Application of Higgins

These proceedings concern the administration of the estate of Sheree Jane Higgins (“the deceased”), an Indigenous person, and the claim brought by her mother, Emily Higgins, for what is called “a distribution order” under Part 4.4 of the Succession Act 2006 (NSW) (the Act).

There have been three earlier proceedings in New South Wales in which the Court has been called upon to consider an application for a distribution order in respect of an Indigenous intestate. The cases that have dealt with the topic are the Court’s first judgment on an application for a distribution order that concerned an intestate estate of an Aboriginal man who had been adopted by a non-Indigenous couple, and the competing claims made by the intestate’s three Indigenous half-sisters and his two non-Indigenous adoptive half-sisters: Re Estate Wilson, deceased (2017) 93 NSWLR 119; [2017] NSWSC 1 (Lindsay J); a claim made by a “kinship brother” in circumstances where if an order had not been made, the deceased’s estate would have passed to the State, bona vacantia, under Part 4.5 of the Act: The Estate of Mark Edward Tighe (2018) 17 ASTLR 304; [2018] NSWSC 163 (Kunc J); and one which concerned competing claims on the bounty of an Indigenous intestate made by the parents of the deceased within the applicable Indigenous community and competing interpretations of the customary law: Re Estate Jerrard, deceased (2018) 97 NSWLR 1106; [2018] NSWSC 781 (Lindsay J).

The deceased died on 31 March 2020, aged 31 years, leaving movable property located in NSW.

On 27 November 2020, the Plaintiff filed a Summons for Administration, seeking letters of administration and that the administration bond be dispensed with, having established that the deceased died intestate, without a spouse and without issue.

By her Amended Summons filed on 22 June 2022, the Plaintiff, who is the mother of the deceased, made an application under the provisions of Part 4.4 of the Act for a “distribution order” to vary the operation of the general rules (found in Parts 4.2 and 4.3 of the Act) governing the distribution of an intestate estate. In broad terms, she sought an order, pursuant to s 134(1) of the Act, that the entirety of the deceased’s intestate estate be distributed to her, alone, under the laws, customs, traditions, and practices, of the Indigenous community or group to which the Indigenous and intestate deceased belonged or any scheme for the distribution of the estate of an Indigenous person, rather than under the operation of the rules of intestacy.

On 1 November 2022, this Court made an order granting Letters of Administration of the deceased’s intestate estate to the Plaintiff. The Court, when making the order for administration, noted her written undertaking, dated 25 October 2022, to not distribute the estate of the deceased, pending the determination of the application for a distribution order.

The Registry has been unable to complete the issue of Letters of Administration as the Court file, including the orders, has been required in this part of the proceedings. However, the grant should be made when the file is returned to the Senior Deputy Registrar upon the making of orders and the publication of these reasons.

As required by s 133(3) of the Act, the application was made within 12 months of the grant of administration in circumstances where the intestate estate has not been fully distributed.

The Plaintiff submitted, and the evidence confirms, that as the deceased died leaving no spouse, and no issue, her estate, under the operation of s 128 of the Act, would vest in the deceased’s parents, and, if both survive, it will vest in equal shares.

The biological father of the deceased is said to be Stephen Farkas. He has played no part in the proceedings. The proceedings have been listed on several occasions in the Succession List. On no occasion, including on 30 January 2023, has there been an appearance by, or on behalf of, Mr Farkas.

Despite significant efforts, to which reference will shortly be made, he has not been able to be located. There is evidence of the numerous searches that have been made to locate him.

If the Plaintiff’s submissions are accepted, instead of the deceased’s parents being entitled to the whole of the intestate estate in equal shares, the Plaintiff, pursuant to the distribution order, would receive the whole of the deceased’s intestate estate.

Counsel for the Plaintiff over time, filed three sets of written submissions to the Court, the first filed on 30 August 2022, the second filed on 14 October 2022, and the third filed on 25 January 2023.

In a directions hearing, on 30 March 2023, the Court raised with counsel the question whether the real basis of the order sought was a form of order derived from Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. In supplementary written submissions, dated 31 March 2023, counsel submitted:

In view of the detailed written submissions provided by counsel, and upon his application, the matter was then referred to Chambers for consideration on the papers. I am most grateful to Mr D Birch, counsel for the Plaintiff, and those instructing him, for the detailed submissions which I have found extremely helpful.

