State Trustees Limited v Valentin Jeklar & Ors: IMO the estate of Franc Jeklar, deceased
[2019] VSC 267
•3 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2018 01560
IN THE MATTER of an application by STATE TRUSTEES LIMITED (as the administrator of the estate of FRANC JEKLAR, deceased) pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)
| STATE TRUSTEES LIMITED (ACN 064 593 148) | Plaintiff |
| v | |
| VALENTIN JEKLAR, MARIJA SMUKAVEC, IVANA LANGUS and JULIJANA JEKLAR | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 April 2019 |
DATE OF JUDGMENT: | 3 May 2019 |
CASE MAY BE CITED AS: | State Trustees Limited v Valentin Jeklar & Ors: IMO the estate of Franc Jeklar, deceased |
MEDIUM NEUTRAL CITATION: | [2019] VSC 267 |
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ADMINISTRATION AND PROBATE – Application by administrator pursuant to Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Intestacy – Application for declaration of paternity – Anderson v Teboneras [1990] VR 527 – Re XY; Ex parte Trustees Limited [2001] VSC 89 – Farnell v Penhalluriack (No 2) [2008] VSC 214 – Helebrant v Perdic [2010] VSC 580 – Re AC, MM and Anor [2017] VSC 576, referred to – Status of Children Act 1974 (Vic) ss 7, 10.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Mah | State Trustees Limited |
| For the Defendant | Mr J Tsalanidis | Culshaw Miller Lawyers (by their town agent Hunt & Hunt) |
HER HONOUR:
Introduction
The deceased, Franc Jeklar, died on 25 March 2012 without a will. He was aged 90, having been born on 13 November 1921 in Slovenia. He never married, and had no children. Letters of Administration were granted to State Trustees Limited (‘STL’) on 10 October 2012.[1] The deceased left a substantial estate, valued at approximately $2 million.[2]
[1]Exhibit KME-1 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018.
[2]Asset and Liability Statement dated 12 April 2018: Exhibit KME-3 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018.
The deceased’s birth certificate, dated 30 October 2012, identified his mother as Ivana Jeklar.[3] She was born on 15 December 1889, and died on 27 December 1922,[4] when the deceased was thirteen months old. The deceased’s birth certificate did not identify his father.
[3]Deceased’s birth certificate dated 30 October 2012: Exhibit KME-7 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018.
[4]Death certificate of Ivana Jeklar (the deceased’s mother): Exhibit KME-8 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018.
The defendants, Valentin Jeklar, Marija Smukavec, Ivana Langus, and Julijana Jeklar are siblings. They all live in Slovenia, the deceased’s country of birth. They are of advanced years, and are not fluent in the English language. The defendants claim to be the deceased’s half-siblings. They allege that their father, Valentin Jeklar (‘Valentin Jeklar Senior’), was also the father of the deceased. He was born on 3 January 1884, and died on 17 December 1965. Their mother, also named Ivana Jeklar (née Zupan), married Valentin Jeklar Senior in 1925. She died on 6 March 1959.
STL, as the legal personal representative of the deceased’s estate, seeks directions from the Court as to how the estate should be distributed.
If the Court accepts that the defendants are the deceased’s half-siblings, then they would take the estate in equal shares, in accordance with s 52 of the Administration and Probate Act 1958 (Vic) (‘APA’). If the defendants’ claim is not accepted, then the deceased’s estate would be distributed to relatives on the deceased’s maternal side. STL has identified two maternal cousins once removed, but has been unable to confirm the date of death of a maternal cousin (Neža Jeklar, born on 8 January 1891).[5] In the event that the defendants are unable to establish that they are the half siblings of the deceased, then STL seeks an order that it may distribute the estate to the deceased’s cousins on the maternal side on the basis that Neža Jeklar died without any children (‘Benjamin order’).[6]
[5]Exhibit KME-10 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018 (Family Sheet dated 12 March 2015 for Gregor and Marjeta Jeklar); Exhibit KME-11 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018 (death certificate of Helena Jeklar); Exhibit KME-15 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018 (includes the Family Sheet for the deceased’s maternal cousin, Francisca Stare; two of her surviving children are the ‘cousins once-removed’).
[6]See Re Benjamin [1902] 1 Ch 723.
As noted above, the deceased did not leave a wife or partner, nor did he have any children. His mother predeceased him and, given that the deceased was 90 when he died, it is reasonable to infer that his father, if it were anyone other than Valentin Jeklar Senior, also predeceased him. In light of this, s 52(1)(f)(v) of the APA provides that his siblings are the next relevant category for the purposes of the distribution of the estate. If any of the deceased’s siblings predeceased him, then that sibling’s children would take their parent’s share of the estate pursuant to s 52(1)(f)(ii) of the APA.
Relevantly for the purpose of this proceeding, s 52(1)(f)(vii) of the APA makes no distinction between ‘whole blood’ and ‘half-blood’ relationships. Accordingly, the defendants seek distribution from the deceased’s estate on the basis that their father, Valentin Jeklar Senior, was also the deceased’s father.
The issue in this proceeding is whether the defendants are in fact the deceased’s half-siblings, as they claim, and, subject to the requirements of s 7 of the Act, thus have the right to inherit the deceased’s estate. A key impediment to the defendants’ claim is the absence of any information on the deceased’s birth certificate dated 30 October 2012 regarding the identity of his father.[7] In order to make a determination regarding the deceased’s paternity, it is necessary to consider the relevant provisions of the Status of Children Act 1974 (Vic) (‘Act’).
[7]Exhibit KME-7 to Affidavit of Kathryn Ensor sworn 26 April 2018.
The application
In its amended originating motion filed on 30 July 2018, STL seeks answers to the following questions:
(a) Did the relationship of father and child exist between the deceased and Valentin Jeklar (born on 30 January 1884 and died on 17 December 1965) (Question 1)?
(b) If the answer to the question above is ‘yes’, have the requirements of s 7(1)(b) of the Status of Children Act 1974 (Vic) (‘Act’) been satisfied (Question 2)?
In its further amended originating motion filed on 17 April 2019, pursuant to the Court’s order made on 5 April 2019, STL seeks an answer, at the request of the defendants, to the following additional question (Question 2A):
(a) Should declarations be made pursuant to s 10 of the Status of Children Act 1974 that:
(i) a relationship of father and child existed between Valentin Jeklar and Franc Jeklar?
(ii) for the purposes of s 7(1)(b) of the Act, paternity of Franc Jeklar had been admitted by his father, Valentin Jeklar, in his lifetime?
Further (Question 3):
If:
(b) the answer to question 1 is ‘no’, or
(c) the answer to questions 2 and 2A is ‘no’,
is the plaintiff authorised to distribute the net estate of the deceased on the footing that Neža Jeklar (born in about 1891) pre-deceased the deceased without having left issue?
Background Facts
Following its appointment as the administrator of the deceased’s estate, STL employed Ms Kathryn Ensor, a genealogical researcher, to locate any relatives who might benefit from the estate. In her affidavit sworn on 26 April 2018, Ms Ensor deposed, among other things, to search results carried out by Mr Peter Hawlina, a genealogical researcher based in Slovenia.
The following uncontroversial facts are derived from Ms Ensor’s affidavit, along with the affidavits relied upon by the defendants. Many of the significant matters are deposed to by Mr Zdravko Stare, a solicitor who lives in Slovenia, who grew up in the village of Koprivnik, where the deceased spent the first few decades of his life before emigrating to Australia in 1951.
The deceased’s mother died in December 1922, following which the deceased lived with Valentin Jeklar Senior. Valentin Jeklar Senior married Ivana Jeklar (née Zupan), on 23 February 1925. The deceased was then three years old. There were nine children born of the marriage of Valentin Jeklar Senior and Ivana Jeklar, namely:
(a) Alojzij Jeklar born on 8 June 1925 and died on 12 November 1983;
(b) Vincenc Jeklar, born on 25 January 1927 and died on 19 April 1927;
(c) Marija Smukavec (née Jeklar) born on 25 March 1928, now aged 91;
(d) Ana Sodja (née Jeklar), born on 24 July 1929 and died on 30 March 1994;
(e) Valentin Jeklar, born on 9 February 1931 and died on 25 December 1931;
(f) Ivana Langus (née Jeklar), born on 25 June 1932, now aged 86;
(g) Julijana Jeklar, born on 18 August 1934, now aged 84;
(h) Franciška Jeklar, born on 10 June 1937 and died on 8 June 2012; and
(i) Valentin Jeklar, born on 24 April 1940, now aged 79 (‘Valentin Jeklar Junior’).
