Sweeney v Castle
[2014] WASC 266
•24 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SWEENEY -v- CASTLE [2014] WASC 266
CORAM: MASTER SANDERSON
HEARD: 17 JUNE 2014
DELIVERED : 24 JULY 2014
FILE NO/S: CIV 2381 of 2013
MATTER :Section 45(1) of the Administration Act 1905 (WA)
The estate of GRACE EDNA CALLAGHAN late of Lathlain Nursing Home, Archer Street, Carlisle in the State of Western Australia, deceased
BETWEEN: LORRAINE BLANCHE SWEENEY
Plaintiff
AND
BETTY MAY CASTLE (as Administrator of the estate of Grace Edna Callaghan)
First DefendantBETTY MAY CASTLE (as Beneficiary of the estate of Kevin John Kramer a deceased beneficiary of the estate of Grace Edna Callaghan)
Second DefendantFRANK KRAMER by his Guardian Ad Litem PATRICIA MONICA TOWERS-HAMMOND (and as Beneficiary of the Estate of Kevin John Kramer a deceased beneficiary of the estate of Grace Edna Callaghan)
Third DefendantDOREEN ELIZABETH HENDERSON (as Beneficiary of the estate of Grace Edna Callaghan)
Fourth DefendantBETTY MAY CASTLE (as Beneficiary of the estate of Grade Edna Callaghan)
Fifth DefendantFRANK KRAMER by his Guardian Ad Litem PATRICIA MONICA TOWERS-HAMMOND (as Beneficiary of the estate of Grace Edna Callaghan)
Sixth Defendant
Catchwords:
Probate - Determination of who is entitled to take under intestacy - Turns on own facts
Legislation:
Nil
Result:
Plaintiff entitled to distribution from the estate
Category: B
Representation:
Counsel:
Plaintiff: Dr P R MacMillan & Mr M Bassett-Scarfe
First Defendant : Mr L F A Nixon & Mr A R Ashoorian
Second Defendant : Mr L F A Nixon & Mr A R Ashoorian
Third Defendant : Not applicable
Fourth Defendant : Not applicable
Fifth Defendant : Mr L F A Nixon & Mr A R Ashoorian
Sixth Defendant : Not applicable
Solicitors:
Plaintiff: Peel Legal
First Defendant : Lynn & Brown Lawyers
Second Defendant : Lynn & Brown Lawyers
Third Defendant : Not applicable
Fourth Defendant : Not applicable
Fifth Defendant : Lynn & Brown Lawyers
Sixth Defendant : Not applicable
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
The Public Trustee v Gulvin [2004] WASC 140
MASTER SANDERSON: An issue in this application is the distribution of the estate of the late Grace Edna Callaghan. The background facts can be summarised in this way.
Grace Edna Callaghan (the deceased) died on 31 December 2009. The deceased left a will executed 15 June 1983 (the Will). The named executor in the Will predeceased the deceased. Both of the beneficiaries of the residuary estate, one of whom was the named executor, predeceased the deceased. There was therefore an intestacy as to the residuary estate. Letters of administration (with the Will annexed) were granted to the first defendant on 2 February 2012.
The deceased's mother was Amelia Ruth Cooke (Amelia). Amelia had various aliases. Linna Singh (Singh) was the deceased's father. Amelia had four other children, including Doreen Winifred Howard (Doreen) and Elsie Eveline Singh (Elsie). Doreen was the plaintiff's mother. Doreen had two children - the plaintiff and Brian David Howard who died on 21 August 2008. Amelia left Singh for Leslie Arthur Nuttall (Nuttall). The issue in this case is whether Doreen was the deceased's half‑sister, their mother being Amelia and their fathers being Nuttall and Singh respectively.
As counsel for the first, second and fifth defendants (that is, Betty May Castle) noted in his submissions, there are a number of matters which are not in dispute. These are:
1.Amelia was the deceased's mother;
2.the deceased's father was Amelia's husband, Singh, who she married on 18 January 1910;
3.prior to her marriage to Singh, Amelia had a son, Harold Leslie Cooke, born 9 October 1904;
4.Singh and Amelia were the parents of two further daughters, Minnie May, born 3 October 1910 and Elsie Singh, born 15 January 1912;
5.Doreen's father was Leslie Arthur Nuttall; and
6.Betty Castle is the deceased's niece and Amelia's granddaughter.
Although it has not been possible to locate a copy of her birth certificate, it is not in dispute Doreen was born in 12 October 1907. But without the birth certificate there is no official record as to who was her mother. So the plaintiff has to rely on other matters. Therein lays the problem.
