Taylor v Burgess

[2002] NSWSC 676

Reported Decision: (2002) FLC 93-120

New South Wales

Supreme Court

CITATION:	Taylor v Burgess [2002] NSWSC 676
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 5204/01
HEARING DATE(S):	25/07/02
JUDGMENT DATE:	25 July 2002
PARTIES :	Gary Wayne Taylor - Plaintiff Gregory William Burgess - Defendant
JUDGMENT OF:	Barrett J

COUNSEL :	Mr J S Van Aalst - Plaintiff Mr R M Lovas - Defendant
SOLICITORS:	Tilbury & Co - Plaintiff Watson McNamara & Watt - Defendant
CATCHWORDS:	CONTRACT - contract by mother before child's birth not to make allegations of paternity against other party to contract - construction - public policy in establishing parentage - public policy against curtailing Family Provision Act jurisdiction - EVIDENCE - whether evidence of mother about child's parentage inadmissible because of contract not to make allegations of paternity
LEGISLATION CITED:	Child Welfare Act Evidence Act 1995 Family Law Act 1975 Family Provision Act Status of Children Act 1996 Wills Probate and Administration Act 1898
CASES CITED:	A v Hayden (1984) 156 CLR 532 A G Australia Holdings Ltd v Burton (2002) NSWSC 170 Director General Department of Community Services v A (2000) G v H (1993) 16 FamLR 525 G v H (1994) 181 CLR 382 King v Foster (unreported, NSWCA, 7 December 1995) Lieberman v Morris (1944) 69 CLR 69 Re Morris (deceased) (1943) 43 SR (NSW) 35 Sullivan v Sclanders (2000) 77 SASR 419 Wilkinson v Osborne (1915) 21 CLR 89
DECISION:	Mother's evidence admitted

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IN THE SUPREME COURT REVISED
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY 25 JULY 2002

5204/01 - GARY WAYNE TAYLOR v GREGORY WILLIAM BURGESS

JUDGMENT

1 In these proceedings, the plaintiff seeks an order in his favour under the Family Provision Act 1984 as against the estate of the deceased. He does so on the basis of an allegation by him that he is a child of the deceased. The question of paternity is in issue.

2 The plaintiff intends to adduce evidence from his mother in support of his claim to be a child of the deceased. More specifically, counsel for the plaintiff intends to read an affidavit sworn by the mother. The defendant, to whom probate of the deceased’s will has been granted and who is the principal beneficiary under that will, says that this evidence of the mother should not be admitted and indeed that the mother should be restrained by injunction from giving evidence. Inadmissibility of the evidence is said to arise from s.138 of the Evidence Act 1995. The defendant's contentions center upon a deed to which I shall come in due course. They are thus wholly contract-based, there being no suggestion that this is a case involving receipt of information unknown to the recipient in the context of a confidential relationship or on condition that secrecy be maintained.

3 The defendant took steps at an earlier stage to make the mother a party to the proceedings by means of a cross-claim in which he sought specific performance and injunctive relief against her by reference to the covenants in the deed. However the cross-claim has been discontinued, so that there is no longer any pleading in which equitable relief is sought against the mother by the executor. The mother has not been represented or heard on the proposition that an injunction should issue against her, although counsel for the plaintiff has made submissions on that matter. The court is thus asked to grant injunctive relief against the mother ex parte.

4 I am not prepared to grant an injunction in those circumstances. It is virtually unthinkable that a person should be subjected to a permanent injunction on an ex parte basis.

5 The objection to the mother's evidence and the submission that the evidence is inadmissible by reason of s.138 of the Evidence Act rest on the same foundation as the claim to an injunction, namely, the deed to which I have referred. I shall come back to s.138 in due course. I should first deal with what is the central issue, namely, the operation and effect of the deed.