On 19 April 2023, this Court requested the Plaintiff to provide submissions explaining the jurisdictional basis for the application of a distribution order being made in New South Wales and whether the Court should set aside the order granting administration of the deceased’s estate to the Plaintiff considering that the grant had not yet been issued.

On 24 April 2023, the Court was informed that the Plaintiff intended to provide an additional affidavit addressing the jurisdictional basis for the application for a distribution order to be made in New South Wales. On 11 May 2023, a request for an extension of time until 16 May 2023 to file the additional affidavit was made and granted. When it had not been received, this Court informed the Plaintiff that the matter would be re-listed unless the affidavits were received by 12:00 p.m. on 24 May 2023.

On 24 May 2023, the Plaintiff provided a summary of the Plaintiff’s submissions and informed the Court that additional evidence and submissions would be provided by no later than 15 June 2023. The summary was in the following terms:

On 29 May 2023, the Court received more detailed submissions addressing the jurisdictional basis for the application for a distribution order. I turn to those submissions.

In the case of intestate succession, the law to be applied in relation to movable property is the law of the domicile of the intestate at the time of death. In Nygh’s Conflict of Laws in Australia (9th ed, 2014) at [38.4]-[38.7] the position of movable and immovable property is described in this way:

Also see, Lewis v Balshaw (1935) 54 CLR 188 at 193; [1935] HCA 80; Re Crook (1936) 36 SR (NSW) 186 at 192-3; Re Berchtold; Berchtold v Capron [1923] 1 Ch 192 at 199.

Thus, it was necessary, first, to determine the deceased’s last domicile in order to determine what law is to be applied in relation to the distribution of the assets of her intestate estate.

In Iyengar v Commissioner of Taxation (2011) 85 ATR 924; [2011] AATA 856 at [93]-[96], Senior Member Walsh wrote:

The rule at common law was that the domicile of origin of an illegitimate child depends on the mother: Potinger v Wightman (1817) 36 ER 26; Udny v Udny (1869) LR 1 Sc & Div 441 at 457-8.

In O’Donnell v O’Donnell [2022] NSWSC 1742, Robb J wrote at [138]-[139], [141]:

The Plaintiff submitted, in the present circumstances, noting the Plaintiff was born in Deniliquin, a town in the Riverina region of New South Wales, that the deceased’s domicile of origin would be New South Wales.

Section 8 of the Domicile Act 1979 (NSW) relevantly provides:

The Plaintiff submitted that since birth, the deceased had lived with the Plaintiff in her principal home. Her parents also lived separately. The deceased and the Plaintiff lived in New South Wales until about 2003.

Counsel further submitted that even though, in 2003, the deceased and the Plaintiff moved to Echuca, a town in Victoria, the Court should not find that there was any intention, on the part of the Plaintiff, to change her domicile. He submitted that the Plaintiff moved frequently between various towns in New South Wales and Echuca throughout her life up to and including 2006. He argued that the move to Echuca in 2003 was not any more significant than any of their other decisions to move location.

He also submitted that the move to Echuca in 2003 was one of the most insignificant moves a person could make while still moving between states in Australia, noting that the Plaintiff’s family merely moved from one side of the Murray River to the other and that the Plaintiff continued to attend the same school. He added that the local Aboriginal community comprised members in both Moama and Echuca, which both fall within the traditional Yorta Yorta lands.

Accordingly, by reference to s 8 of the Domicile Act, her domicile would not have changed. In any event, the deceased was 18 on 31 July 2006, meaning that she no longer met the criteria of a “child” in s 8(1) of the Act and therefore s 8(2) of the Act does not apply.

Section 9 of the Domicile Act relevantly provides:

In O’Donnell v O’Donnell, Robb J also wrote, at [163]:

Section 7 of the Domicile Act provides:

Turning to s 8(5) of the Act, the key issue is whether the Plaintiff acquired a domicile of choice. This turns on whether the Plaintiff had the requisite intention to make Echuca, Victoria her “permanent” home. She had suffered severe and permanent brain damage in an accident in 1993 and had been declared to be incapable of managing her affairs. She could not have formed the necessary intention to make Echuca her permanent home because she lacked the capacity to form such intention.