The prime evidence upon which the plaintiff relies is what might be described as the 'ward of State proceedings'. In October of 1914, Doreen and Elsie Nuttall were made wards of the State. The plaintiff has been able to locate a copy of the 'Police Court Charge Book'. On the top of this page there is a stamp 'Children's Court, Perth'. Under the date of 12 October 1914 appear the names of Doreen and Elsie Nuttall. In a column headed 'Nature of Charge' there appears the following:
You and each of you on the 10th day of October 1914 at Leederville were deemed to be neglected children within the meaning of the State Children Act 1907.
Under the heading 'Name and occupation of person charging' there is a reference to 'Inspector Crouch' and 'S C Dept'. The charge book shows that the two girls were committed to the care of the State. The record is signed by two Justices of the Peace.
Before dealing further with this proceeding, I should make mention of the relevant provision of the then applicable The State Children Act 1907 ‑ 1921 (WA) (the Act). Section 4 of that Act provides definitions and one of those definitions is 'neglected child'. The section reads as follows:
'Neglected child' means any child who -
(1)habitually begs or receives alms, whether under the pretext of sale or otherwise, or frequents any public place for the purpose of so begging or receiving alms; or
(2)wanders about, or frequents any public place, or sleeps in the open air, and does not satisfy the court that he or she has a home or settled place of abode; or
(3)resides in any reputed brothel or associates or dwells with any person known to the police or reputed to be a prostitute, whether such person is the mother of such child or not; or
(4)associates or dwells with any person who has been convicted of vagrancy, or is known to the police as of bad repute, or who has been or is reputed to be a thief or habitual drunkard; or
(5)is under the guardianship of any person whom the court shall consider unfit to have such guardianship; or
(6)is illegitimate, and whose mother is dead or is unable to maintain or take charge of such child; or
(7)is living under such conditions as to indicate that the child is lapsing or likely to lapse into a career of vice or crime; or
(8)not being duly licensed for that purpose, is engaged in street trading;
After the two girls were committed as wards of the State, their names were entered on what was described as the 'Ward Register'. A copy of that register appears as annexure DMC 2 to an affidavit of Debbie Maree Cooley, sworn 5 September 2013. There are two entries which are relevant. First, under a column headed 'Why sent, and under which section. Whether Destitute, Neglected, or Convicted', there appears the word 'Neglected'. Under the column headed 'Name, Address, Character, Occupation and Earnings of Parents', there appears the following:
Leslie Nuttall
109 Vincent St. Works at Lion Mill - 9/6 day
Sober
Amelia Singh
bad reputation - address unknown
The report of Inspector Crouch is dated 5 October 1914 and appears as annexure DMC 5. It is on a form headed 'State Children Department' and it is addressed to 'The Secretary'. Because of the importance of this report, I will quote it in full:
I visited this home today as per instructions.
The children are living at above address in charge of their Grandfather, Mr Chas Cooke, an old age pensioner.
The mother of the children, Amelia Singh has recently left her home and gone away. The father of the children is Leslie Nuttall who works at Lion Mill and has been maintaining a home for his children and Amelia Singh with whom he has been living for some years although unmarried. Nuttall comes home at week ends.
At the moment the children are being looked after by Mr Cooke who is father to Mrs A Singh who also has lived with the family for some years.
I should explain that Mrs Singh married an Afghan and although divorce proceedings were taken sometime ago, a divorce was not granted as I understand both parties were at fault.
I have arranged for Mr Nuttall to come to this office on Saturday next when he will be in Town and I will see him in the matter.
In the meantime the children are being looked after by the grandfather Mr Cooke who although old can render them sufficient attention until I can arrange something with the father of the children. I understand Nuttall supplies ample money to keep the house going. The lady next door is also giving attention to the children.
It is the plaintiff's submission for an order committing the two girls as wards of the State, there must have been a finding by the Justices of the Peace they fell within the definition of 'neglected child' under the Act. The question then is which was the applicable subsection? That can only be determined by reference to the report of Inspector Crouch. If that is the case, the only section which could be applicable is subsection (6). It was submitted the fact an order was made means there was a finding Amelia was the mother of the two girls.
There is one problem with that argument. It also requires acceptance there was a finding that both girls were 'illegitimate'. It is common ground Elsie's mother was Amelia and her father was Singh. If that is so, Elsie was not illegitimate - she was born while Amelia and Singh were married. If the enquiries of the Justices of the Peace were incorrect on that issue, perhaps they did not carefully turn their minds to the question of who was the mother to the two girls.