6 The deed was made in 1951 and it is accepted, I think, that it was executed on or about the date it bears, which is 12 April 1951. The parties to the deed are the plaintiff's mother and the deceased. Omitting the names, addresses and descriptions of the parties, the content of the deed is as follows (the mother being “the Releasor” and the deceased being “the Releasee”):

“ WHEREAS the said Releasor alleges that a child is to be born by her of which she claims the said Releasee to be the father AND WHEREAS the said Releasee disputes the said allegation and denies that he is the father of the said child and that he is any way liable to contribute towards the expenses of the birth of the said child or of the maintenance thereof but the said Releasee by way of compromise and without any admission of liability whatsoever and in consideration of the execution by the Releasor of these presents and the covenants hereinafter contained has agreed with the Releasor to make the payments hereinafter provided for NOW THIS DEED WITNESSETH as follows:-
1. IN pursuance of the premises and in consideration of the covenants and agreements hereinafter contained and on the part of the Releasee to be performed the said Releasee will upon the signing hereof pay to the said Releasor the sum of THIRTY POUNDS ( £ 30-0-0) on account of the expenses of the said Releasor preliminary to the birth of the said child.
2. AND for the consideration aforesaid the Releasee covenants and agrees that he will pay to the said Releasor if the said child shall be born alive the sum of FIFTEEN SHILLINGS (15/-) per week commencing from a date three months after the birth of the said child and will continue the payment of the said sum of fifteen shillings (15/-) per week payable four weekly until the said child shall attain the age of sixteen years or die which ever of such events shall first happen.
3. THE said Releasor hereby covenants and agrees that she will accept the payments mentioned in Clauses 1 and 2 hereof in full satisfaction and discharge of all claims and demands which she now has or may have against the said Releasee in respect of the said child and will not at any time hereafter take any proceedings under the Child Welfare Act or otherwise against the said Releasee for preliminary expenses or maintenance for or in respect of the said child.
4. THAT in the event of the said child being born alive the said Releasor will register the said child in her own name and will not disclose the name of the Releasee in any registration documents or other papers in connection with the birth of the said child and will also at all times hereafter refrain from making any allegations against the said Releasee in respect of the paternity of the said child to any person whomsoever.
5. AND in further pursuance of the premises and in consideration of the payments hereinbefore provided the said Releasor doth hereby covenant and agree with the said Releasee for and on behalf of herself and her executors administrators to hold the said Releasee and his Executors and Administrators safe and indemnified against all actions suits claims and demands which may hereafter be brought or made by her or them or by any other person whomsoever against the said Releasee in respect of or in any way connected with the said child.

IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first hereinbefore written.”

7 The defendant relies upon the part of clause 4 of the deed which, referring to the mother, says that she, "will at all times hereafter refrain from making any allegations against the said Releasee in respect of the paternity of the said child to any person whomsoever". The "said child" is, in this context, a child with which the mother was pregnant at the date of the deed. The plaintiff was born to the mother in June 1951. The mother was unmarried at the time of conception and at the plaintiff's birth. It is not in dispute, I think, that the plaintiff is the child referred to in the deed.

8 The first issue arising in relation to the deed is as to the ability of the executor to assert, in place of the deceased, a claim to relief based on the deed now that the deceased is no longer living. It is, I think, clear enough that the rights created by the deceased passed to the executor by s.44 of the Wills Probate and Administration Act 1898 unless the contract, on its proper construction, does not so operate or is of such a kind as to warrant a conclusion that the right in question was a right personal to the deceased or involves performance which can only sensibly be referred to personal actions, such as an employment contract or a contract involving other personal services.

9 In the present case the mother's promise not to make certain allegations cannot be regarded as being, of its nature, incapable of surviving the deceased's death, with the result that the executor, as legal personal representative, may maintain proceedings to enforce the covenant given to the deceased in the deed. I proceed, therefore, to the construction of the deed, noting that it records in its recitals that the mother alleges that the child to be born of her is a child of which the deceased is the father and also that the deceased disputes that allegation and denies that he is the father of the child and that he is in any way liable to contribute towards the expenses of the birth or of the maintenance of the child.

