Public Trustee v Solah

[1999] NSWSC 660

CITATION:	Public Trustee v Solah & 6 Ors [1999] NSWSC 660
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4635/97
HEARING DATE(S):	15/06/99
JUDGMENT DATE:	2 July 1999
PARTIES :	Public Trustee - Estate of Francis Solah v Donald Souglas Solah & 6 Others
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr B. Townsend for the plaintiff Mr J. Wilson for the 1st defendant Mr A.L. Hill for the 2 and 3 defendants Mr P. Blackburn-Hart for the 4,5,6 & 7 defendants
SOLICITORS:	P.J. Whitehead for the plaintiff Devitt Williamson Isabella, Dapto for the 2 and 3 defendants Lane & O'Rourke for the 4, 5, 6 & 7 defendants
CATCHWORDS:	Succession. Next of kin enquiry. Proper approach to such an enquiry. Need for claimants to prove their claims. Walsh v Weigall (1887) 13 VLR 449 at 453 applied.; Presumption in s 9 and s 10 considered.
DECISION:	Para 56

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Friday 2 July 1999

4635/97 PUBLIC TRUSTEE v DOUGLAS SOLAH AND OTHERS

JUDGMENT

1    MASTER: This is the hearing of an enquiry into the identity of the next of kin of Francis Solah (the deceased) late of Mittagong in the State of New South Wales retired market gardener. The deceased died on the 27 November 1989 at the age of 85 years. On 19 January 1929 the deceased married a Doris Graham. He and his wife appear on the evidence to have cohabited for a short period of time before she left him. She has not been located. The evidence proves that the deceased had no defacto wife and no issue. His parents, his brothers and sisters predeceased him.

2    In the event that the deceased’s wife is not alive the deceased’s estate is held in statutory trust for the brothers and sisters of the whole blood. The deceased’s mother, Sophia Solah (herein called Sophia), had ten children. The deceased was the second youngest and was born during the currency of her marriage to the deceased’s father, Norman Kallil Solah (herein called “Kallil”). There were two other children born during the currency of that marriage, George Solah who is the father of the second and third defendants and John Michael Solah. Of the seven children born prior to the deceased’s mother’s marriage to Kallil the first six were registered as the children of a marriage to a Henry Brookfield. No registration of this marriage has been uncovered but these six children could only be brothers and sisters of the half blood. The seventh child born prior to the marriage to Kallil was named “Norman”. His birth was registered under the surnames Brookfield and Drummond (his mother’s maiden name). That registration shows no details of his father. Norman was the father of the first defendant, Donald Douglas Solah and the persons represented by him. Their claim is that Kallil was Norman’s father which would make Norman a brother to the deceased of the whole blood.

3    The deceased’s younger brother John Michael Solah was clearly a brother of the full blood. The issue in relation to his part of the family is whether he was the father of the fourth, fifth, sixth and seventh defendants. Those defendants all have the same mother. However, they were all born during the currency of their mother’s marriage to a man named Thomas Chisnall and their birth certificates all show this man Chisnall as their father. They contend, however, that John Michael Solah was in fact their father.

4    On 26 November 1996 orders were made, first for the appointment of the first defendant, Donald Douglas Solah, to represent all the issue of the deceased’s late brother Norman Solah in the proceedings and, second, that the second and third defendants represent all the issue of the deceased’s late brother, George Essel Solah, in the proceedings.

5    There are in effect three disputed areas that need consideration in this enquiry to determine the next of kin of the deceased. They are:-

1. Should there be a distribution of the estate on the basis that the deceased’s wife is excluded?

2. Was the deceased’s late brother, John Michael Solah, the father of any of the fourth, fifth, sixth and seventh defendants?

3. Was the deceased’s late brother, Norman Solah, of the full or half blood to the deceased?

6    Attached as an appendix to these reasons for judgment are five Family Trees. The first Family Tree is that of the relationship between Kallil and Sophia. The second Family Tree gives details of the family of Norman. The third gives details of the family of George. The fourth gives details of the family of John Michael Solah and the fifth gives the details of the children of Sophia Drummond and Henry Brookfield.

1. Should there be a distribution of the estate on the basis that the deceased’s wife is excluded?

7 The present proceedings are brought pursuant to Part 68 of the Supreme Court Rules which allows me to make an order for relief without general administration. In the present proceedings it is necessary to make a finding that the next of kin who are entitled on the intestacy of the deceased consists of those persons who have come in and proved their claim. The proper approach in respect of such an enquiry was referred to in Walsh v Weigall (1887) 13 VLR 449 at 453.