The only other evidence which bears upon the issue is a report to be found in the local newspaper, 'The Daily News', of Thursday, 4 May 1911. Rather than attempt to paraphrase what is said, I have attached to these reasons a copy of that report. A number of points emerge.
First, the report says that as at the date that the marriage of Amelia and Singh, Amelia had one child. Harold Leslie Cooke was born 9 October 1904. If Amelia was Doreen's mother, it might have been expected the report would refer to two children.
Second, it would seem Amelia had lived with Nuttall for approximately two years before she left him for Singh. Amelia and Singh were married in January 1910. Amelia may not have married Singh immediately after she left Nuttall. It is possible when Amelia left Nuttall, Doreen remained with him. So in other words, it is possible Amelia had Harold with an unknown individual, she then went to live with Nuttall and that relationship produced Doreen. When she left Nuttall for Singh, Doreen remained with her father and Harold went with his mother. That would explain the reference to the one child in the newspaper article.
As if all of this was not complicated enough, further analysis of Inspector Crouch's report makes it difficult to reconcile the newspaper report with the genealogy. The two girls are referred to as 'Doreen Nuttall' and 'Elsie Nuttall'. In fact, Singh was Elsie's father and she should properly have been referred to as 'Elsie Singh'. Inspector Crouch said the girls were being cared for by their grandfather, Mr Chas (presumably an abbreviation for Charles) Cooke. Later in the report, Mr Cooke is said to be Amelia's father. That would explain the surname of Amelia's son, Harold Leslie Cooke - he simply had his mother's maiden surname. But none of this explains the whereabouts of Minnie May. She was born on 3 October 1910 and Amelia and Singh were married in January 1910. If Doreen and Elsie were living with their grandfather, where was Minnie? And where too was Harold, who, at the time, would only have been 7 years of age? It is a murky picture.
There are four other matters which are relied upon by the plaintiff. The first is adoption proceedings in 1931 in relation to Elsie. The Adoption Act enforced at the time required either the parents' consent, a finding that the parents were both dead or the child had been deserted. This last requirement necessitated the court being satisfied as to whom the parents were and that they had failed to make arrangements for the child, thus establishing the desertion. It was accepted that Elsie Nuttall's mother was Amelia. The court, according to the adoption records, relied once again on Inspector Crouch's report and on the report of the departmental officer, Sydney Watson.
Both the court and Sydney Watson in determining that Elsie Nuttall was Amelia's daughter, relied on the uncontested evidence in Inspector Crouch's report. It was submitted on behalf of the plaintiff that meant there was a court finding that both Elsie and Doreen were Amelia's children.
On behalf of the first, second and fifth defendants, it was submitted Elsie's adoption was irrelevant. It related only to Elsie and said nothing about who was Doreen's mother. As reliance was placed on the report of Inspector Crouch, the adoption proceedings took the matter no further than the ward of the State proceedings.
On this issue, I accept the submissions made on behalf of the first, second and fifth defendants. There is nothing to suggest in the adoption proceedings any attention was paid to whom was Doreen's mother. It was not an issue. The adoption proceedings could not be said to somehow give rise to an estoppel in relation to the question of who was Doreen's mother.
The other three matters relate to the plaintiff's contact with the deceased, the deceased's conduct in referring to herself as Doreen's sister, and an affidavit sworn by Betty May Castle in an application for probate where she refers to Doreen as the deceased's sister. In my view, none of these matters is of any moment. That is because of the way s 12A of the Administration Act 1903 (WA), which applies to the distribution of the intestate estate, is worded. The section is in the following terms:
12A. Entitlement to participation in distribution of intestate estates
(1)Where, after the coming into operation of the Administration Act Amendment Act 1971, any person dies intestate as respects all or any of his property, for the purpose of determining who is entitled to participate in the distribution of that part of his estate to which the intestacy applies the relationship between a child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly.
(2)In any proceedings where a person relies on a matter of fact made relevant by the provisions of subsection (1) -
(a)that fact shall not be taken to be proved unless it is established to the reasonable satisfaction of the Court; and
(b)where the parents are not, or have not been, married to each other, the relationship between a child and his parent, and all other lineal or collateral relationships, shall be recognized only -
(i)if parentage is admitted by or established against the parent in his lifetime; and
(ii)where the purpose for which the relationship is to be determined enures for the benefit of the parent, if parentage has been so admitted or established in the lifetime of the child.
(2a)Subsection (2)(b) does not apply to or in respect of a relationship established by the Artificial Conception Act 1985.