10 Two clauses of the deed provide for payments to be made by the deceased to the mother. Clause 1 provides for a payment of 30 pounds on account of expenses preliminary to birth, while clause 2 provides for periodic payments commencing when the child attains the age of three months and ceasing when the child reaches the age of 16 or upon earlier death. In clause 3 the mother covenants to accept the payments under clauses 1 and 2 in full satisfaction of discharge of all claims and demands she might have against the deceased in respect of the child and also agrees not to take proceedings under the Child Welfare Act (as then in force) or otherwise against the deceased for preliminary expenses or maintenance in respect of the child.

11 Clause 4, being the clause with which I am immediately concerned, commences with a stipulation compelling the mother to register the child’s birth in her name, without disclosing the name of the deceased in any registration or other papers in connection with the birth, and then continues with the crucial words which I have already quoted. Although I refer to this as a stipulation, I accept that it operates as a covenant given by the mother to the deceased and that the benefit of whatever continuing operation the covenant might have has devolved upon the executor.

12 The sense of the concluding part of the clause 4 covenant, as I construe it, is that the mother will never make "any allegations" to any person, being allegations of the specified description, that is, allegations against the deceased which are allegations in respect of the paternity of the child. Reading in isolation, this provision precludes the mother’s volunteering the information or suggestion that the deceased is or, as it is today, was the father of the plaintiff. In other words, any such statement, if volunteered by the mother, entails a breach of that contractual provision unless one of two other factors precludes that result, the first being some contrary indication gathered from the totality of the deed showing that some other construction was intended and the second being the question of public policy.

13 As to any contrary indication evidenced by the deed as a whole, I note that the consideration given or provided by the deceased consisted of the covenants to pay money as I have already described. The mother, as I have said, agreed to accept the covenanted payments in full satisfaction and discharge of all claims she - and I emphasise “she” - might have against the deceased in respect of the child. The promises she gave were a promise not to take proceedings for preliminary expenses or maintenance, to deal with the registration of the birth in the way I have described, to refrain from making any allegations of the kind with which I am currently dealing, and also to indemnify the deceased in a manner described in clause 5.

14 The underlying purpose was obviously to cause the covenanted payments to represent the only financial burden upon the deceased in favour of the mother in respect of the child and to cause available information about the child's paternity, insofar as the mother was the source of such information, to omit reference to the deceased. That, I infer, was to underwrite the deed's effectiveness as a means of protecting the deceased from claims of a financial kind by the mother over and above those expressly provided for in the deed itself. I emphasise here, "by the mother". The deed reflected an arrangement between the deceased and the mother only, protective of the deceased's financial position so far as claims by the mother were concerned. This is reinforced by the indemnity in clause 5 which, despite its references to legal personal representatives of the parties, is concerned only with claims “against the said Releasee in respect of or in any way connected with the said child” [emphasis added]. Protection of the deceased’s financial position during his life was thus in contemplation.

15 The promise in the last part of clause 4 is not absolute in the sense of operating in all circumstances to preclude communication by the mother of facts tending to show that the deceased was the father of the plaintiff. The clause shows this by precluding the making of “allegations”. That, to my mind, does not extend to preclude disclosure of relevant facts in response to legal compulsion. The making of “allegations” involves actively choosing to allege, where choice is available, as distinct from performing a legally imposed duty to provide information. Such an exception or qualification (that is, that legal compulsion prevails) must, in any event, be taken to attend any contractual promise of nondisclosure unless its clear terms say otherwise, in which case the public policy issue is raised in stark terms in the form of an expressed contractual intention not to obey legal compulsion.

16 It follows, in my view, that the last part of clause 4 will not preclude the giving of evidence by the mother about the plaintiff's paternity or at least facts relevant to that issue, should she become compelled to give evidence. That exception to a contractual obligation of nondisclosure is clearly recognised in the recent judgment on this subject given by Campbell J in AG Australia Holdings Ltd v Burton (2002) NSWSC 170. I refer also to the decision of the Full Court of the Supreme Court of South Australia in Sullivan v Sclanders (2000) 77 SASR 419 where equitable relief, in the form of an order to restrain the use of information unconscientiously obtained was seen as not impinging on the ordinary legal process for the eliciting of information for the purposes of litigation. Gray J said in that case:

“The granting of equitable relief as sought in this matter does not preclude the truth from being ascertained. Discovery and production, either preaction or during an action, will ensure that the relevant documentary material is available according to the ordinary rules of procedure. If the documents are relevant, then they will be discovered and produced subject to claims of privilege.”

