'Stolen Generations' court decision highlights differing laws for indigeous Australians

There has been only limited reporting of the recent so called "Stolen Generations battle" in the NSW Supreme Court, which involved a white adoptive family losing almost all of a $200k inheritance to the deceased adoptee's Aboriginal half-sisters.  A controversial aspect of the case was that, had the deceased adoptee not been Indigenous, his adoptive (white) half-sisters would likely have inherited the entire estate.  The intervention of Aboriginal Labor MP and former NSW minister, Linda Burney, in pleading on behalf of her Aboriginal friends also raised eyebrows.

The case involved (never married) Howard Stanley Wilson, 56, who died in 2013 without making a will.  Mr Wilson’s Aboriginal birth mother (originally from Delegate in far southern NSW) gave birth in Sydney in 1956, while unmarried and aged 18.  She had signed an order of consent to her son's adoption, which was verified by affidavit sworn and witnessed the same day by a Justice of the Peace.  That affidavit records the JP’s statement: “Previously to being signed, the said consent was read over and explained to, and in my belief understood by, the said Eunice Valmai Clark.”  In later years, Ms Clark married and went on to have three daughters, plaintiffs in the case.

The deceased was the only child in his adoptive parents’ marriage.  Following the Wilson's separation (1965) and divorce (1967), he remained in the custody of his adoptive mother (who died in 1980).  He had little contact with his adoptive father, who died in 1987.  The adoptive father married two further times. The second marriage was productive of two daughters, the defendants in the case.  The younger (born in 1971) had no real recollection of meeting the deceased.  The older defendant (born 1970) recalled intermittent family contact with the deceased up to 1982.  The evidence established that the deceased ceased to have any contact with any member of his adoptive family after that time.

Following the liberalisation of access to adoption records, the Aboriginal plaintiffs searched for, and, in 1993, made contact with their half-brother.  The deceased engaged with the plaintiffs, and their respective families, throughout the last two decades of his life.  The defendants made no efforts to resume contact with the deceased before his death in 2013.  They learned of his death  only after being contacted by a genealogist in early 2016.

The defendants claimed a statutory entitlement to the estate under the Succession Act 2006.  Under Section 129, the brothers and sisters of an intestate are entitled to the whole of the intestate estate, if the intestate leaves no spouse, no issue, and no parent.  In normal circumstances, all biological ties are legally severed by adoption, so that the defendants were the closest living legal relatives.  Notwithstanding their claimed entitlement, the defendants were prepared to submit to an order that the estate be divided equally between the deceased’s five sisters (the three plaintiffs and the two defendants) so that each would receive 20 per cent of his estate.

The plaintiffs on the other hand in June 2016 had sought a discretionary distribution order of the Court under sections of the Act relating to Indigenous persons' estates in order to claim the entire estate.  [The concept of a discretionary “distribution order” is deployed in the Succession Act 2006 NSW only as a means of dealing with (a) “multiple spouses” (e.g. legal spouse and a de-facto) of an intestate and (b) Indigenous estates.]  A person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community may apply under Sections 133 and 134.  Lindsay J found in the plaintiffs' favour and awarded them almost all of the estate.  The defendants were awarded only a token $4000 each.  He also directed that each party pay her own costs.

In reaching his decision his Honour accepted evidence from the plaintiffs (corroborated by Linda Burney) that, at least after being “reunited”, the deceased identified as an Aboriginal person.  The plaintiffs in turn were found to have maintained a connection with the Gunditjmara nation of Northern Victoria, though no formal evidence was presented of its “laws, customs, traditions and practices”.  The Court also noted the plaintiffs' repetition of elders' advice that their community emphasised blood relationships over other types of relationships, and that the disposition of a deceased estate was ultimately a matter for the family of the deceased person to decide.  Based on equity considerations, the Court (under section 134) said that the ultimate question for it to decide was "Had the deceased been required to make a will... what are the terms of the will he would have made?"

At one level, the decision to favour the plaintiffs appears logical and equitable (because the deceased would have been likely to leave his estate to them had he made a will).  The outcome, however, was discretionary on the part of the judge, and one could argue for alternative orders.  Given that the default option (if no discretionary order was made) was for the entire estate to go to the defendants, and that they had offered to cede 60 per cent of the estate to the plaintiffs, it might have been reasonable for costs to be borne by the estate or for the defendants to have been granted more than $4000.  (Both sides had been represented prior to the actual hearing, so that the defendants almost certainly ended up substantially out of pocket.)

At a broad level, the Courts generally don't like to second-guess the likely intentions of an intestate in respect of who he might wish his estate to go to.  This is the primary reason for the existence rules of succession that apply to intestates' estates. 

Why then should the estates of Indigenous persons be treated differently?  His Honour identified two reasons: their greater reluctance to make wills, and culturally different family relationships.  He also, however, mentioned "the importance of adoption and the willingness to recognise kinship without the benefit of a blood relationship among Aboriginal people", and that "the laws, customs, traditions and practices of the Indigenous community.....might be substantially the same as the understanding of the general Australian community but for an adoption effected under legislation".

In respect of the applicability of Indigenous customs, the deceased had been adopted from infancy into a white Sydney family, apparently lived in Sydney all his life, and only established ties to his birth family (then resident in Sydney) from his late thirties.  In this context, it is difficult to imagine that the cultural practices of his mother's Victorian tribe (even if they could be clearly identified) would have been a major influence on him.  Consequently the appropriateness of Indigenous specific rules to his case seems even more questionable, especially since largely similar issues could arise in respect of an adopted non-Aboriginal child. 

Linda Burney's intervention by way of a letter addressed to the Court raises a multitude of issues.