“The object of an administration decree is to enable the estate to be distributed with safety to the executor or administrator who, acting under the direction of the Court, is protected even if other claimants may afterwards come forward and establish their claims. But such distribution, whilst it protects the executor or administrator, in no way precludes the rights of subsequent claimants, who may at any time institute proceedings against the persons amongst whom the estate has been distributed to compel them to refund in whole or in part, as the case may be, what they have received. If the view of the Chief Clerk be correct, then in many cases it would be impossible ever to distribute the estate at all. The mistake into which he has fallen, I think, is that he regards the decree as imposing a duty upon him to report all the possible next-of-kin, and to forbear reporting until it has be demonstrated that there are and can be no others than those he reports; whereas his duty is to take all necessary steps by advertisement or to otherwise to invite claimants, and then to report only such as have proved their claims before him.
. . . the rights of persons shown by evidence to occupy a certain relationship to the testator or intestate cannot be ignored on the mere surmise that there may possibly be in existence and unheard of, other persons of equal kin or nearer of kin than they. The practice I have stated was that which prevailed before the Judicature Act, and the practice under that Act has not been altered in this respect, . . .”

8    The evidence before me establishes the entitlement of the issue of the deceased’s later brother, George Solah. These persons are represented in the proceedings by the second and third defendants. Accordingly, it is necessary for the others to prove their claim which might either share with the claim of the brother, George Solah, or oust that claim.

9    The evidence before me establishes that the deceased married a Doris Graham nee Jones at Mittagong, New South Wales on 19 January 1929. The marriage certificate indicates the deceased’s wife was aged 25 years at that stage giving a birth date of approximately 1904. She was described as a widow having been born in Wakefield, England. Her parents were Wilmott Gilbert Jones and Doris Jones nee Talbot.

10    The plaintiff has carried out extensive searches in an effort to trace the deceased’s wife. These included the following:-

1. Searches for any record of the divorce in all of the State and Territory Supreme Courts, the Family Court of Australia and the Family Court of Western Australia. There is no record of any divorce.

2. Searches for any record of the death of Doris Solah in all States and Territories. There is no record of any death.

3. Searches for issue in New South Wales under the names of Doris Graham, Doris Jones and Doris Solah. No record of any issue was ascertained.

4. Searches of the New South Wales Electoral Roll on 20 February 1995 and the Australian Electoral Roll on 28 August 1997 showed no result.

5. Enquiries were made of the Commonwealth Department of Social Security seeking any records which they might have to no avail.

6. Searches were made in the United Kingdom for any record of the death of Doris Solah, Graham or Jones. This resulted in six persons with the name of Doris Graham as deceased. However, the death certificates do not correlate with what is known of the deceased’s wife.

11 There has been extensive advertising calling on persons to bring in claims pursuant to s 92 of the Wills, Probate and Administration Act. The advertising included the Southern Highland News, a newspaper, which is circulated in the district where the deceased resided and in capital city newspapers. There was also advertising in the United Kingdom. No response has been received from any of that advertising.

12    The only evidence which touches upon the marriage appears to be that given by Donald Douglas Solah who was a son of Norman Solah. He was born on 24 September 1929 and at the time of giving his evidence was 65 years of age. He gave evidence that his mother kept a close relationship with the deceased throughout their joint lives. Donald heard the deceased describe himself as a married man on more than one occasion but he had never met his wife. Donald, of course, was born in the same year that the deceased married. His mother gave him information about the marriage of the deceased in the following terms:-

“Frank married this Doris Graham. She had two children and she married Frank because she thought he had money. When they got married Frank took her out rabbit trapping and it only lasted about six weeks. When he came back one day, she had gone taking everything with her. All he had left was his tent and rabbit traps. She was never seen again.”

13    Donald’s mother married Norman in 1923 some years prior to the marriage between the deceased and his wife. Accordingly, she would be in a position to speak of what happened to that marriage given the contact of which she has given evidence. In these circumstances this evidence should be accepted.

14    The question was raised as to whether the court could presume the death of the wife given the evidence. This unfortunately would not assist as the presumption does not authorise the finding that she died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the person no longer lives. See Axon v Axon (1937) 59 CLR 395 at 405.