A person whose decision-making ability is impaired cannot acquire a domicile of choice by her, or his, own actions, and instead, retains her, or his, existing domicile for the duration of the impaired capacity: Kertesz v Kertesz [1954] VLR 195 at 197; Hepburn v Skirving (1861) 9 WR 764; FDN [2011] QCAT 325 at [47]; Re NBL [2019] NSWCATGD 5 at [56]. “The rationale is that acquisition and abandonment of a domicile of choice require the exercise of will and a person with impaired capacity may be “unable to exercise any will”: JC [2012] QCAT 609 at [10]; Urquhart v Butterfield (1887) 37 Ch D 357 at 382.

The deceased’s estate was managed by the then Protective Commissioner, and more recently, by the NSW Trustee and Guardian (NSWT&G) until the time of her death.

In the alternative, it was submitted that even if the Court had found that the deceased was not domiciled in New South Wales, Part 4.4 of the Act has displaced the common law position, and, thus, the Plaintiff could still apply for an order under s 134 of the Act as the deceased left movable property in New South Wales, being the fund held by the NSWT&G on behalf of the deceased.

In all the circumstances, I am satisfied that the Court has jurisdiction to deal with the matter.

I have taken what follows from the 16 affidavits that have been filed and read, having been referred to in the written submissions.

The Plaintiff is an Aboriginal woman and a member of the Wiradjuri Yorta-Yorta community, from central New South Wales. After she left school, she lived in Leeton, Wagga Wagga, Deniliquin, and Echuca. She is currently 53 years of age.

The deceased was an Aboriginal woman who became a member of the Indigenous community at Echuca, Victoria.

In late 1987, the Plaintiff was in a brief relationship with Mr Farkas (although she is not sure of the spelling of his name). She became aware that she was pregnant in early December 1987. Mr Farkas had been the only person with whom she had sexual intercourse during the preceding eight months.

The Plaintiff also gave evidence that, on being informed of the pregnancy, Mr Farkas denied paternity and that since then, she has had no, or very limited, contact, with him. Mr Farkas never made any child support payments to the Plaintiff for the benefit of the deceased.

She also gave evidence that the deceased had never had any contact with Mr Farkas, and that she had never asked the Plaintiff about him, except once, when the deceased was about five years old.

On or about 27 December 1993, at the age of five years, the deceased was badly injured in a motor vehicle accident. She suffered injuries including severe, and permanent, brain damage. The intellectual disabilities due to her brain injury resulted in an inability to read and write and she had very poor memory and understanding.

Following the accident there were extensive stays in various hospitals. Then, the Plaintiff, the deceased, and the Plaintiff’s children lived in Leeton. The deceased attended a special school for children with disabilities in Leeton. In about 1997 or 1998, the family moved to Deniliquin for a couple of years. Afterward, in about 2000, the family moved to Moama. The deceased attended Echuca Specialist School during the week and went into respite care on the weekend.

Since the age of 18, she had lived in the Glanville Nursing Home in Echuca, a town in northern Victoria. She remained living there until the date of her death.

In 2003, the deceased received a compensation payment of approximately $3,800,000.

At the time of the deceased's death, all her assets (other than $451.14, money held on trust by the Glanville Nursing Home) were managed by the NSWT&G. After notification of the death of the deceased, the NSWT&G redeemed the various assets held on trust and paid them into its trust account.

The Plaintiff gave evidence that if Mr Farkas had attempted to contact the deceased without her knowledge, she would have expected the deceased to have told her. She also stated that she would have expected the school, or Glanville Nursing Home, where the deceased had been resident, to have contacted her if there had been any approach made by Mr Farkas to contact the deceased: Affidavit, Emily Marlene Higgins, 20 July 2022 at par 29. There had been no such contact by either.

The Plaintiff satisfied the Court that the deceased died intestate. A will was not located in her personal effects and other searches conducted for a will, including making inquiries of local solicitors, the NSWT&G and State Trustees Limited did not result in the production of a will or other document recording the deceased’s testamentary intentions. (It is unlikely that the deceased had a safe custody packet. The Plaintiff gave evidence that the deceased did not have any bank accounts in her own name.)