For many years, the defendants believed that their mother was the deceased’s biological mother, as their father did not refer to the deceased’s mother when they were young children.[8] A few years before he died, Valentin Jeklar Senior told the defendants that the deceased’s mother was very ill and died when the deceased was about fourteen months old.[9]
[8]Affidavit of Ivana Langus sworn 3 September 2018, [25]; Affidavit of Marija Smukavec sworn 3 September 2018, [23]; Affidavit of Valentin Jeklar sworn 3 September 2018, [29].
[9]Affidavit of Valentin Jeklar sworn 3 September 2018, [30]; Affidavit of Julijana Jeklar sworn 3 September 2018, [22].
The deceased lived with Valentin Jeklar Senior, and subsequently with his step-mother, Ivana Jeklar, and their children in the family home at Koprivnik 55, 4264 Bohinjska Bistrica, Slovenia, until around 1951. The deceased attended Bohinjska Bistrica Elementary School from 1928 to 1935.[10]
[10]Affidavit of Zdravko Stare sworn 19 September 2018, [53] and Exhibit ZS-7.
The defendants’ Slovenian lawyer, Mr Stare, deposed that his mother, Jerca Stare (born 13 March 1926), knew the deceased, and attended the same elementary school with him from 1934 to 1935.[11]
[11]Ibid [31].
Counsel for the defendants submitted that ‘[i]t was commonly known throughout the village of Koprivnik that Valentin Jeklar was the deceased’s father. It was spoken about. Members of the village and the older generations in the village still speak about it’.[12]
[12]Transcript of Proceedings, Re Jeklar; State Trustees Limited v Valentin Jeklar & Ors (Supreme Court of Victoria, Daly AsJ, 5 April 2019) (‘Transcript’) 32, quoting affidavit of Zdravko Stare sworn 19 September 2018 [38].
Prior to moving to Australia, the deceased worked with Valentin Jeklar Senior on the family farm and, at times, worked for a forestry company, as well as an iron factory in Jesenice, Slovenia.[13] The deceased served in three separate armies (the Army of the Kingdom of Yugoslavia, the German Wehrmacht Army, and the new Yugoslavia Army).[14]
[13]Affidavit of Ivana Langus sworn 3 September 2018, [18]; Affidavit of Marija Smukavec sworn 3 September 2018, [18]; Affidavit of Julijana Jeklar sworn 3 September 2018, [16]; Affidavit of Valentin Jeklar sworn 3 September 2018, [17].
[14]Affidavit of Zdravko Stare sworn 19 September 2018, [59].
After the deceased emigrated to Australia, he regularly exchanged letters with his family in Slovenia, including Ivana Langus, Marjia Smukavec, and Valentin Jeklar.[15] On several occasions, the deceased sent money to his family in Slovenia.[16]
[15]Affidavit of Ivana Langus sworn 3 September 2018, [22]; Affidavit of Marija Smukavec sworn 3 September 2018, [22]; Affidavit of Julijana Jeklar sworn 3 September 2018, [19]; Affidavit of Valentin Jeklar sworn 3 September 2018, [20].
[16]Affidavit of Valentin Jeklar sworn 3 September 2018, [21]–[25].
Zdenka Jeklar, the granddaughter of Ivana Langus, visited the deceased at the Green Hill Civic Residential Care Home in Victoria (‘Green Hill’), on a number of occasions during a visit to Australia in 2009, with the initial meeting occurring on or around 9 January 2009.[17]
[17]Affidavit of Zdenka Jeklar sworn 30 August 2018, [1], [5], [6], [7], [9], [13].
The defendants also provided evidence of Julijana Jeklar’s attempts to contact the deceased when she had not heard from him for some time, which led her in 2011 to contact Fr Ciril Bozic (head of the Slovenian Catholic Mission in Victoria) and request that he visit the deceased on her behalf.[18]
[18]Affidavit of Julijana Jeklar sworn 3 September 2018, [21]; Affidavit of Ciril Alojz Bozic sworn 16 September 2018, [9].
Fr Bozic deposed that, in or around November or December 2011, he visited the deceased at Green Hill, and spoke with him for approximately an hour.[19] He passed on the family’s best wishes, in response to which the deceased asked Mr Bozic to thank Julijana for her concern.[20] According to Mr Bozic, he also passed on information about the family that had been provided to him by Julijana, and the deceased informed him that he had received a visit from relatives from Slovenia. [21] The deceased then asked Mr Bozic to forward his greetings to Julijana, which Mr Bozic did the following day by telephone.[22]
[19]Affidavit of Ciril Alojz Bozic sworn 16 September 2018, [11], [13].
[20]Ibid [13]–[14].
[21]Ibid [16]–[17].
[22]Ibid [18].
The defendants also referred to a conversation between Valentin Jeklar Junior and Valentin Jeklar Senior regarding the succession to the Jeklar family farm, when Valentin Jeklar Senior expressed his wish that his eldest son, that is, the deceased, would take over the farm upon his death.[23]
[23]Affidavit of Valentin Jeklar sworn 3 September 2018, [30].
STL accepts that Valentin Jeklar Senior raised and treated the deceased as if he were his son.
Communications between STL and the Jeklar family
On 29 May 2012, STL e-mailed Zdenka Jeklar, attaching an authority that would enable the defendants to apply for letters of administration in relation to the deceased’s estate, stating that the authority would need to be signed by ‘Frank Jeklar’s brother, Valentin Jeklar’.[24] Prior to the death of the deceased, Ms Jeklar had been in contact with staff at Green Hill to attempt to make arrangements for the deceased to obtain a passport, so he could return to Slovenia to spend his remaining years, which is presumably how STL had her contact details.
[24]Exhibit ZJ-10 to Affidavit of Zdenka Jeklar sworn 30 August 2018.
Following further correspondence between STL, Ms Jeklar, and Valentin Jeklar Junior, and having reviewed the results of Ms Ensor’s searches, Ms Berger, the solicitor for STL, told Valentin Jeklar Junior that as Valentin Jeklar Senior did not formally adopt the deceased, Valentin Jeklar Senior’s other children were not entitled to the deceased’s estate, and suggested that he obtain legal advice.[25] Further correspondence ensued and, on 1 July 2015, Ms Berger advised Zdenka Jeklar to provide evidence that Valentin Jeklar Senior was the deceased’s biological father, or to obtain independent legal advice.[26] No response was received from any member of the Jeklar family until 5 March 2018, when Ms Berger received a letter from Culshaw Miller (‘CML’), the defendants’ Australian lawyers, advising her that they had been instructed by the defendants, who were in the process of obtaining documentation to support their claim.[27]
[25]Exhibit JB-2 to Affidavit of Jasmine Berger sworn on 27 April 2018
[26]Exhibits JB-3 and JB-4 to Affidavit of Jasmine Berger sworn on 27 April 2018.
[27]Exhibit JB-5 to Affidavit of Jasmine Berger sworn on 27 April 2018.
In early 2018, after Ms Ensor advised Ms Berger that she had been unable to confirm the death of one of the deceased’s maternal aunts, STL commenced preparing an application for a Benjamin order.
After receiving the letter from CML referred to above, on 5 March 2018, Ms Berger wrote to the defendants’ solicitors to advise that the estate had not been distributed, and requested again that evidence be provided establishing the relationship between the defendants and the deceased.[28]
[28]Exhibit JB-6 to Affidavit of Jasmine Berger sworn on 27 April 2018.
In response, the defendants’ solicitors wrote to STL on 14 March 2018, enclosing extracts from registers of births and deaths relating to the defendants, as well as a copy of a page from the ‘Urbar’ (the Status Animarum).[29]
[29]Exhibit JB-7 to Affidavit of Jasmine Berger sworn on 27 April 2018.
On 16 March 2018, Ms Berger responded by stating that the documents were not sufficient to establish the relevant relationship, and that STL would be applying to the Court for directions.[30]
[30]Exhibit JB-8 to Affidavit of Jasmine Berger sworn on 27 April 2018.
On 5 April 2018, the defendants’ solicitors wrote to STL and provided further documentation, including a declaration regarding the provenance of the Status Animarum, photographs, school records, and foreshadowed the provision of further evidence.[31]
[31]Exhibit JB-10 to Affidavit of Jasmine Berger sworn on 27 April 2018.
In response, Ms Berger wrote to the defendants’ solicitors on 10 April 2018 to advise that the documents ‘did not conclusively establish’ the relevant relationship, and that STL would proceed with its application to the Court.[32]
[32]Exhibit JB-11 to Affidavit of Jasmine Berger sworn on 27 April 2018.