17 The concluding part of clause 4 precludes voluntary statements by the mother to other persons in a context where the purpose of the statements is to implicate the deceased in financial claims by the mother concerning the child, he having, as it were, achieved immunity from involvement in such claims on the part of the mother by the covenants to make the specified payments. On the whole, I prefer this construction to one which gives the concluding part of clause 4 an operation at all times, in all circumstances and for all purposes. According to the construction I prefer, the clause does not preclude communication of facts relevant to his paternity by the mother to the plaintiff or to the plaintiff's solicitors or the giving of evidence by the mother in these proceedings. On the interpretation I adopt, that communication involves no breach of contract, but in case I am wrong on this, I pursue the matter further.

18 The next issue is that of public policy. The question is whether the relevant part of clause 4 must be regarded as unenforceable because of its inconsistency with public policy. On this, it can be said at once that a promise not to make allegations of paternity against a particular man in respect of a particular child (or, going further, not to disclose the fact that a particular man is or is claimed to be the father of a particular child) does not fall within any of the time honoured and established categories of contractual promises regarded by the law as contrary to public policy. This is not a case of a contract to commit a crime or to engage in fraud or to promote sexual immorality or a contract prejudicial to the administration of justice or to promote corruption in public life. These are the traditional and accepted heads of public policy. No issue under these traditional heads arises here. That, however, is not the end of the public policy question.

19 It is necessary to consider whether there exists today a head of public policy that causes a contract not to disclose information relevant to a person's parentage to be offensive. The question is one which may legitimately be canvassed. As Sir Frederick Jordan observed in Re Morris (deceased) (1943) 43 SR(NSW) 35:

“From generation to generation ideas change as to what is necessary or injurious, so that 'public policy' is a variable thing. New heads of public policy come into being and old heads undergo modification.”

20 The approach to be taken was described by Isaacs J in Wilkinson v Osborne (1915) 21 CLR 89 in a passage approved by members of the High Court in A v Hayden (1984) 156 CLR 532. Isaacs J said:

“The public policy which a Court is entitled to apply as a test of validity to a contract is in relation to some definite or governing principle which the community as a whole has already adopted either formally by law or tacitly in its general course of corporate life. The Court is not a legislator; it cannot initiate the principle; it can only state or formulate if it already exists. The Courts refuse to give effect to such a bargain, not for the sake of the defendant - indeed they do not fail to notice that his failure to abide by the agreement sometimes adds dishonesty to illegality - but for the sake of the community, who will be prejudiced if such a bargain were countenanced.”

21 Society today places a high value on establishing parentage. The law has moved significantly beyond presumptions of parentage based on the traditional marriage relationship. It now positively facilitates the establishment of parentage. In this State, we have the Status of Children Act 1996 which vests in the court jurisdiction not only to make declarations of parentage, but also to order genetic testing to aid in the exercise of that jurisdiction. There are similar provisions at Federal level in the Family Law Act 1975. The policy underlying these measures has been the subject of judicial observations.

22 In G v H (1994) 181 CLR 382, Brennan and McHugh JJ said:

“We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child's mother to be no more than the means to procure a maintenance order during the child infancy, but the finding that a particular man is the child's father might well be of the greatest significance to the child in establishing his or her lifetime identity.”

23 In the Family Court of Australia, when that same matter was heard at first instance ((1993) 16 FamLR 525), Fogarty J said:

“Paternity is now a medical and not a legal issue. Society is entitled, through the legislature and the Courts, to an inexpensive, prompt and virtually certain procedure to decide this question. Paternity is no mere inter-partes issue. The child and society has a vested interest in the correct outcome. The reasons for this are many, including heredity, the sense of identity and the private and public obligations of financial support directly relevant in this case and so exercised by the legislature over the past decade.”