There was no evidence that any application had been made to the Court by any person, for the making of a will that dealt with the whole, or part, of the property of the deceased under Part 2.2, Division 2 of the Act (a Court authorised will for a person who does not have testamentary capacity).

As already stated, the deceased was never married and had not been in a de facto relationship which had been in existence for a continuous period of 2 years, or at all, or which had resulted in the birth of a child: Affidavit, Janine Carroll, 20 July 2022 at par 11.

It was clear from the evidence that the deceased had no issue: Affidavit, Sheree Jane Higgins, 27 November 2020 at par 15.

The Plaintiff accepted that she could not make a claim for a family provision order. Whilst she may have been a member of the household of which the deceased was a member, she was not a person who was wholly or partly dependent on the deceased, and at that particular time, or at any other time: s 57(1)(e) of the Act. Nor is she a person with whom the deceased was living in a close personal relationship at the time of the deceased's death: s 57(1)(f) of the Act.

In response to the Plaintiff’s application for a grant of letters of administration, which had been filed as an uncontested application, the Principal Registrar of the Court, on 4 December 2020, responded with requisitions including:

From 4 December 2020, searches were conducted to identify, and locate, Mr Farkas, and to alert him to the proceedings. These attempts are described in seven affidavits of the Plaintiff’s solicitor, Mr Harley Moore, affirmed, respectively, on 19 July 2022, on 26 August 2022, on 23 September 2022, on 9 December 2022, on 12 December 2022, on 24 January 2023, and on 25 January 2023.

There is also an affidavit of Ms Katherine Chernov, Mr Moore’s assistant, affirmed 19 August 2022, and an affidavit of Mr Peter Hebbard, solicitor, affirmed on 6 October 2022.

In the affidavit affirmed on 19 July 2022, Mr Moore described the initial attempts made to locate Mr Farkas (including alternate spellings of that name), as follows:

On 11 August 2022, Ms Chernov made a telephone call to each telephone number identified in Mr Cullen’s report. Several of the telephone numbers were not in service, whilst others were answered but did not provide any additional information.

In the affidavit affirmed on 26 August 2022 of Mr Moore, he described the further attempts taken to locate Mr Farkas (including alternate spellings of that name), as follows:

In the affidavit affirmed on 23 September 2022, Mr Moore described the further steps that had been taken to locate Mr Farkas (including alternate spellings of that name), as follows:

On 6 October 2022, Mr Peter Hebbard sent a message to the “Steve Evans” Facebook account describing the orders sought by the Plaintiff. No response was received.

The “Steve Evans” Facebook account included other information which led to further avenues of investigation, none of which have provided further information about the current whereabouts of Mr Farkas.

On 8 November 2022, Mr Moore requested Mr Cullen, the private investigator) to provide a further report.

A report from Mr Sam Norman, an Investigations Analyst at Lyonswood Investigations and Forensics, was received on 12 December 2022. Mr Norman conducted searches of the electoral roll, the NSW tenancy records database, national public record databases, ASIC’s bankruptcy register, property databases, a criminal/civil court attendance records database, Australian court judgment databases, the Ryerson Index, and the White Pages. He also conducted a general internet search. The report identified 10 addresses of particular interest.

Against the possibility that Mr Farkas may have changed his name to Steve Evans, additional searches of public databases were conducted for the name “Steve Evans”. Due to the prevalence of the name “Steve Evans” and the information available, the searches were focussed primarily on persons in NSW and QLD and were narrowed down, where possible, to the known year of his birth (1964). This resulted in 15 addresses of interest, associated with a Steve (or Steven or Stephen) Evans: Affidavit, Harley Russell Moore, 24 January 2023 at pars 3-4. Of these, Mr Moore endeavoured to contact 12 of the persons as he believed that the other three, were not about Mr Farkas’s age. No relevant responses have been received.

In his report, Mr Norman concluded:

On 23 January 2023, Mr Moore conducted an internet search of EJ Britten Surveyor and Associates Pty Ltd, the company which “Steve Evans” had worked at as an assistant surveyor from 11 March 2003 to 26 April 2010. He also carried out an ABN lookup search but found that the ABN of EJ Britten Surveyor and Associates Pty Ltd had been cancelled, along with its business name. He conducted ASIC searches which showed that the company was deregistered.