On 24 April 2018, Ms Nicholls of CML wrote to STL for the purposes of, among other things, providing STL with a copy of a letter from Fr Bozic which referred to his conversations with Julijana Jeklar and the deceased, provided a description of the status and function of the Status Animarum, and foreshadowed that the defendants would be providing further evidence in support of their claim.[33]
[33]Exhibit SJN-2 to Affidavit of Sarah Jane Nicholls sworn 6 June 2018.
This proceeding was commenced by STL on 27 April 2018.
In July 2018, further correspondence was exchanged between Ms Nicholls and STL regarding the whereabouts of the deceased’s personal belongings, for the purpose of obtaining DNA evidence, given that the deceased was cremated in Slovenia. STL informed Ms Nicholls that the deceased’s belongings had been discarded.
The evidence
In seeking the Court’s guidance for the purposes of administering the deceased’s estate, STL relied upon the following evidence:
(a) an affidavit sworn by Ms Ensor on 26 April 2018; and
(b) an affidavit sworn by Ms Berger on 27 April 2018.
Ms Ensor deposed, in summary, as follows:
(a) based upon her searches in Australia, the deceased never married, and had no children;
(b) based upon the searches conducted by STL and Mr Hawlina, she constructed a maternal family tree of the deceased;
(c) the surviving children of Valentin Jeklar Senior had not provided her with any documents in support of their claim that they were the half-siblings of the deceased; and
(d) neither she, Mr Hawlina, nor STL have been able to obtain any records concerning the deceased’s maternal aunt, Neža Jeklar. The deceased’s cousin once removed, Helena Arh, told her that Neža Jeklar died in infancy.
In her affidavit, Ms Berger deposed as to the instructions she provided to Ms Ensor, and her correspondence with members of the Jeklar family and their solicitors referred to in paragraphs 25 to 33 above
By order made on 28 June 2018, Valentin Jeklar Junior, Marija Smukavec, Ivana Langus, and Julijana Jeklar were joined as defendants to the proceeding. In support of their claim that Valentin Jeklar Senior was the biological father of the deceased, and that he acknowledged this fact during his lifetime, the defendants relied upon the following evidence:
(a) affidavits sworn by Ms Nicholls on 6 June 2018, 29 October 2018, 13 November 2018, and 2 April 2019;
(b) affidavits sworn by Mr Stare on 19 September 2018 and 8 October 2019;
(c) affidavits sworn by Valentin Jeklar Junior on 3 September 2018 and 10 January 2019;
(d) affidavits sworn by Ivana Langus on 3 September 2018 and 10 January 2019;
(e) affidavits sworn by Marija Smukavec on 3 September 2018 and 9 January 2019;
(f) affidavits sworn by Julijana Jeklar on 3 September 2018 and 9 January 2019;
(g) an affidavit sworn by Zdenka Jeklar on 30 August 2018;
(h) an affidavit sworn by Fr Bozic sworn on 16 September 2018; and
(i) affidavits sworn by the following interpreters, who translated various Slovenian documents, as follows:
(iii) an affidavit of Edita Mavčič sworn on 19 September 2018;
(iv) an affidavit of Cilka Demšar sworn on 20 September 2018; and
(v) an affidavit of Tomaž Poličar sworn on 26 September 2018.
The defendants also relied upon the following documents:
(a) extracts of the deceased’s birth certificate dated 2 November 2018 and 21 March 2019;[34]
[34]Exhibits SJN-9 and SJN-11 to Affidavit of Sarah Jane Nicholls sworn 2 April 2019.
(b) extracts from the Status Animarum;[35]
[35]Exhibit ZS-2 to Affidavit of Zdravko Stare sworn 19 September 2018.
(c) Family Sheets for Valentin Jeklar Senior and Ivana Jeklar (née Zupan);[36]
[36]Exhibit SJN-12 to Affidavit of Sarah Jane Nicholls sworn 2 April 2019.
(d) a declaration made by the Vicar General in the Archdiocese of Ljubljana, Msgr Dr Franc Sustar;[37]
[37]Exhibit ZS-4 to Affidavit of Zdravko Stare sworn 19 September 2018.
(e) a decree of distribution of Judge Meta Šetina, Municipal Court, Radovljica (probate case of Valentin Jeklar Senior);[38]
[38]Exhibit ZS-12 to Affidavit of Zdravko Stare sworn 19 September 2018; Exhibit SJN-3 to Affidavit of Sarah Jane Nicholls sworn 6 June 2018.
(f) the will of Valentin Jeklar Senior dated 22 November 1965;[39]
[39]Exhibit SJN-4 to Affidavit of Sarah Jane Nicholls sworn 6 June 2018; Exhibit SJN-10 to Affidavit of Sarah Jane Nicholls sworn 2 April 2019; Exhibit ZS-13 to Affidavit of Zdravko Stare sworn 19 September 2018.
(g) the deceased’s class catalogue (Razredni Katalog);[40]
[40]Exhibit ZS-7 to Affidavit of Zdravko Stare sworn 19 September 2018.
(h) the deceased’s school progress report (Izkaz);[41]
[41]Exhibit ZS-8 to Affidavit of Zdravko Stare sworn 19 September 2018; Exhibit SJN-14 to Affidavit of Sarah Jane Nicholls sworn 2 April 2017.
(i) the deceased’s Military Service Book for the New Yugoslav Army;[42]
(j) the letter from Valentin Jeklar Senior to the Liberation Front Local Board, Jesenice;[43] and
(k) letters exchanged between the deceased and his family, including a letter from the deceased to his family dated 5 August 1963,[44] a letter from the deceased to his family dated 17 November 1992,[45] a letter from the deceased to Franka Jeklar dated 16 May 2008,[46] and a letter from the deceased to his family dated 25 September 2008.[47]
[42]Exhibit ZS-9 to Affidavit of Zdravko Stare sworn 19 September 2018.
[43]Exhibit ZS-10 to Affidavit of Zdravko Stare sworn 19 September 2018.
[44]Exhibit ZS-13 to Affidavit of Zdravko Stare sworn 19 September 2018.
[45]Exhibit CD-5 to Affidavit of Cilka Demšar sworn 20 September 2018.
[46]Exhibit ZS-5 to Affidavit of Zdravko Stare sworn 19 September 2018.
[47]Exhibit ZS-6 to Affidavit of Zdravko Stare sworn 19 September 2018.
On 4 February 2019, the defendants filed further affidavits sworn by them in response to an issue raised by STL in relation to hearsay evidence provided by Mr Zdravko Stare, the defendants’ Slovenian lawyer, in his affidavit of 8 October 2018 regarding certain conversations between the defendants and Valentin Jeklar Senior.
The proceeding was originally listed for hearing on 27 March 2019, but the hearing was unavoidably delayed until 5 April 2019. The delay was fortuitous for the defendants, for on 2 April 2019, Ms Nicholls swore a further affidavit deposing as to further documents obtained by her to support the defendants’ claims. She deposed as follows:[48]
I refer to the affidavit of Kathryn Mary Ensor sworn on 26 April 2018 filed on behalf of the plaintiff. Ms Ensor has exhibited a number of documents titled Family Sheet prepared by the Archdiocese of Ljubljana (exhibits KME-10, KME-12 and part of KME-15).
On 27 March 2019 I conferred in Melbourne with Mr Stare and Mr Ciril Bozic, the Head of the Slovenian Mission of Saints Cyril and Methodius in Victoria. Mr Bozic informed me that he would endeavour to obtain a Family Sheet from the archives of the Archdiocese of Ljubljana relating to Valentin Jeklar and Ivana Jeklar (née Zupan).
On 1 April 2019 Mr Bozic provided me a Family Sheet of Valentin Jeklar and Ivana Zupan prepared by the Archdiocese of Ljubljana. Now produced and shown to me and marked SJN-12 is a copy of the Family Sheet of Valentin Jeklar and Ivana Zupan.
I am informed by Mr Bozic and believe that he asked Tone Krampač, the Vice‑Manager of the Archive who prepared the Family Sheet produced above as exhibit SJN-12, to advise of the sources and documents used to prepare the Family Sheet.
[48]Affidavit of Sarah June Nicholls sworn 2 April 2019, [15]-[17].
In addition to the Family Sheet of Valentin Jeklar Senior and Ivanka Zupan, which includes a reference under the heading ‘Children’ to the deceased, as the ‘illegitimed’ [sic] child of Ivana Jeklar:[49] The declaration of Tome Krampač exhibited to Ms Nicholls’ affidavit stated as follows:
I, the undersigned, declare that I used the date from the parish family book from Koprivnik in Bohinj, original civil registers and copies of registers and baptisms, marriages and deaths for the preparation of the family sheet. Archdiocesan Archive Ljubljana holds an original register of baptisms, where the data on the birth of father Valentin Jeklar and mother Ivana Zupan are kept. Other data were collected from copies of registers of baptisms, marriages and deaths from the parish Koprivnik in Bohinj, which are also held at Archdiocesan Archive Ljubljana.