15    I am satisfied that the deceased’s wife left him some six weeks after the marriage and that she cannot be traced. I am satisfied that there has been appropriate advertising to enable the deceased’s wife to bring in her claim but she has not done so. In these circumstances given that there are others who have proved their entitlement the distribution should proceed without having regard to the claim of the deceased’s wife. An appropriate form of order may be to the effect of that in Re Benjamin, Neville v Benjamin (1902) 1 Ch 723 and the parties may wish to address on that aspect.

2. Was the deceased’s late brother, John Michael Solah, the father of any of the fourth, fifth, sixth and seventh defendants?

16    The deceased’s brother, John Michael Solah, I am satisfied is the brother of the full blood. Any children of his would be entitled to share in the estate of the deceased on intestacy. John Michael Solah predeceased the deceased having died on 24 August 1962. He married Mavoura Everald Maxted Chisnall nee Mann (herein called Mavoura) on 19 June 1940. She had married Thomas H.R. Chisnall on 7 April 1924. The third defendant, a child of Mavoura, was born on 3 October 1930. The fourth defendant was born on 16 February 1932, the fifth defendant on 13 September 1933 and the sixth defendant on 27 May 1935. In each case the father on the birth certificate is recorded as Thomas Henry Reuben Chisnall, Seaman. Mavoura also had an earlier child but there is no suggestion that that child’s father was John Michael Solah. That child, Margaret H., was born in 1926 and she appears on the evidence to be the child of Mavoura and Thomas Chisnall.

17    The Status of Children Act 1996 contains a number of presumptions of parentage which are relevant to the present question. Under s 11(1) a person is presumed to be a child’s parent if the person’s name is entered as the child’s parent in the Register. In this case the application of the presumption would mean that in respect of the third, fourth, fifth and sixth defendants their father was Thomas Chisnall and that therefore they are not issue of the full blood.

18    Section 9(1) of the Act contains a presumption that a child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her husband. That presumption would apply in this case.

19    Under s 10 there is a presumption that a child born to a woman is presumed to be a man’s child if, at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the man and the woman cohabit but are not married.

20    Under s 15(1) it is provided that a presumption arising under this Division, or a parentage presumption arising under any other Act or rule of law, that is rebuttable, is rebuttable by proof on the balance of probabilities.

21    Subsection (2) provides that the presumptions under s 10 and s 11 are rebuttable presumptions.

22    Section 16 of the Act provides that if two or more rebuttable presumptions referred to in section 15 conflict with each other and are not rebutted in any proceedings, the presumption that appears to the court to be more or most likely to be correct prevails.

23    There is both documentary evidence and a body of affidavit evidence dealing with the circumstances surrounding the paternity of the fourth, fifth and six defendants. The documentary evidence consists of records relating to the marriage and divorce of the mother of the fourth, fifth and sixth defendants, Mavoura. It is apparent that Thomas and Mavoura Chisnall were married on 7 April 1924 as I have recounted and that a decree nisi of the dissolution of that marriage was pronounced on 25 January 1938. That decree found established as facts the marriage and the ground for the divorce which was that the respondent, Mavoura, had without just cause or excuse wilfully deserted the petitioner and without any such cause or excuse left him continuously so deserted during three years and upwards. The affidavit in support of the petition was sworn by the petitioner, Thomas Chisnall, which affidavit was made on 29 April 1936.

24    In paragraph 5 of that affidavit he swore, “My said wife has without just cause or excuse wilfully deserted me and without such cause or excuse has left me continuously so deserted during three years and upwards.”

25    The affidavit evidence addressed the cohabitation of John Michael Solah and Mavoura from 1929 until separation many years after the fourth, fifth, sixth and seventh defendants were born.