Attached to the written submissions dated 25 January 2023, provided by counsel for the Plaintiff, is a summary of all the attempts that have been made to contact, by post, to the different addresses which have been identified as the possible address of Mr Farkas (including under the name Steven Evans).

I am satisfied that the legal representatives of the Plaintiff, in the circumstances, have done all that could be done, to locate Mr Farkas. Those solicitors have carried out many necessary, and proper, investigations. No reasonable further enquiries could be made which would improve the state of the evidence: West v Weston (1998) 44 NSWLR 657; [1998] NSWSC 419. It appears that Mr Farkas does not wish to be located, or to involve himself in these proceedings.

In ordinary litigation, the Plaintiff must decide who to name as a defendant. In this case, no person has been named in the Plaintiff’s amended Summons dated 17 May 2022.

In considering this aspect of the matter, I remember the following passage in Tighe at [18] (Kunc J):

Because of the nature of the application, I have also considered his Honour’s description of “interested persons” at [19]:

I have considered Mr Farkas, whose interests will be adversely affected, and whether there are means to enable him to be represented. As already stated, many attempts have been made, on behalf of the Plaintiff, to bring the proceedings to his attention. In addition, there is no evidence that he has ever played any part in the relatively short life of the deceased. As stated, he is the only other person entitled under the operation of the rules of intestacy.

Having considered the evidence, I am also satisfied that there are no other potential claimants under the Act who are eligible to make a family provision claim under Chapter 3 of the Act, or under the relevant Customary Law. Indeed, there do not appear to be any other “claimant[s] on the bounty of [the deceased] who could establish, within the setting of an Indigenous community, a strong moral claim based on an active personal relationship of mutual care over a substantial period”: Re Estate Jerrard, deceased at [5] (Lindsay J).

There is no evidence of any other person who could be regarded as an interested person.

As in The Estate of Alan Bruce Beeby [2020] NSWSC 1512 at [55]-[62], I am satisfied that there is no need for a contradictor to be named, or further attempts to serve persons, mainly because the evidence, to which I shall refer, appears to be all one way. Indeed, there are no countervailing factors to dealing with the matter based on the evidence that has been filed.

I summarise counsel’s other submissions below:

In the alternative to the making of an order under Part 4.4 of the Act, counsel for the Plaintiff submitted that the Court should grant a Benjamin order: Re Benjamin; Application of Harnett and Cutts [2016] NSWSC 427; Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 at [23].

However, counsel for the Plaintiff emphasised that the Plaintiff’s preferred remedy is the granting of an order under s 134 of the Act. I have dealt with the matter on this basis.

In the case of a person who dies and either does not leave a will or leaves a will but does not dispose effectively by will of all or part of her, or his, property, the intestacy provisions of the Act operate automatically in relation to the distribution of her, or his, estate.

Chapter 4 was inserted into the Act by the Succession Amendment (Intestacy) Act 2009 (NSW), which was assented to on 9 June 2009, and which came into operation on 1 March 2010. It applies to persons dying intestate on, or after, that date: see Sch 1, Pt 4, cl 13 of the Act.

The long title to that Act stated that it was “to amend the Succession Act 2006 and the Probate and Administration Act 1898, to revise and re-state the rules for distribution on intestacy; and for other purposes”.

Section 101 of the Act defines “intestate estate”, relevantly, to mean “all the property left by the intestate”.

Section 101 also defines “Indigenous person” as being:

The definition appears to be what might be regarded as a standard one to identify an “Indigenous person”, being a tri-partite, cumulative, test, incorporating genetic, or biological, descent, self-identification, and community acceptance or recognition: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; [1992] HCA 23 at [83] (Brennan J).

The weight to be given to each, or any of these factors, is a matter for the Court and may vary from case to case. For example, if self-identification, and community acceptance, or recognition, are present, those matters may logically be probative of genetic, or biological, descent: Gibbs v Capewell (1995) 54 FCR 503 at 510; [1995] FCA 25 (Drummond J); Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113 at 120 (Merkel J); McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223 at [108] (Besanko J).

I shall next deal with the relevant sections of Part 4.4 of the Act.