[49]The Family Sheet also refers to an illegitimate child of Ivana Langus, Ivan Jeklar, the father of Zolenka Jeklar.
Ms Nicholls also exhibited a translation of the deceased’s school progress report, which refers to Valentin Jeklar Senior as the deceased’s father, and the deceased’s place of residence being the same as that of Valentin Jeklar Senior.
Originals of the will of Valentin Jeklar Senior, the probate file with respect to Valentin Jeklar Senior (‘probate file’), and the amended birth certificates of the deceased dated 2 November 2018 and 21 March 2019 were tendered at the trial of the proceeding.
The contentions of the parties
Prior to turning to the evidence in more detail, and the submissions of the parties regarding that evidence, I shall briefly summarise the position of the parties.
The submissions of the parties reflected the iterative manner in which the defendants’ evidence evolved and was augmented over time. In its written submissions filed on 24 September 2018, STL, after outlining the background facts, the relevant statutory provisions, and the applicable legal principles, submitted that while it accepted that Valentin Jeklar Senior believed the deceased was his son, and treated the deceased as his son, the evidence relied upon by the defendants was not sufficient to allow the Court to draw the conclusion that the deceased was in fact the biological son of Valentin Jeklar Senior. STL did not dispute that the relationships between the deceased, Valentin Jeklar Senior, and the defendants were genuine and close.
In their written submissions filed on 8 October 2018, the defendants relied upon the Status Animarum as a credible record of the deceased’s biological relationship with Valentin Jeklar Senior. The defendants referred to a number of other documents which referred to the deceased as his son, the parties’ inability to obtain DNA evidence, and the evidence the defendants proposed to adduce with respect to the relationship between Valentin Jeklar Senior and the deceased’s mother. The defendants submitted that Valentin Jeklar Senior expressly admitted paternity during his lifetime.
In the further submissions filed by STL on 3 December 2018, STL referred to the amended birth certificate of the deceased obtained by the defendants on or about 2 November 2018. While STL accepted that the amended birth certificate is prima facie evidence of paternity, it submitted that the Court can look beyond the birth certificate if the circumstances are such that the birth certificate may not be entirely reliable. In the current case, it appears that the defendants applied to amend the birth certificate for the sole or dominant purpose of reinforcing the defendants’ claim to the deceased’ estate.
STL’s submissions also criticised the defendants’ evidence to the effect that Valentin Jeklar Senior told them that he had a relationship with the deceased’s mother, and that the deceased was the child of that relationship. First, given that this evidence emanated from Mr Stare, it was second hand hearsay. Further, STL queried why this evidence could not have been adduced earlier. Finally, STL submitted that it is difficult for the Court to assess the reliability of that evidence in the absence of any evidence of the details and context of the conversation between the defendants and Valentin Jeklar Senior.
In their submissions filed on 20 December 2018, the defendants submitted that there was a reasonable explanation for the defendants’ failure to apply to amend the birth certificate prior to October 2018, and in any event, the Court could make a declaration as to paternity based upon the other circumstantial evidence relied upon by the defendants. The defendants foreshadowed filing further evidence to address the hearsay issue relied upon by STL in it submissions.
At trial, in addition to the submissions previously relied upon by the defendants, counsel for the defendants referred to the additional evidence adduced by the defendants in 2019, and submitted that this additional evidence addresses, at least in part, the concerns identified by STL with the hearsay evidence relied upon by the defendants. Further, the Family Sheet exhibited to Ms Nicholls’ affidavit of 2 April 2019 bolsters the defendants’ claim. Counsel for the defendants referred at some length to the relevant authorities and emphasised the fact that the ordinary civil standard of proof applies to the defendants’ claim, not some higher standard as appears to have been contended for by STL in its submissions.
At trial, counsel for STL confirmed that it did not dispute that Valentin Jeklar Senior acknowledged that the deceased was his son during his lifetime, but reiterated that the duty of STL was to administer the estate according to law, and, given the circumstances in which the amended birth certificates were obtained, their reliability must be approached with some caution. I agree that all that really could be said about the amended birth certificates is that they evidence the fact that the Government of Slovenia considered the evidence of the paternity of the deceased to be sufficient to warrant issuing the amended birth certificate.
As can be seen from the above, STL has acted more as a proper contradictor respect to the defendants’ claim rather than an adversary. It made investigations regarding the potential beneficiaries of the deceased’s estate, and encouraged the defendants to bring forward evidence in support of their claim. It accepts that the requirement under s 7(1)(b) of the Act that Valentin Jeklar Senior has acknowledged the deceased as his son has been satisfied. However, while STL has not advanced a positive case that the deceased was not the son of Valentin Jeklar Senior, it has drawn the Court’s attention to what it perceives to be shortcomings in the defendants’ evidence.
Applicable legal principles
The following sections of the Act govern the disposition of this proceeding:
7 Recognition of paternity
(1)The relationship of father and child and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or to the construction of any will or testamentary disposition or of any instrument creating a trust or for the purpose of a claim for a family provision order under Part IV of the Administration and Probate Act 1958, be recognised only if—
(a)the father and the mother of the child were married to each other at the time of its conception or at some subsequent time; or
(b)paternity has been admitted (expressly or by implication) by or established against the father in his lifetime and, if the father is a beneficiary of the child, paternity has been so admitted or established while the child was living.
(2)In any case where by reason of the provisions of subsection (1) the relationship of father and child is not recognized at the time the child is born the occurrence of any act, event, or conduct which enables that relationship and any other relationship traced in any degree through it to be recognized shall not affect any estate right or interest in any real or personal property to which any person has become absolutely entitled, whether beneficially or otherwise, before the act, event, or conduct occurred.
…
10 Application to Supreme Court for declaration of parentage
(1) Any person (the first person) who—
(a)claims that any named person is a parent of the first person’s child; or
(b)claims that a relationship of parent and child exists between the first person and any other named person; or
(c)has a proper interest in the result who wishes to have a determination whether the relationship of parent and child exists between two named persons—
may apply to the Supreme Court for a declaration of parentage and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of parentage whether or not the parent or the child or both of them are living or dead.
(2)Where a declaration is made under subsection (1) after the death of the parent or of the child the Court may at the same or any subsequent time make a declaration determining, for the purposes of paragraph (b) in subsection (1) of section 7, whether any of the requirements of that paragraph have been satisfied.
…
As the deceased’s mother was not married to Valentin Jeklar Senior, the presumption of parenthood under s 5 of the Act is not applicable.
Section 7(1) of the Act provides that, for the purposes of succession law, if a person's father and mother were not married when they were conceived or subsequently, then, in addition to proving the biological connection between the alleged father and the child, that person must also demonstrate that the father had expressly or impliedly admitted the paternal relationship during his lifetime.[50]
[50]See Re XY; Ex parte State Trustees Limited [2001] VSC 89, [16] (Byrne J); Re AC, MM and Anor [2017] VSC 576 [18] (McMillan J).
Accordingly, the issues to be determined in this proceeding are: first, whether a declaration of parentage should be made under s 10(1) of the Act; and secondly, whether the defendants have satisfied the additional requirement in s 7(1)(b) of the Act that paternity has been admitted by Valentin Jeklar Senior, expressly or by implication, or established against him in his lifetime, and are therefore entitled to share in the deceased’s estate. As Beach J stated in Helebrant v Perdic:[51]
The first question to be examined is the question of paternity and whether the plaintiff is entitled to a declaration of parentage. However, even if that matter is resolved in favour of the plaintiff, that only takes the plaintiff so far. In order for the plaintiff to be entitled on intestacy, the plaintiff must satisfy the additional requirement in s 7(1)(b) – namely, that paternity was admitted by the deceased in his lifetime (the other alternatives in s 7(1) of the deceased and the plaintiff’s mother being married at or subsequent to the plaintiff’s conception or paternity having been established against the deceased in his lifetime having no application in this case).[52]
[51][2010] VSC 580.
[52]Ibid [6].
In Anderson v Teboneras,[53] Ormiston J stated that:[54]
[53][1990] VR 527.
[54]Anderson v Teboneras [1990] VR 527, 543, quoted in Helebrant v Perdic [2010] VSC 580, [7] (Beach J).