24 In Director General Department of Community Services v A, (2000) NSWSC 1179 Hodgson J, when Chief Judge of this Division, said:

“On the other hand the Birth, Deaths and Marriages Registration Act and Status of Children Act disclose a clear policy in the law that the parentage of children be established and known, at least to those who need to know. Important legal rights depend upon this. Ultimately, the child has a right to know its parentage. It is very desirable that decisions now to be made by the Director General concerning D's future be made in the light of knowledge of D's parentage and the wish of A, B and C to put the matter behind them, without first squarely facing and accepting whatever may be the truth of the matter is, in my opinion, unrealistic. D's birth is a fact that cannot be undone and cannot ultimately be escaped from. Although I respect the view of C, and also apparently of A surrounding D's birth, I must come to my own view as to what is truly in the best interests of D and also of A and B; and my own view is that, in the long run, it is better for all of them that A and B face up to and accept the truth. This does not necessarily require disclosure and shame; and it need not interfere with the education and subsequent careers of A and B.”

25 The reasons for the high value placed on establishment of paternity are obvious enough. The law today rejects distinctions between the legitimate and illegitimate, so far as the status of children is concerned. This is clearly established by legislation. The civil rights of children born out of wedlock are, today, exactly the same as those of children born to married parents. There is not only a species of human right for any individual to know their true identity, subject only to statutory constraints, but also a need for matters going to the very root of society - matters regulating procreation in a civilized society - to be capable of being known.

26 I turn now to the related question of the purpose and effect of the statute under which the plaintiff brings his claim, that is the Family Provision Act. Like its predecessor, the Testator’s Family Maintenance and Guardianship of Infants Act, the present Act has a purpose of providing for the proper maintenance of persons for whom a testator might be expected to have made provision and who, in the absence of such provision, might otherwise become a charge on the community. The general notion is reflected in the following passage in the judgment of Sheller JA in King v Foster (unreported, NSWCA, 7 December 1995) by reference to earlier authority:

“In Lieberman v Morris (1944) 69 CLR 69 at 85 Rich J said that the evident purpose of the legislation was to provide proper maintenance of members of the family who would otherwise be left without adequate provision, and might, in many cases, become a charge on the community. In re Whiting (1938) SASR 188 at 192 Napier J, as he then was, said that the moral obligation of a man to provide for his widow, or the children that he has brought into the world, is not discharged by throwing the burden upon the general taxpayer.”

27 It is also pertinent to quote the observations of Williams J in Lieberman v Morris (1944) 69 CLR 69:

The Act therefore places an important limitation upon the right of a testator to dispose of his property, by will in any manner that he may think fit. It makes the operation of his testamentary dispositions defeasible to the extent required to give effect to the purposes of the Act. The only real justification for such a statutory intrusion would appear to be that it is in the public interest. The necessity, or at least the desirability, in the public interest, of such legislation, is demonstrated by the way in which, after originating in New Zealand and spreading through the Australian States and territories, it has now been adopted in a modified form in England by the Inheritance (Family Provisions) Act 1938, which is described as an Act ‘to amend the law relating to testamentary dispositions’. The legislation has analogies to other powers to override proprietary rights conferred upon the courts in the public interest, as, for instance, the powers given to the court to modify or extinguish easements and restrictive covenants conferred by s.89 of the Conveyancing Acts 1919-1943 (NSW) as amended, and to relieve against the forfeiture of leases conferred by s.129 and s.130 of that Act.”

28 There is a right for persons standing in particular relationships to a deceased to invoke the provisions of the Act and thereby to activate the court's discretion. There is a clear public policy that such matters should be allowed to come before the court unfettered by private contracts not to resort to the jurisdiction. So much was held in Lieberman v Morris itself. I regard the same public policy considerations as operating upon contractual stipulations precluding the giving of evidence relevant to the due pursuit of such proceedings. If a contract not to invoke the jurisdiction is objectionable on public policy grounds because inimical to the achievement of the social objectives of the legislation, so must a contract not to volunteer information be objectionable to the extent that its effect is to suppress evidence necessary to the pursuit of a claim under the legislation.