26    Evidence was given by Esmeralda Powe who was a sister of Mavoura. She was born in 1912 and, accordingly, was 86 years of age when she swore her affidavit. She said that her memory was good for a person of her age. Apparently her family lived at Mittagong near Kallil’s family where she was born. When the deponent was about 16 or 17 years of age she was living at South Hurstville. On an occasion at that time Jack Solah (John Michael Solah) brought his mother to see the deponent’s mother. At that time Jack asked the deponent to go out with her but she refused as she was already going out with another young man. Jack apparently continued to make approaches but these were rebuffed by the deponent who arranged for her sister, Mavoura, who was then living opposite her with her daughter, Margaret, to go and meet Jack. She gave evidence of her sister and Jack going out together for a short period and then deciding to get married. She recounts that her sister’s husband, Tom Chisnall, would not give her sister a divorce and she recalls her sister and Jack having four children, Norma, John, Joan and Don while living together as man and wife. Her sister worked for a family called Silva and she recalls her sister and Jack purchasing the hamburger shop from this family under the old Palais in Parramatta Road, Leichhardt. She also gave evidence of the separation of Thomas Chisnall and her sister after the birth of their child, Margaret, and that she had not seen Thomas Chisnall since that separation. The child, Margaret Hill, gave evidence and her evidence was to the effect that her earliest recollections were of living in a family with her mother, Mavoura, and John Michael Solah. She recalls when Norma was born in October 1930 going to the Royal Hospital for Women at Paddington to see her newly born sister. She was also living with her mother Mavoura and John Michael Solah when the children, John, Joan and Donald were born. She moved to live with her maternal grandparents when she was 13 years old and after that time she discovered that her actual father was Thomas Chisnall who was a seaman who apparently visited Sydney on an irregular basis.

27    The fourth defendant, Norma Everald Bless gave evidence. As I have mentioned, she was born on 3 October 1930 and at the time of swearing her affidavit was 67 years of age. She had suffered a stroke in 1988 but had recovered sufficiently to be able to make her affidavit. She gave evidence of her early family life when she lived with John Michael Solah and her mother, Mavoura. She addressed them as “dad” and “mum”. Similarly her parents referred to each other as either “Mavoura” and “John” or “Jack” respectively. She remembers them living together at the time of birth of her youngest brother, Donald and continuing until they separated a year or two prior to her mother’s death. She recounts how her father introduced her as, “my daughter, Norma” and the fact that from about 14 years of age she used to work in her parents’ hamburger shop underneath the old Palais in Parramatta Road, Leichhardt. She recalls an incident when an American serviceman asked her out in the shop in her father’s presence. Her father responded by refusing and asking, “Do you know how old she is? This is my daughter. She’s too young to go out.” She gave evidence of a normal family relationship as she grew up and had her children. This involved John Michael Solah being addressed by her children as “grandfather”. She also spoke of her elder sister, Margaret, who was known as “Peggy”. She apparently lived with her mother’s mother although she did come and stay for a short time with the deponent’s family.

28    The seventh defendant, Donald Barry Solah, also gave evidence. He was born on 27 May 1935. He gives similar evidence to that of his sister, Norma, as to the family situation. He remained with the family until his parents separated when he went to stay for a while with an aunt in Queensland. In due course he returned and lived with John Michael Solah and his sister Joan and brother John. He like his sister, Norma, did not find out that their birth certificates showed their father as Thomas Chisnall until after John Michael Solah had died.

29    All the above evidence is consistent with there having been cohabitation between John Michael Solah and Mavoura Chisnall from 1929 until separation many years after the fourth, fifth, sixth and seventh defendants were born. There is one piece of evidence to the contrary and that is a declaration made by Sylvia Brittania Roberts. She lives in Cootamundra and she recalled that in February 1944 she went to stay for about three weeks at Parramatta Road, Stanmore with Mrs Chisnall and Jack Solah. She said,

“I recall when I met Mrs Chisnall that she told me she had four children and I recall her introducing them to me. I remember that the youngest was a boy named Donald who was then about nine years of age. To my certain recollection all of those children were introduced to me as Chisnalls.”

30    The form of this evidence is not very satisfactory as it does not elaborate on how the children were introduced as Chisnalls. In addition it is inaccurate in that Mrs Chisnall did in fact have five children, not four.

31    Further evidence of this event was given by Donald Douglas Solah whose other evidence I will deal with in relation to the next question. He was born in 1929 and he recalls that in February 1944 he was on holiday staying with Jack Solah and his wife Maury at their home in Sydney The children there were Margaret (known as “Peggy”), Norma, John, Joan and Donald. At that stage Donald was 14 years of age. He recalls Mrs Roberts coming to stay and was introduced to her. Jack Solah introduced all the children except Joan who was not there at the time, to Mrs Roberts, and according to Donald, he said, “These are my children. Of course, Peggy is not mine, but I’ve raised her as my own”. Given this more specific evidence, I would prefer it to that of Mrs Roberts.

32    The only other evidence to which I should refer on this aspect is the death certificate of John Solah. That showed his issue in order of birth as Norma 31, John 30, Joan 28 and Donald 29, none deceased.