The test of paternity under s 10 of the Status of Children Act is much more general than that which must be satisfied for the purposes of s 7 of that Act. Under s 10 it is sufficient that it is proved to the satisfaction of this court that ‘the relationship of father and child exists between two named persons’, to use the language of s 10(1) of the Act. On the other hand, sub-s (1) of s 7 is expressed, for present purposes, in the following terms:
The relationship of father and child … shall, for any purpose related to succession to property or the construction of any will or testamentary disposition or of any instrument creating a trust or for the purpose of a claim under Part IV of the Administration and Probate Act 1958 be recognized only if —
(a) …
(b)paternity has been admitted (expressly or by implication) by or established against the father in his lifetime … [55]
[55][1990] VR 527, 543, referred to in Helebrant v Perdic [2010] VSC 580 [7].
The effect of paragraph (b) of s 7(1) was described by Byrne J in Re XY; Ex parte Trustees Limited,[56] as follows:
Paragraph (b) in effect permits paternity to be established only by admission or otherwise in the lifetime of the supposed father. It would seem that, however conclusive might be a DNA match with a sample taken now from AB, this would not for relevant purposes permit State Trustees to distribute a share to AB as a child of the deceased, at least without evidence of an admission of paternity. Given the relative reliability of modern DNA matching compared with admissions of paternity, this may be a surprising result but it is an inescapable consequence of the words of the statute.[57]
[56][2001] VSC 89.
[57]Ibid [16], referred to in Helebrant v Perdic [2010] VSC 580 [8].
The requisite standard of proof in relation to an application for a declaration under the Act is the balance of probabilities.[58] In Re Estate of Ronald Della Vedova,[59] Habersberger J agreed with the approach taken by Bell J in Farnell v Penhalluriack (No 2) (‘Farnell‘)[60] and Beach J in Helebrant v Perdic[61] with respect to this issue.
[58]Re AC, MM and Anor [2017] VSC 576 [16].
[59][2012] VSC 341 [20].
[60][2008] VSC 214.
[61][2010] VSC 580.
In Farnell, Bell J observed that:
Serious though the issue of paternity is, an application for a declaration of paternity is a civil application, and the standard of proof applicable in such a proceeding is the ordinary civil standard, namely the balance of probabilities. As the High Court held in G v H in reference to the essentially protective and beneficial nature of the paternity provisions of the Family Law Act 1975 (Cth), it was not necessary, in applications under those provisions, to prove paternity according to the higher civil standard that applies when the question involves a grave allegation. I think the paternity provisions of the Status of Children Act are analogous in this respect. Therefore, in an application for a declaration of paternity, it is sufficient to prove the facts according to the ordinary civil standard. The applicant does not have to achieve the higher civil standard discussed in Briginshaw v Briginshaw. The decision in G v H has overtaken the authority of earlier decisions that the higher standard was applicable.[62]
[62]Farnell [4] (footnotes omitted). See also Helebrant v Perdic [2010] VSC 580 [25].
In his submissions to the Court, Counsel for the defendant submitted that if ‘the evidence is such as to amount to acknowledgement, that may give rise to at least the presumption, an inference’[63] regarding the existence of a paternal relationship between Valentin Jeklar Senior and the deceased, referring in this respect to the following passage in Farnell:
In paternity proceedings of this kind, evidence of a father’s acknowledgment of paternity is in the nature of an admission against interest and is admissible as such. Such an acknowledgment may be express or implied, by words, conduct or behaviour. In the present case, I admitted a body of evidence on this basis, along with evidence of the relationship between Mr Chipperton, Ms Farnell and Ms Sasson. Such evidence is not, like DNA evidence, direct evidence of the existence of a biological relationship. However, taken with other evidence, such as evidence of sexual contact or opportunity for sexual contact, it is evidence from which the existence of that kind of relationship might be inferred.[64]
[63]Transcript, 16.
[64]Farnell [25].
Accordingly, the following principles can be distilled from the authorities:
(a) in order for a claimant to inherit under the intestacy provisions of the APA, the claimant must not only prove the existence of a blood relationship with the deceased, but also, if that blood relationship is dependent upon the paternity of a person, that the putative father recognised the child during his lifetime;
(b) an acknowledgement of paternity is relevant to the question of whether a paternal relationship exists, but it is not of itself determinative; and
(c) while the requisite degree of satisfaction required in order to make a declaration of paternity may in practical terms vary according to the circumstances in which an application is made, the ordinary civil standard of proof applies to applications of the current kind.
Analysis of the evidence
STL accepted that DNA evidence is not the only evidence that can be adduced to prove a blood relationship between a father and a child, and that circumstantial evidence, such as evidence of the relationship of the alleged father and the mother of the child, may be sufficient to establish the biological relationship’.[65]
[65]Plaintiff’s submissions filed on 24 September 2018, [23].
STL initially submitted that:
[E]vidence that would assist establishing the blood relationship between Valentin Jeklar Senior and the deceased is less clear. Certainly the evidence discloses a belief by all parties that Valentin Jeklar Senior was the deceased's biological father, however evidence that tends to support the accuracy of that belief is lacking. There is, for example, no evidence that Valentin Jeklar Senior was in a relationship with the deceased’s mother at around the time of the deceased's birth. The only evidence as Valentin Jeklar Senior’s discussions as to Ivana Jeklar is that she was the Jeklar family’s neighbour.[66]
[66]Plaintiff’s submissions filed on 24 September 2018, [24].
This issue has since been addressed, to some extent, by the defendants’ additional affidavits filed on 4 February 2019, which provide evidence of a conversation between the defendants and their father, when he informed the defendants that the deceased had a different mother,[67] and where Valentin Jeklar Senior is said to have referred to his relationship with the deceased’s mother. That evidence is still hearsay, insofar as it is adduced to prove the fact of the relationship between Valentin Jeklar Senior and the deceased’s mother.
[67]Affidavit of Valentin Jeklar sworn 10 January 2019, [4]–[5]; Affidavit of Julijana Jeklar sworn 9 January 2019, [4]–[5]; Affidavit of Marija Smukavec sworn 9 January 2019, [4]–[5]; Affidavit of Ivana Langus sworn 10 January 2019, [4]–[5]. See also, Affidavit of Zdravko Stare sworn 8 October 2018, [2]–[3].
The defendants also relied upon the Status Animarum as evidence of the biological relationship between the deceased and Valentin Jeklar Senior. Mr Stare’s evidence is that he examined the Status Animarum for the parish of Koprivnik,[68] and noted that the deceased (referred to as Frančišek Jeklar) is listed as ‘illegitimate son of head of house and Ivana Jeklar K52’, with the ‘head of house’ listed as Valentin Jeklar.[69] In addition, he stated that Frančišek Jeklar’s birth date is shown as 13 November 1921, and that the document shows Frančišek Jeklar as ‘resid[ing] in Australia’.[70]
[68]Exhibit ZS-2 to Affidavit of Zdravko Stare sworn 19 September 2018.
[69]Affidavit of Zdravko Stare sworn 19 September 2018, [27].
[70]Ibid.
Further, the defendants rely upon a declaration from the Vicar General in the Archdiocese of Ljubljana (Monsignor Dr Franc Sustar) which states: ‘[P]ursuant to the prescripts of the Code of Canon Law … each parish has a status animarum (parish family book), which constitutes an authentic source and summarizes data from the civil records and parochial registers’.[71]
[71]Exhibit ZS-4 to the Affidavit of Zdravko Stare sworn 19 September 2018; see also Affidavit of Zdravko Stare sworn 19 September 2018, [28]–[29].
STL acknowledged that ‘[t]he best objective evidence of the Deceased’s biological relationship with Valentin Jeklar Senior is the Status Animarum, which included the Deceased and described him as “illegitimate son of head of house and Ivana Jeklar K52”’.[72] However, STL questioned Mr Stare’s assertion that the father’s name on the Status Animarum is considered to be an acknowledgment of paternity under Slovenian law, stating that ‘[t]he precise legislation in support of that contention has not been identified’.[73]
[72]Plaintiff’s submissions dated 24 September 2018, [25].
[73]Ibid.
Mr Stare deposed that the Status Animarum is regarded as an acknowledgement of paternity under Slovenian law.[74] However, in Ms Nicholls’ affidavit sworn 29 October 2018, she deposed to instructions received from Mr Stare that:
[A] judicial determination in relation to the question of paternity is not required in Slovenia if Valentin Jeklar Senior recognised the deceased as his own child in his will. In that event, an administrative application can be made pursuant to Article 88 of the Marriage and Family Relations Act (2004). I am further informed by Mr Stare that Articles 87 and 88 provide that the father of a child not born in a marriage shall be deemed to be the father if he recognised the child as his own in a public document or in a will.[75]
[74]Affidavit of Zdravko Stare sworn 19 September 2018, [30].