(3)The estates of all persons who have died intestate as to the whole or any part thereof before the coming into operation of the Administration Act Amendment Act 1971, shall be distributed in accordance with the enactments and rules of law which would have applied to them if that Act had not been passed.
(4)The estates of all persons who have died intestate as to the whole or any part thereof before the coming into operation of Part 2 of the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 shall be distributed in accordance with the enactments and rules of law which would have applied to them if that Act had not been passed.
What is relevant in this case is whether or not the parentage has been 'established in the lifetime of the child'. It seems doubtful whether any statement by the child could be decisive. It may be some evidence in support of establishing the fact, but it is an admission by the parent which would be decisive. Otherwise, an examination of the facts and available evidence was necessary to ascertain whether or not parentage had been 'established'.
Two issues emerged when considering this section. The first was the applicable standard of proof. This was a matter raised by counsel for the plaintiff in his written submissions. In The Public Trustee v Gulvin [2004] WASC 140, I said:
Section 18 of the Interpretation Act 1984 directs that the construction that promotes the purpose or object underlying the law shall be preferred to a construction that would not. In Mills v Meeking (1990) 91 ALR 16 at 31 ‑ 32, Dawson J said that there must be more than one possible construction of legislation before the purposive approach required by the Interpretation Act comes into effect. His Honour also said that modification must also be precisely identifiable as that which is necessary to give effect to the purposes of the Act and be consistent with the wording of the Act. In Re The News Corporation Ltd & Ors (1987) 70 ALR 419 at 421, Bowen CJ observed that where the Court was analysing the construction that would promote the purposes of the Act, it must ascertain and enforce the actual commands of the legislation [11].
In that case, I was dealing with s 4(2) of the Family Provision Act 1972 (WA). That section says a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the court.
Counsel submitted the authorities do not support the phrase 'reasonable satisfaction' as comprising 'a quite stringent evidentiary requirement'. Counsel referred to the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336, 361 ‑ 362 (per Dixon J).
It seems to me counsel's point is well made. What is required is 'reasonable satisfaction'. In particular, counsel relied upon the following passage in the judgment of Dixon J:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal (362).
Second, there is no definition in the Family Provision Act as to what is meant by 'established'. Counsel for the first, second and fifth defendants referred to the Oxford English Dictionary definition of 'established': 'Achieve permanent acceptance or recognition for'. He submitted that had not been achieved in this case.
Counsel for the first, second and fifth defendants submitted s 12A embodies a two‑stage process. Stage one is establishing, against a parent, that a particular person was their child. That is the test embodied in s 12A(2)(b)(i). If that stage is fulfilled, then stage two is establishing to the reasonable satisfaction of the court the person was in fact the child of the deceased.
With respect, I think that is the proper approach to the legislation. In many cases it may be there is no practical difference between the two stages. The legislation does not anticipate a court finding being the only way of 'establishing' during the lifetime of a person that he or she was the parent. All available evidence may suggest parentage, but then after the alleged parent's death, DNA testing may show that, in fact, there was no parent/child relationship. That would mean the first stage of the test could be satisfied but not the second. A court then would give effect to the true position.
In the end, I am satisfied the plaintiff succeeds in her claim. In my view, it was established during Amelia's lifetime she was Doreen's mother. That, I think, is the effect of the order by the Justices of the Peace committing Doreen as a ward of the State. That must have been done under s 4(6) of the definition of 'neglected child'. That does not mean to say the decision was correct. The Administration Act does not say 'correctly established'. It merely says 'established'. That is what the decision of the Justices of the Peace did. So, the stage one test is satisfied. The more difficult question is whether in fact Doreen was actually Amelia's daughter. Even though it was established in Amelia's lifetime this was the case, that is only one factor to be taken into account. Weighing all the evidence (such as it is) it seems to me to be likely Doreen was the daughter of the deceased. Of particular importance is the fact Amelia had a relationship with Nuttall prior to her marrying Singh. Doreen was born on 12 October 1907 and Amelia married Singh in January 1910. Amelia had lived with Nuttall prior to marrying Singh. There is no evidence of any relationship with any other individual save, it must be acknowledged, the relationship which led to the birth of Harold in 1904. It is also worthy of note Harold used the surname 'Cooke', whereas Doreen always appeared to use the surname 'Nuttall'.
Against that, there is the reference in the newspaper article to Amelia having one child. It is always possible the newspaper, then as now, got it wrong. But even allowing for this report being against the plaintiff, it seems to me weighing the facts in the balance, the plaintiff has established Doreen was the daughter of Amelia.
Subject to hearing from the parties, I will make orders in terms of the amended originating summons.
ANNEXURE
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