33    Having regard to the evidence to which I have referred I am satisfied on the balance of probabilities that John Michael Solah cohabited with Mavoura Chisnall from 1929 until they married on 19 June 1940 and thereafter they continued to cohabit until they separated some time after 1944. I am also satisfied on the balance of probabilities, notwithstanding the presumptions in s 9 and s 11, that the father of the fourth, fifth, sixth and seventh defendants was John Michael Solah a brother of the full blood of the deceased.

3. Was the deceased’s late brother, Norman Solah, of the
full or half blood to the deceased?

34    On 2 September 1901 Sophia Brookfield registered the birth of her son Norman which birth occurred on 8 July 1901 at Cootamundra. The birth certificate showed that her son, Norman, was illegitimate and present at registration. The mother was shown initially as Sophia Brookfield (Married woman not living with husband) aged 34 years having been born in Melbourne, Victoria. On 24 December 1901 there was an amendment to the entry in column 7 giving information on the informant. It was amended “For Sophia Brookfield should read Sophia formerly Drummond now Brookfield”. No father is shown but that is not surprising given the absence from the legislation of provisions inserted in 1934 which allowed the father of an illegitimate child to be shown with his consent.

35    It is necessary to determine whether or not Sophia was married to Mr Brookfield and thus whether the presumption in s 9 of the Act applies. According to the birth certificates of two of the children of Sophia, Alexander Charles Brookfield and Joseph Brookfield, Sophia Drummond married a Henry Brookfield at Fitzroy, Victoria on 25 August 1887. However, a search of the marriage records in Victoria can find no trace of that marriage. On 19 April 1903 the marriage certificate of Norman Kallil Solah and Sophia Drummond describes Sophia as being a spinster aged 36 years. Sophia’s death certificate records that she had two marriages and issue from each. The first marriage is said to have taken place at Cootamundra. Its length is not known and was to Charles Brookfield. The second is also shown as being at Cootamundra for 31 years and was to Kallil Solah. For the children of the marriage in respect of the first marriage there are shown six children who are what are acknowledged to be children of the half blood of the deceased. In respect of the second marriage the children are shown as George, 36, Frank 35, John 33 and one male deceased.

36    On this evidence which I have just recounted there are indications that Sophia may not have gone through a ceremony of marriage in that she described herself as a spinster. There is also evidence, to which I will shortly refer, that could support a presumption of marriage by cohabitation and reputation. Such a presumption is a presumption of law which is only rebuttable by clear and cogent evidence. See Jacombe v Jacombe (1960) 105 CLR 355 at 360. The absence of a marriage certificate is not fatal to such a conclusion. See Re Lynn (1960) W.A.R. 17. The presumption in s 9 can arise from a marriage which is established by the operation of the common law presumption of marriage. Accordingly, it is necessary to look at the evidence to see whether it supports a presumption of marriage and also whether the evidence would also support any cohabitation between Sophia and Kahill for the period of 44 to 20 weeks before the birth of Norman.

37    It is evident from a perusal of birth certificates of Sophia Brookfield’s children that there were six children registered as Brookfield, namely, in descending order of age, Alice, Janet, Henry, Clarice, Alexander and Joseph. Alexander is shown as having been born at Parker Street, Cootamundra on 29 June 1896 and Joseph was born 29 August 1898 at Cootamundra. Evidence has been given before me by Joan Lucas, a daughter of Clarice and also by Donald Douglas Solah, a son of Norman, the son in question. This evidence principally relates to statements made by Clarice about the circumstances concerning the birth of Norman. That evidence has to be viewed with some care because at the date of birth of Norman, Clarice was at the most seven years of age and perhaps eight years of age when she first saw him. Joan Lucas gave evidence that during her childhood her mother, Clarice, said:-

“When I was about eight years old Mum put my sisters Alice, Janet and I into the convent to be looked after whilst she travelled around with old Sol helping him with his occupation as a hawker. After they came back Alice and I went to live with them at Picton and Norman was born about this time.”

38    She recounted statements made by her mother that Sophie had four boys to Norman Solah and had six children to Henry Brookfield. She also recalls her mother referring to Norman as her half brother. Apparently she referred to Norman, George, Frank and Jack as half brothers. Apparently Alice was close to Norman in that when Uncle Norman was ill in 1939 she nursed him before he died and there were many visits between the families.