[75]Affidavit of Sarah Jane Nicholls sworn 29 October 2018, [4].
Ms Nicholls exhibited the relevant provisions to her affidavit.[76] Articles 87 and 88 provide as follows:
The father of a child not born within marriage shall be deemed to be the one who recognises the child as his or whose parenthood is established by court decision. (Article 87)
A father may recognise a child as his own at a social work centre or before a registrar or in a public document or a will. (Article 88)
[76]Exhibits SJN-5 and SJN-6 to Affidavit of Sarah Jane Nicholls sworn 29 October 2018.
Valentin Jeklar Senior recognised the deceased as his son in his will. The defendants also rely upon the Status Animarum as a public document in which Valentin Jeklar Senior recognised the deceased as his son.
Fr Bozic described the Status Animarum as follows:
This is a Church’s official document in every Catholic Parish containing the records of all parishioners: the names, addresses, dates of birth, marriage and death, when a person received the sacraments (Baptism, First Holy Communion, Confirmation, Marriage). Only a Parish Priest was entitled to update the Status Animarum.[77]
[77]Exhibit SJN-2 to Affidavit of Sarah Jane Nicholls sworn 6 June 2018. See also, Affidavit of Ciril Alojz Bozic sworn 16 September 2018, [20].
It can be inferred that the reference to the deceased in the Status Animarum as the son of Valentin Jeklar Senior came about by reason of the instructions given by Valentin Jeklar Senior to the parish priest.
Other documentary evidence that the defendants rely upon to support their claim that Valentin Jeklar Senior was the biological father of the deceased include:
(a) a decree of distribution of Judge Meta Šetina, Municipal Court, Radovljica in the probate case of Valentin Jeklar Senior (which appears to be the equivalent of a judgment), which contains a statement that ‘the decedent’s intestate and at the same time forced heirs are his descendants: Valentin Jeklar, resident at Koprivnik 55, Ivana Langus … and Franc Jeklar, resident at 1 Harding St, Thomastown, Vic, Australia acknowledged the decedent’s will as valid’.[78] The probate file also contains other references to the deceased, including: ‘The appearing heirs explained that the decedent’s son Franc Jeklar, who illegally fled the country in 1951 … went abroad in search of a better life’; and ‘the heirs declared that decedent’s son Franc, who lives in Australia, declared in the letter enclosed with the certificate of death that his portion should remain with the house’;[79]
[78]Exhibit ZS-12 to the Affidavit of Zdravko Stare sworn 19 September 2018.
[79]Exhibit ZS-13 to Affidavit of Zdravko Stare sworn 19 September 2018.
(b) the will of Valentin Jeklar Senior dated 22 November 1965, which refers to ‘Franc Jeklar, an illegitimate child who has lived in Australia for 14 years’, and ‘Son Franc, who now lives in Australia, sent a message that his hereditary portion shall remain with the house’.[80] The documents on the probate file include a declaration made on 10 January 1967 by the deceased, which states: ‘I Franc Jeklar agree with will of my deceased father Jeklar Valentin’.[81] Similarly, the deceased executed a power of attorney, in respect of Valentin Jeklar Senior’s will, which states: ‘I renounce both intestate and testamentary succession after my deceased father, Valentin Jeklar, for the benefit of my brother Valentin Jeklar in whole’;[82]
[80]Exhibit ZS-13 to the Affidavit of Zdravko Stare sworn 19 September 2018, [71].
[81]Exhibit ZS-13 to Affidavit of Zdravko Stare sworn 19 September 2018.
[82]Affidavit of Zdravko Stare sworn 19 September 2018, [77]; Exhibit ZS-13 to Affidavit of Zdravko Stare sworn 19 September 2018.
(c) references to Valentin Jeklar Senior as the deceased’s father on the following documents:
(vi) the deceased’s class catalogue (Razredni Katalog), where Valentin Jeklar Senior is listed as the responsible guardian and father of the deceased;[83]
[83]Defendants’ submissions filed on 9 October 2018, [45(c)(i)]; Exhibit ZS-7 to the Affidavit of Zdravko Stare sworn 19 September 2018; see also Affidavit of Zdravko Stare sworn 19 September 2018, [54]–[55].
(vii) the deceased’s school progress report (Izkaz), where the parent of Franc Jeklar is stated as ‘Valentin’;[84]
[84]Defendants’ submissions filed on 9 October 2018, [45(c)(ii)]; Exhibit ZS-8 to the Affidavit of Zdravko Stare sworn 19 September 2018; Exhibit SJN-14 to the Affidavit of Sarah Jane Nicholls sworn 2 April 2019 (translated version of the Izkaz). See also Affidavit of Zdravko Stare sworn 19 September 2018, [56].
(viii) the deceased’s Military Service Book, where his father’s name is recorded as ‘Valentin’;[85]
[85]Defendants’ submissions filed on 9 October 2018, [45(c)(iii)]; Exhibit ZS-9 to the Affidavit of Zdravko Stare sworn 19 September 2018. See also Affidavit of Zdravko Stare sworn 19 September 2018, [61]–[62].
(ix)the deceased’s death certificate, where the name of the deceased’s father is recorded as ‘Velentin Jeklar’, with his occupation listed as ‘farmer’;[86] and
[86]Defendants’ submissions filed on 9 October 2018, [45(g)]; Exhibit KME-4 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018.
(x) the grant of Letters of Administration, which refers to ‘Valentin Jeklar’ as the deceased’s brother;[87] and
(d) a letter from Valentin Jeklar Senior to the Liberation Front Local Board in Jesenice, in which he states that ‘the undersigned Jeklar Valentin hereby asks for his son Jeklar Franc, born on 26 November 1921, now working at the Command of the town of Bohinjska Bistrica, to be granted days off now at the time of hay harvesting’. [88]
[87]Defendants’ submissions filed on 9 October 2018, [45(h)]; Exhibit KME-1 to Affidavit of Kathryn Mary Ensor sworn 26 April 2018.
[88]Defendants’ submissions filed on 9 October 2018, [52(a)]; Exhibit ZS-10 to Affidavit of Zdravko Stare sworn 19 September 2018. See also Affidavit of Zdravko Stare sworn 19 September 2018, [63]–[65].
The defendants submitted that the letter to the Liberation Front Local Board, Valentin Jeklar Senior’s will, and the conversation that Valentin Jeklar Junior deposes to having had with his father regarding the future of the Jeklar family farm, all amount to express admissions of the deceased’s paternity by Valentin Jeklar Senior in his lifetime.[89] STL did not contend to the contrary.
[89]Defendants’ submissions filed on 9 October 2018, [53].
Counsel for the defendants noted that the death certificate for Valentin Jeklar Senior contains reference to an ‘illegitimate son Jeklar Franc, 11 November 1921, SFRY, worker, now resident in Australia’.[90]
[90]Exhibit ZS-13 to Affidavit of Zdravko Stare sworn 19 September 2018.
The defendants also rely upon the Family Sheets relating to Valentin Jeklar Senior and Ivana Jeklar (née Zupan) exhibited to Ms Nicholls’ affidavit of 2 April 2019 to show that the Status Animarum records the deceased as the son of Valentin Jeklar Senior.
Discussion
In the current case, there is ample evidence to support the contention that Mr Valentin Jeklar Senior expressly or impliedly admitted that he was the father of the deceased, such as to satisfy the requirements of s 7(1)(b) of the Act. The real issue for the determination of the Court is whether there is sufficient evidence to satisfy the Court, on the balance of probabilities, that the deceased was in fact the son of Valentin Jeklar Senior. That admissions of paternity have been made is relevant to, but not determinative of, the question of actual paternity.
I note that, while the authorities make it clear that the standard of proof applicable to proceedings of this nature is the ordinary civil standard, there is reference in the authorities to the question of paternity being a ‘grave’ or ‘serious’ issue, with the evidence to be approached accordingly.
In my view, such references do not, of themselves, detract from the principle that the ordinary civil standard of proof applies to proceedings of this nature. They merely reflect the well‑known principles derived from Briginshaw v Briginshaw,[91]which in turn have been codified by s 140(2) of the Evidence Act 2008 (Vic), which provides as follows:
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account –
(a) the nature of the cause of action of defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[91](1938) 60 CLR 336.