29 There is thus a firm basis on which to find that a contract to keep secret information about a child's parentage, where that question is relevant to an issue properly brought before a court by the child in the context of the Family Provision Act, is today a contract which is, to that extent, contrary to public policy. As Campbell J noted in AG Australia Holdings, not all contracts to keep facts secret are objectionable on public policy grounds because they have the result that it is a breach of contract to volunteer evidence. But where, as here, that result involves a matter upon which high value is placed in the interests of society going beyond the availability of evidence as such, a new and distinct public policy consideration intrudes. This is clearly so where a person institutes Family Provision Act proceedings in which their paternity is in issue and the evidence is that of a person's mother.

30 I am prepared to hold, and do hold, that a contract is contrary to public policy and unenforceable to the extent that it purports to preclude a mother giving evidence about her child's paternity in proceedings instituted by the child under the Family Provision Act in respect of the estate of the child’s supposed father.

31 On this basis, and even if I am wrong on the construction point, I do not regard the last part of clause 4 of the 1951 deed as grounding a claim by the executor to prevent or counter communication by the mother to the plaintiff and his solicitor, for the purposes of these proceedings, of information relevant to the plaintiff's paternity. It has not been suggested that the mother is otherwise than a competent and compellable witness. She is amenable to the ordinary processes of the court.

32 I return now to s.138 of the Evidence Act upon which the executor relies as a basis for a ruling that the evidence of the mother as to the plaintiff’s paternity is inadmissible.

33 Section 138 deals with evidence “that was obtained” in any of several ways described in the section itself, namely, “improperly or in contravention of an Australian law” or “in consequence of an impropriety or of a contravention of an Australian law”. Evidence so “obtained” is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

34 The executor maintains that evidence to be adduced from the mother is properly regarded as within this section because breach of contract involves “impropriety” and “contravention of an Australian law”. The definitions of an "Australian law" and "law" in the dictionary to the Act are said to lead to the conclusion that the principles of common law and equity requiring adherence to contracts amount to “an Australian Law”. For my own part, I have some difficulty with this proposition, particularly in light of the fact that the law concerned must be one that is susceptible of "contravention", which is a somewhat odd term to refer to a breach of contract. But it is quite conceivable that breach of contract, which attracts sanctions in the form of damages and, in some circumstances, equitable relief is an “impropriety”. Evidence obtained through breach of contract may thus be evidence obtained “improperly”.

35 It is necessary to emphasise, in the s.138 context, the words “that was obtained”. The section is, it seems to me, concerned with the way in which the witness who is to give particular evidence came to possess that evidence. It is designed, clearly enough, to deal with things such as confessions procured by threats, fingerprints obtained by deception and physical items obtained through illegal search. In the present case, the evidence to be adduced from the mother is evidence of her relationship with the deceased and of events in her personal life. It relates to matters within her personal experience, being matters pre-dating the deed. Her “obtaining” of that evidence had nothing to do with the deed to which she subsequently became a party and cannot possibly be regarded as having involved a breach of the covenants on her part contained in that deed.

36 I might add that, even if there were scope for the operation of s.138 in this case, the public policy considerations to which I have referred point virtually inevitably to the conclusion that the desirability of admitting the mother's evidence is such as to activate the exception.

37 In summary, therefore, the 1951 deed, on the construction I prefer, does not preclude the giving of evidence by the mother in these proceedings; and even if it purported, by its terms to do so, it would, to that extent, be contrary to public policy and unenforceable. Because no breach of contract will occur by reason of the mother’s giving evidence, there is no impropriety or contravention of the kind with which s.138 of the Evidence Act is concerned, besides which the evidence the mother is to give was “obtained” by her before she became party to the deed.

38 The evidence of the mother will be admitted, subject, of course, to such specific objections on other grounds as may be raised and dealt with when her affidavit is read.

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Last Modified: 08/01/2002