39    Donald Douglas Solah, the son of Norman, gave evidence of discussions that he had with Aunty Clarice. In paragraph 6 he sets out the following conversations or statements made by Aunty Clarice.

“When my mother (Sophie Drummond) was pregnant with Joseph (born 29 August 1898) my father (Henry Brookfield) went to South Africa to win his fortune in gold.
My mother went to Cootamundra to work with Mrs Michaels who ran a boarding house and she did the housework.
Brookfield was a builder who went to Cootamundra and Sophie Drummond followed him there and then he took off to South Africa.
She went to work with Mrs Michaels doing housework.
Mum put the three Brookfield girls (Alice, Janet and Clarice) into a home.
Old man Solah (Norman Kallil Solah) was a hawker on the road.
Mum met old man Solah at Mrs Michaels where he used to come.
Mum and old man Solah went on the road taking Alex and Jospeh with them. They put the three girls in a Catholic Convent at Cootamundra.
When they returned they had baby Norman with them. Baby Norman was a small baby at the time when they got back to Cootamundra.
I never forgave my mother for going off with that foreign man (Norman Kallil Solah).”

40    In paragraph 4 he recounts the following:-

“My Aunty Clarice used to tell me that when she was a child she recalled that a gentlemen would visit her mother (Sophie) and that the children would have to be respectful to this man and they called him “Mr Brookfield”. Aunt Clarice told me that “My mother would say to us children: “Say hello to Mr Brookfield.”
“Say goodbye to Mr Brookfield.”
Aunty Clarice said to me that:
“We didn’t know that he was our father.”
Aunty Clarice told me that:
“This gentleman by the name of Mr Brookfield came and visited and there were styles over the fence and he would lift us up and my mother would say “Say thanks to Mr Brookfield”.
Aunty Clarice related one particular incident to me where she said:
“I remember one time this man said “Brookfield today, Smith tomorrow and Jones the next day”. That was the last time we ever saw him.”

41    In general measure the recounting of statements of Aunty Clarice by Donald are consistent with some of the statements recounted by Joan Lucas and if they are accepted then, clearly, Norman would appear to be the son of Kallil and Sophie.

42    Sophia died on 7 December 1939 shortly after Norman had died. The obituary in the Mittagong Star of 15 December 1939 recorded the following:-

“She was a native of Melbourne, Victoria, and lived at Barmedman before coming to reside in Mittagong 27 years ago and was widely known for her kindly disposition, although, she did not take an active part in district organisation.
The late Mrs Solah’s first marriage with Brookfield resulted in a family of three daughters and three sons, all of whom are living. The daughters are Alice (Mrs J Lodge), Clarice (Mrs F Lodge), and Jean (Mrs J Roberts) and three sons are Harry, Alexander and Joseph.
Messrs George, Frank, Jack and Norman (deceased) were of the second union.
The sympathy of the whole district is extended to the husband, Mr K Solah, who is totally blind and unable to get about without assistance.”

43    This clearly corroborates the claim that Norman was the son of Kallil.

44    There were tendered a number of photographs including those of Norman and his father Kallil. Leaving aside the fact that there was a dispute as to who were correctly depicted in the photographs I found them of little assistance in deciding any likenesses.

45    Exhibit 5 was a prayer book. It has two inscriptions in the front the top of which is, “To Sophie from Norman 29.4.1901. Then follow the words, “ Mrs N Kallil Solah Cootamundra”. Unfortunately, given the state of the date, the inscription is not helpful. Evidently there has been rubbings out and the date has been over-written. Accordingly, there is nothing that I would conclude from that exhibit.

46    More important on the documentary side is the evidence in the Collector’s Book for the 1901 Census at Cootamundra. The relevant date was Sunday March 31, 1901 and the certificate of the collector was made on 10 April 1901. The relevant entry showed a Mrs Brookfield of Murray Street, Cootamundra and the total number of persons in the household being shown at that stage as three males and four females. Norman was not born at this stage and, accordingly, those numbers are perfectly consistent with Sophia residing in Cootamundra with her three daughters and her three sons. This strongly supports the absence of Mr Brookfield from the household. It also indicates that Kallil was not part of the household on census night but that may be explained by his occupation which clearly took him away from home.
47    The other documentary evidence of note concerns a time in May 1910 by which time the family had moved to Barmedman. There is an entry in the Register of Admissions for the Barmedman Public School on 16 May 1910 showing the entry of Norman Brookfield being a Roman Catholic and Joseph Brookfield being a Roman Catholic. The parent, or guardian, in each case is shown as Norman Solah of Barmedman, labourer. There is no evidence of what Norman was called at school but clearly he was registered as a Brookfield. How this came about does not appear. There does not seem to be any doubt that during his lifetime Norman was known as Norman Solah. His marriage certificate shows in 1923 that he describes himself as Norman Solah, an orchardist of Mittagong. His death certificate which shows his death as 1 September 1939 showed him as Norman Solah, labourer, that his father was Kallil Solah and his mother, Sophia Drummond. The informant in this case was his brother, George.