In the current proceeding, where the real factual issue is the question of actual paternity, rather than whether there has been any acknowledgement of paternity, a number of matters need to be held in mind. First, in the absence of DNA evidence, it is impossible to establish paternity with any complete certainty. Secondly, the parents of the deceased are themselves long deceased, so are therefore unable to give evidence. Thirdly, while Valentin Jeklar Senior’s acknowledgement of paternity is not conclusive, that acknowledgement is at least circumstantial evidence of the existence of a sexual relationship between him and the deceased’s mother at the approximate time of the conception of the deceased. And finally, while the question of paternity is always a serious matter, in the current case, any declaration of paternity has financial, rather than personal or social consequences.
The circumstances in the current proceeding are to be contrasted with those in other proceedings of this nature in this Court: in some of those proceedings, making a declaration of paternity could have had substantial, and possibly devastating personal consequences for the child, the purported father, and/or a person who may have raised a child believing he was the father. One can understand that a court faced with such circumstances would need to feel a high degree of satisfaction before making a declaration of that nature. In the current case, while it is still necessary for the Court to be positively satisfied of the fact of paternity before making a declaration of paternity, the potential adverse consequences of such a declaration are limited, given that most of the main actors are deceased, and there appears to be no doubt that the deceased was always considered to be and was treated as a member of the family of Valentin Jeklar Senior.
As noted above, STL does not dispute that the relationships between the deceased, Valentin Jeklar Senior, and the defendants were genuine and close. However, STL submitted that it is insufficient for the defendants to merely demonstrate that Valentin Jeklar Senior believed that the deceased was his son, or that he had treated the deceased like his son, as the law also requires the Court to find the existence of a biological relationship between the deceased and Valentin Jeklar Senior, in order for the defendants to inherit the deceased’s estate.
Further, STL submitted that while it does not positively assert that the deceased was not the biological son of Valentin Jeklar Senior:[92]
[A]s the administrator of the Deceased’s estate, [it] is under a duty to properly administer the estate. This includes ensuring that the estate is distributed to the proper beneficiaries. STL is therefore entitled to test the Defendants’ evidence; neither STL nor the Court is a mere ‘rubber stamp’.[93]
[92]Plaintiff’s supplementary submissions filed on 3 December 2018, [26].
[93]Plaintiff’s supplementary submissions filed on 3 December 2018, [27].
The defendants relied upon the amended birth certificates of the deceased dated 2 November 2018 and 21 Mary 2019, which named Valentin Jeklar Senior as the father of the deceased.
Section 8(1) of the Act states that:
Where the name of a parent of a child is entered in the register of births in the Register maintained under the Births, Deaths and Marriages Registration Act 1996 in relation to the child a certified copy of the entry purporting to be made or given under section 46 of that Act shall be prima facie evidence that the person named as a parent is a parent of the child.
The defendants submitted that the absence of the father’s name from the deceased’s birth certificate dated 30 October 2012 was not surprising given that he was born out of wedlock and that the evidence is that, prior to the Second World War, in Slovenia, the father’s name was not recorded on the birth certificate of a child not born of a marriage.
STL submitted that while s 8(1) of the Act only refers to register of births maintained in Victoria, it accepts that the principle is applicable to birth certificates issued in other jurisdictions, and if the deceased’s birth certificate always named Valentin Jeklar Senior as his father, the proceeding would probably not have been necessary. While STL did not submit that I should not have regard to the amended birth certificate issued on 2 November 2018,[94] obtained by the defendants, which now shows Valentin Jeklar Senior as the deceased’s father, STL noted that this document seemed to have been obtained for the purpose of this proceeding, and the weight to be given to the amended birth certificate should reflect the purpose for which it was obtained.
[94]Birth certificate issued on 2 November 2018: Exhibit SJN-7 to Affidavit of Sarah Jane Nicholls sworn 13 November 2018.
In her affidavit sworn on 29 October 2018, Ms Nicholls deposed as follows:
I am informed by Mr Stare and believe that he has made an application on behalf of the defendants to the Registrar of Bohinjska Bistrica in the Municipality of Bohinj (‘the Registrar’) to amend the birth certificate of Franc Jeklar born on 13 November 1921 (‘the deceased’) by recording the name of ‘Valentin Jeklar’ born on 3 January 1884 (who is referred to in affidavits filed in the proceeding as Valentin Jeklar Senior) as the father of the deceased.[95]
[95]Affidavit of Sarah Jane Nicholls sworn 29 October 2018, [3].
Ms Nicholls deposed that Mr Stare had made a request to the Municipal Court in Radovljica for the original will of Valentin Jeklar Senior, which was kept on the probate file, to be made available to the Registrar to support the defendants’ application to amend the deceased’s birth certificate.[96] The Registrar had issued an extract of the deceased’s birth certificate on or about 2 November 2012, which showed the name of the deceased’s father as ‘Valentin Jeklar’.[97] At the same time, the Registrar also corrected the deceased’s date of birth, which was incorrect on the original birth certificate.
[96]Affidavit of Sarah Jane Nicholls sworn 29 October 2018, [7].
[97]Affidavit of Sarah Jane Nicholls sworn 13 November 2018, [6]. See also, Affidavit of Sarah Jane Nicholls sworn 2 April 2019, [3]-[14].
STL submitted that the birth certificate is only prima facie evidence of parentage. The Court may look beyond the birth certificate if the circumstances of the case suggest that the birth certificate may not be entirely reliable, noting that the amendment was made well after the deceased’s birth, and that neither Valentin Jeklar Senior nor the deceased’s mother was involved in amending the document.
The defendants submitted that, in the event that the amended birth certificate alone is insufficient to satisfy the Court of the biological relationship between the deceased and Valentin Jeklar Senior, it is open to the Court to find on the balance of probabilities that such a relationship existed through reference to the other evidence adduced by the defendants, including the following:
(a) reference to the deceased as the illegitimate son of Valentin Jeklar Senior in the Status Animarum;
(b) Valentin Jeklar Senior did not seek to correct the public record reflected in the Status Animarum;
(c) the absence of evidence disputing that Valentin Jeklar Senior was the deceased’s father, or asserting that someone else was the deceased’s father;
(d) the deceased lived with Valentin Jeklar Senior and his family for 27 years following the death of his mother, and that third parties knew of this fact;[98]
(e) Valentin Jeklar Senior’s will refers to the deceased as his son;[99] and
(f) the evidence of conversations between the defendants and Valentin Jeklar Senior regarding his relationship with the deceased’s mother.
[98]Affidavit of Valentin Jeklar sworn 3 September 2018, [16]; Affidavit of Zdravko Stare sworn 19 September 2018, [36].
[99]Affidavit of Zdravko Stare sworn 19 September 2018, [71]; Exhibit ZS-13 to Affidavit of Zdravko Stare sworn 19 September 2018.
In his closing submissions to the Court, Counsel for the defendants submitted as follows:[100]
[100]Transcript, 60–62.
Reliance is placed — we say considerable reliance — on the status animarum as evidencing that relationship with father and son. We rely on the declaration of the vicar general, that it’s derivation is a source of documents that a third party can rely upon. The — we note that the plaintiff … has accepted that as objective evidence in their submissions, and we agree.
We refer to the decrees that were made by the court as evidence of both the probate hearing and, ultimately, the decree of distribution recognising that the will had been made and the parties have acted on it. We refer, in particular, to the will that was made. So what I’m identifying, Your Honour, is the evidence that is relied upon in this case as establishing, we say, the existence of a father/son relationship.
I took you to the class catalogue. The school progress report. You saw the military service book. They’re all documents, again, that show unequivocally that the relationship was that of father and son. Lived with his family until he moved to Australia for some 30-odd years, and there was reference made by the deceased's father, Valentin Jeklar junior, to the deceased as being his farm with intention, as he said to the other, that he will take up – over the farm as his eldest son.
…
[W]e rely upon the family sheet and Ms Nichols' affidavit of 2 April 2019. State Trustees made the point that the original birth certificate in its unamended form made no reference to the father being Valentin Jeklar Senior. Mr Staraj [sic] has deposed that prior to the Second World War, children born out of wedlock were not identified and no doubt that there would have been some stigma and social matters, but quite apart from the existence of records.
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Most significantly, the will. The will makes express references to ‘my son’ and acknowledges that his son has renounced his interest, despite the father's — that’s Valentin Jeklar Senior’s wishes that the deceased would return and take over the farm — the eldest son. So that’s clear evidence of admission, recognition and acknowledgement.
In the absence of DNA evidence regarding the paternity of the deceased, Counsel for STL emphasised the need for evidence of a relationship between Valentin Jeklar Senior and the deceased’s mother. In this respect, STL submitted that the evidence provided by the defendants is somewhat weak, stating:[101]
I’m simply putting it is the duty on the State Trustees and the court to determine whether defendants have made out their case, and I’m simply stating that they are — while they have gone to great lengths to find a lot documents, there are parts of the evidence that could’ve improved but is not currently before the court.
