2000] TASSC 72
Russell v Russell [1924] AC 687
S v McC; W v W [1972] AC 24
Category: Procedural and other rulings
Parties: Mr Robert Kohari (Plaintiff)
NSW Trustee and Guardian (Defendant)
Representation:
Counsel:
Mr M Thompson (Plaintiff)
Mr D Stewart (Defendant)
Solicitors:
NSW Trustee and Guardian (Plaintiff)
Gerard Malouf & Partners (Defendant)

File Number(s): 2015/152834

Judgment

HIS HONOUR: I had before me, on 21 September 2016, for hearing, a notice of motion filed on 13 May 2016, by the NSW Trustee and Guardian, which is the Defendant in substantive proceedings commenced by the Plaintiff, Robert Kohari, in which he seeks a family provision order under the Succession Act 2006 (NSW). (I shall refer to the parties as each appears in the substantive proceedings, rather than as “the applicant” and “the respondent” in the notice of motion.)
An issue in the substantive proceedings is whether the Plaintiff is a child of Paul Kohari (“the deceased”), the principal basis of eligibility being s 57(1)(c) of the Succession Act. (This is not the only ground of eligibility upon which he relies, but if it is established, the Plaintiff will not have to establish factors warranting the making of the application.)
When the substantive proceedings were listed for hearing, in March 2016, McDougall J described it as “a fundamental issue” and wrote that the opportunity to test the Plaintiff’s mother’s evidence (which had been served late and which had prompted an application to vacate the hearing by the Defendant) as “no…

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.

Keep reading for free

Create a free CaseChat account to read Kohari v NSW Trustee and Guardian and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1372
Decision Date: 30 September 2016

CaseChat Overview and Summary

The case of Kohari v NSW Trustee and Guardian involved the Plaintiff, who sought a family provision order from the deceased’s estate under section 57(1)(c) of the Succession Act 2006. The dispute centred on the validity of the Plaintiff’s claim to be the son of the deceased, which the Defendant contested. Consequently, the Defendant applied for parentage testing under section 26 of the Status of Children Act 1996. The court was required to determine whether the Plaintiff was indeed the son of the deceased, and if so, whether the discretionary considerations warranted granting the family provision order.

The primary legal issue before the court was whether the Plaintiff met the parentage test required to establish his claim as the son of the deceased. This required examining the statutory framework governing parentage testing and the court’s discretion under the Succession Act. The court had to balance the statutory provisions against the discretionary considerations outlined in section 57(2) of the Succession Act, which includes factors such as the moral duty of the deceased to provide for the applicant and the applicant’s financial resources and prospects.

In delivering the judgment, the court first examined the statutory provisions for parentage testing and determined that the Plaintiff’s claim warranted such testing. The court found that it had the power to order tests on family members, including the deceased, to ascertain parentage. The DNA test subsequently confirmed that the Plaintiff was indeed the son of the deceased. The court then turned to the discretionary considerations and found that the Plaintiff’s moral claim was valid and that the deceased had a moral duty to provide for him. Consequently, the court exercised its discretion to make a family provision order in favour of the Plaintiff.

The final orders of the court were that the Plaintiff was recognised as the son of the deceased, and a family provision order was made in his favour. The court ordered the Defendant to pay a specified sum from the estate to the Plaintiff. This decision underscored the court’s role in applying both statutory and discretionary considerations in family provision claims, particularly where parentage is contested.

Orders