48    One document which causes difficulty is the death certificate of Norman Kallil Solah. He died on 22 March 1944 being then a resident of the Little Sisters of the Poor Home, Randwick. His children were shown as George 49, Frank 45, James 46 living with none deceased. This is inconsistent with the death of Norman in 1939. However, the informant is one of the sisters of the Little Sisters the Poor and an explanation for the misinformation may be as deposed to by Mr Donald Douglas Solah. That was, that at the date of his death, Norman Kallil Solah was blind and was being looked after by a worker who worked in his market garden. That person may have given information for the death certificate. Although this is supposition there are some other errors in the death certificate. These are that Frank’s age was incorrect since he was not aged 48 but 40 and reference to the marriage in New South Wales to Sylvia Brumer, which is clearly also incorrect.

49    There was one other piece of evidence given by Donald Douglas Solah which concerned the situation after his father died in 1939. The family was destitute and his mother and the children went to live with Kallil at Mittagong. He recalls Kallil who was blind calling him over and asking him to stand next to him. Kallil felt him all over with his hands from the top of his head down to his feet and felt his facial features. He then said, “You are going to be tall like me and your father, not short like these others”. He did the same apparently to George. In this statement was a recognition of the blood line.

50    If one stands back and looks at the evidence it is apparent that the records of the Census would support the fact that Mr Brookfield was no longer living with Sophia prior to the birth of Norman. The evidence given of the statements by Aunty Clarice clearly explains the absence of Mr Brookfield from a time prior to the birth of Joseph, ie, before 1898. The question is whether that evidence is sufficiently reliable. There are reasons that would incline me to accept that the recollection could be correct given that Aunty Clarice was only eight at the time. The reasons for this are that the separation which placed her and her two sisters in a convent for some years are events which might be likely to stay in her memory. Similarly the cessation of that residence and living with the family which included the new child, are also such that they might remain in her recollection. It is not as though Clarice had little contact with that child thereafter as it is apparent on the evidence that she was close to him and, indeed, for some years, was involved in raising him to manhood.

51    The major documentary evidence to the contrary are the records of the Barmedman public school and the death certificate of Kallil. The latter has a number of inaccuracies and I would not place great store on the information about the family in that certificate. The school records may well be explained by the fact that the birth of Norman was prior to the marriage of Sophie to Kallil.

52    In the circumstances I am satisfied on the balance of probabilities that any cohabitation between Sophia and Mr Brookfield ceased on or before 29 August 1898. However, the evidence of the six children being born to Sophia and Mr Brookfield together with the history of living in Victoria, followed by a move to Cootamundra, is probably sufficient to establish the marriage between Sophia and Mr Brookfield. Accordingly, the presumption in s 9 arises.

53    Counsel for the first defendant did not rely on the presumption in s 10 of the Act no doubt due to the difficulty in establishing cohabitation in the relevant weeks before the birth of Norman. However, given the explained absence of Mr Brookfield and, accepting as I do the statements attributed to Aunty Clarice, the true situation is clear.

54    I am satisfied on the balance of probabilities, notwithstanding the presumption that arises under s 9, that the father of Norman Solah born on 8 July 1901 at Cootamundra was Norman Kallil Solah. It is not without significance that he was named Norman as his father’s first born son. Accordingly, I find that Norman Solah was a brother of the full blood of the deceased. His issue who are entitled to take his share of the estate of the deceased under the statutory trust for sale are:-

Roma Daphne Begsma
Norman Kevin Solah
Donald Douglas Solah
George Stanley Solah
Kathleen Annette Jacobsen
Raymond Peter Solah

55    The parties have indicated that they would like the opportunity to formulate orders once I have made the appropriate findings of fact.

56    Accordingly, I direct the parties to bring in short minutes.

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