And the point I’m saying is the relationship between Valentin Jeklar senior and the deceased mother would’ve assisted in establishing the biological relationship, but the evidence of that is missing. That’s all I wish to say, Your Honour.
[101]Transcript 68.
In response to STL’s contention that there was no evidence of a relationship between the deceased’s mother and Valentin Jeklar Senior, the defendants provided supplementary affidavit material regarding this relationship. This consisted of further affidavits sworn by the defendants, all very similar in nature, and deposing to having been provided with a copy of Mr Stare’s affidavit, sworn on 8 October 2018, and attesting that ‘[t]he matters stated in paragraphs 2 and 3 of [that affidavit were to their] knowledge true and correct’.[102] The relevant paragraphs from Mr Stare’s affidavit state:[103]
[102]Affidavit of Valentin Jeklar sworn 10 January 2019, [4]–[5]; Affidavit of Julijana Jeklar sworn 9 January 2019, [4]–[5]; Affidavit of Marija Smukavec sworn 9 January 2019, [4]–[5]; Affidavit of Ivana Langus sworn 10 January 2019, [4]–[5].
[103]Affidavit of Zdravko Stare sworn 8 October 2018, [2]–[3].
2.I am informed by Valentin Jeklar, Marija Smukavec, Julijana Jeklar and Ivana Langus and believe that at or about the time Valentin Jeklar Senior told them that Ivana Jeklar is the mother of the deceased, he also told them that:
(a)Valentin Jeklar Senior had a relationship with Ivana Jeklar and the deceased is the child of that relationship; and
(b) Ivana Jeklar died when the deceased was very young.
3.I am also informed by Valentin Jeklar, Marija Smukavec, Julijana Jeklar and Ivana Langus and believe that the deceased lived with Valentin Jeklar Senior after his mother’s death and always referred to the deceased as his son.
STL submitted that ‘no details or context have been provided with respect to the conversation between Valentin Jeklar Senior and the defendants set out in Mr Stare's further affidavit. It is therefore difficult for the Court to assess the reliability of that evidence’.[104] However, STL did not object to the Court accepting the hearsay evidence of the defendants pursuant to s 190 of the Evidence Act 2008 (Vic).
[104]Plaintiff’s supplementary submissions filed on 3 December 2018, [23].
Conclusion
In my view, the cumulative effect of the evidence provided by the defendants, together with STL’s (appropriate) concession that Valentin Jeklar Senior acknowledged paternity of the deceased during his lifetime, is sufficient to support a declaration of paternity in this case.
While no‑one can now truly know whether Valentin Jeklar Senior was the father of the deceased, what is known is that, from a very early age, Valentin Jeklar Senior raised and acknowledged the deceased as his son. Notwithstanding the stigma which might have been associated with the deceased’s illegitimacy, Valentin Jeklar Senior was referred to as the deceased’s father in school records and parish records, and in Valentin Jeklar Senior’s will. The explanation for the failure of Valentin Jeklar Senior to be referred to in the deceased’s birth certificate until recently is credible.
Furthermore, all of this documentary evidence pre‑dates, by decades in some cases, the current proceeding, or any time when it might be considered to be of significance that the deceased was publicly acknowledged as a blood relative of the defendants. Further, in the case of the Status Animarum, from which the Family Sheets in evidence were derived, the records were kept by those who had an interest in their comprehensiveness and accuracy.
While the deceased’s birth certificate dated 30 October 2012 did not name his father, in my view, the amended birth certificate which now records Valentin Jeklar Senior as the deceased’s father is evidence that holds some weight, although not as much weight as it would have had if one or both biological parents had requested the amendment. I am satisfied by the defendants’ explanation for why they have only recently applied for an amended certificate: in particular, their advanced age, their lack of English language skills, and their ignorance of legal matters.
In any event, any doubt that might remain regarding the provenance of the birth certificate is overcome by the preponderance of other evidence attesting to the nature of the relationship between the deceased and Valentin Jeklar Senior. This is clearly a case where the cumulative effect of the evidence — and the absence of a contrary hypothesis regarding the deceased’s parentage — is such that only one conclusion can be drawn: namely, that the deceased was the biological son of Valentin Jeklar Senior.
I have reached this conclusion in the absence of the best potentially available evidence: that is, in the absence of DNA evidence. That this evidence is unavailable is not through the fault of the defendants, and, indeed, no real criticism can be levelled at STL for disposing of the deceased‘s belongings. However, the absence of DNA evidence does not preclude the Court from making a declaration as to paternity, based upon other circumstantial evidence: indeed, ss 7 and 10 of the Act have been in force in substantially their current terms since 1974, if not before, well before the development and widespread use of DNA testing for identification purposes.[105] Even in the absence of modern investigative techniques, courts have been empowered to make declarations of this nature, which until relatively recently can only have been based upon circumstantial evidence.
[105]Wikipedia states that ‘Highly accurate DNA parental testing became available in the 1980s’.
As for the evidence regarding the relationship between Valentin Jeklar Senior and the deceased’s mother, I accept that this is an appropriate occasion to dispense with the prohibition against hearsay in accordance with s 190 of the Evidence Act 2008 (Vic). While the evidence of the defendants regarding the conversation they had with their father is not disinterested, the evidence is important to the resolution of this proceeding. Further, while STL does not concede that there was a relationship between Valentin Jeklar Senior and the deceased’s mother, it does not contend to the contrary. Thus, it could be said that the evidence goes to a matter which is not genuinely in dispute between the parties.[106] While there is limited evidence about the timing and context of the relevant conversation, it was said to have taken place ‘a few years’ before his death. It is unsurprising that a conversation of that nature occurred after the death of Ivana Jeklar in 1959, and where there is other evidence that Valentin Jeklar Senior was concerned with the question of who was to take over the Jeklar family farm after his death. Further, the statement of Valentin Jeklar Senior that he had been in a relationship with the deceased’s mother is consistent with the documentary evidence, and his undisputed acknowledgement of paternity.
[106]Section 190(3)(a) of the Evidence Act.
Valentin Jeklar Senior’s acknowledgment of paternity, the cohabitation of the deceased with the defendants’ family and the parish records and other documents, all combine to support the conclusion that the declaration ought be made. Valentin Jeklar Senior told his children that he had been in a relationship with the deceased’s mother. He and the deceased’s mother were neighbours, in what the evidence (and consultation with Google Maps) shows was a small, isolated village, with houses identified by their numbers or name, not their street addresses. There is evidence to the effect that residents of the village only had access to telephones in recent years. While it is theoretically possible that the deceased was fathered by someone else, it is an inherently unlikely hypothesis.
The acknowledgement of paternity by Valentin Jeklar Senior is of substantial significance in the current case. As noted above, while there is no direct evidence of the historical financial position of the Jeklar family, I consider that it is safe to draw an inference that life in a small, isolated village in Slovenia in the years following World War I would have been reasonably arduous. That life was difficult is illustrated by the premature death of the deceased’s mother from pneumonia at the age of 33, and the fact that two of the nine children of Valentin Jeklar Senior and his wife died in infancy. It seems to me to be inherently unlikely that an unmarried farmer would take on the responsibility of raising a child, alone, if he did not have a substantial degree of certainty about the paternity of the child, given the resources required to raise and educate a child.
Further, while nothing is impossible, it seems inherently unlikely that a single woman in a small village in 1920 would have been engaged in an extra marital relationship with more than one man (that is, in addition to the relationship she was having with her near neighbour), such that there was a real prospect of the deceased having been fathered by anyone other than Valentin Jeklar Senior. Accordingly, all of the evidence points towards Valentin Jeklar Senior being the father of the deceased, and there is nothing beyond mere speculation to suggest to the contrary.
As the questions in the Further Amended Originating Motion have all been answered in the affirmative, it is unnecessary for me to consider the issue of whether a Benjamin order is appropriate in respect of Neža Jeklar. If it were necessary to do so, I would have made such an order, as the best evidence available is that Neža Jeklar died in infancy.
For the reasons outlined above, the defendants are entitled to:
(a) a declaration pursuant to s 10(1) of the Status of Children Act 1974 that the relationship of father and child existed between the deceased and Valentin Jeklar Senior; and
(b) a declaration pursuant to s 7(1)(b) of the Status of Children Act 1974 that paternity was admitted by Valentin Jeklar Senior during his lifetime.
Accordingly, the questions in the Further Amended Originating Motion should be answered as follows:
Question 1: Yes.
Question 2: Yes.
Question 3: Yes to both (a) and (b).
Question 4: not necessary to answer.
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