Section 133 of the Act is in the following terms:

By operation of section 133(1), an application for a distribution order can be made by the personal representative of an Indigenous intestate (that is, an administrator or, in the case of a partial intestacy, an executor of the deceased’s estate), or by a person “claiming to be entitled” to share in the intestate estate “under the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged”.

This section is far more difficult than it might appear to be. That is so particularly regarding the reference to “laws, customs, traditions and practices of the community or group”, which is not defined, and which may not be regarded as standard, even within the community or group to which the intestate belonged.

There are likely to be different formulations of such “laws, customs, traditions and practices”. This is because Indigenous persons live a wide diversity of lifestyles, with the result that there are many different types of Indigenous communities in Australia, including metropolitan, rural, urban, traditional, and historical, communities, and groups which have gathered from different regions. Also, they are, more often than not, unwritten.

Furthermore, “[t]he Aboriginal kinship system may include persons who are not blood relations at all (as distinct from classificatory relations), and yet there may be important obligations and rights existing between the deceased and such a person”: Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at [337], which are values, rather than rules, based. The primacy of relationships provides an example.

Relevantly, in Re Estate Jerrard, Lindsay J noted at [20]-[21]:

In Re Estate Wilson, Lindsay J wrote that the phrase “laws, customs, traditions and practices of the community or group” was “practically equivalent” to “customary law”. His Honour wrote at [15]-[16], [134] and [139]-[143]:

What his Honour has written seems to accord with Bryan A Garner, Black’s Law Dictionary (11th ed, 2014, Thomson Reuters) definition of “customary law” as:

The evidence required to establish the “laws, customs, traditions and practices” has also been considered in Tighe. In that case, Kunc J wrote at [30]-[36]:

Considering the two judgments, it may be that what is being stressed, albeit somewhat differently, is how “the laws, customs traditions and practices of the Indigenous community or group to which the deceased belonged” are proved in the particular case, and to clarify that the evidence could be given by the person, or persons, within that Indigenous community or group, who has, or have, the necessary understanding, and experience, to enable him, or her, to inform the Court about those matters. In this way, differences in the principles of customary law, which are unable to be harmonised into a single framework, may be catered for by the consideration of the localised indigenous group to which the deceased belonged.

Section 134 deals with distribution orders. It provides:

(There is no property in respect of which an order under s 134(2) is being sought as there has been no distribution of any part of the estate. However, it is important to note the reference therein to distributions made and used for the maintenance, education, or advancement in life of a person who was totally or partially dependent on the intestate immediately before the intestate's death.)

Under this section, the Court must, first, have regard to:

In Tighe at [25], Kunc J noted the “scheme for distribution” under s 133(2) of the Act should be set out with particularity, attached to the Summons, and identified as such. It should specify the Indigenous community or group whose laws, customs, traditions, and practices are being relied upon.

The critical feature of a “scheme for distribution” is that it embodies a proposal for distribution of the whole of the intestate estate, a proposal for a share of part of that estate. The requirement for a “scheme for distribution” is one of substance, not form. Functionally, a “scheme for distribution” must be a proposal for distribution of the whole of an estate and facilitate administration of the estate: Re Estate Wilson at [160]-[163]; Re Estate Jerrard at [50].

Thus, for the purposes of Part 4.4 of the Act, a person’s proposed “scheme for distribution” which provides for the whole of the estate of the deceased to be distributed in a particular way should be set out in an originating process: Re Estate Jerrard at [50].

Then, having had regard to those matters, the Court formulates, if it is able to, the terms of the distribution order, which it considers ought to be made, which, in all the circumstances, is just and equitable. In this regard, the Court’s duty is to give such judgment, or make such orders as the nature of the case may require: Civil Procedure Act 2005 (NSW), s 90; Uniform Civil Procedure Rules 2005 (NSW), rule 36.1. Its powers include a power to make orders on terms: Civil Procedure Act, s 86.

In Re Estate Jerrard, Lindsay J noted at [22]:

If a distribution order which is just and equitable is unable to be formulated, the Court may not make an order.

In Bailey v Polumbo [2020] NSWSC 1209, I wrote, at [125]-[133] in connection with the phrase:

It is also relevant to refer to what was said in Bevan v Bevan (2013) 279 FLR 1; [2013] FamCAFC 116 at [84]:

It seems to me that whether the distribution order is “just and equitable” may be determined by considering whether the applicant’s rights are, or should be, different from those that exist under the operation of the rules of intestacy. Whilst I agree with Lindsay J in Re Estate Wilson, at [146], that this does not mean that the starting point for analysis is a presumption that the rules of intestacy apply, one cannot forget that the application for a distribution order is by “a person claiming to be entitled to share in an intestate estate”. Therefore, the share to which the applicant is entitled under the operation of the rules of intestacy, must have relevance to the determination of the question whether a distribution order should be made, and whether the distribution order that is sought is just and equitable.

In this way, s 134 of the Act requires a consideration of the question whether the rights that exist under the operation of the rules of intestacy should be altered by making a different distribution order based upon the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged.

Section 134(1) of the Act provides that the Court retains a residual discretion to decline to make a distribution order. If it declines to make an order, the rights that exist under the operation of the rules of intestacy are not altered.

Next, s 135 of the Act provides:

I turn now to answer the questions which arise from Part 4.4.

The first question is: was the deceased an “Indigenous person” as defined by s 101 of the Act?

The Plaintiff has given evidence about this matter. There is evidence of the deceased’s descent, her identifying as an Aboriginal person, and the evidence of Muriel Day, and Vicki Mitchell, elders of the Aboriginal community in Echuca, who have stated that each of the deceased and the Plaintiff was regarded as a member of the Aboriginal community in Echuca. In addition, the Plaintiff has given evidence of the deceased’s attendance at the Njernda Aboriginal Co-Operative for social contact with other members of the Aboriginal community in Echuca.

It seems clear that the deceased was an Indigenous person.

The time limitation imposed by s 133(3) of the Act is satisfied in the present case given that a grant of administration has been made, albeit has not been issued by the Court.

The next question is whether reasonable notice of the proceedings has been given to all persons who might reasonably be supposed to have an interest in the determination of the proceedings. I have set out the voluminous evidence going to this topic.

It seems clear that reasonable notice has been attempted to be given to the only other person whose interests are, or might be, affected by the making of a distribution order, namely Mr Farkas. There are no additional reasonable steps that the Plaintiff could take.

Then, because of the injuries that the deceased suffered, there is no evidence of any acts or omissions, statements, or conduct, on the part of the deceased bearing upon her testamentary intentions.

Section 134(2) of the Act does not apply in the present case as no property had been distributed before the date of the Plaintiff’s application.

Evidence of the Indigenous community or group to which the deceased belonged is given by each of the elders, Muriel Day, and Vicki Mitchell, who describes the relevant Aboriginal community as “the Aboriginal community in Echuca”. Both assert that according to their understanding of the culture and traditions of the Aboriginal community in Echuca, most members in that community do not make a formal will: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 9; Affidavit, Muriel Day, 23 November 2021 at par 5.

Vicki Mitchell has also written that when a member of the Aboriginal community in Echuca dies, the ordinary practice would be for her, or his, immediate family to determine how the member’s assets or belongings would be distributed: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 10.

To put it simply, the deceased’s assets and belongings would be distributed amongst the family with whom the member lived, or with whom she, or he, had close contact: Affidavit, Muriel Day, 23 November 2021 at par 6. Furthermore, Vicki Mitchell gave evidence that pursuant to the usual customs or traditions of the Aboriginal community in Echuca, the closest member of the family would ordinarily receive all the assets of the deceased: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 12. Indigenous customary law places greater emphasis on communal obligations.

Both Vicki Mitchell and Muriel Day gave evidence that the Plaintiff is the closest member of the deceased’s family. They deposed that she had always provided constant care and support to the deceased, and even once the deceased moved into nursing accommodation, the Plaintiff visited her regularly and provided additional care and comfort: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 14; Affidavit, Muriel Day, 23 November 2021 at par 19.

In my view, what is of particular relevance, although not determinative, is that both Vicki Mitchell and Muriel Day state that they are of the belief that, according to the laws, customs, traditions and practices of the Indigenous community or group to which the deceased belonged, being the Aboriginal community in Echuca, the Plaintiff would be entitled to all the deceased’s assets and belongings: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 14; Affidavit, Muriel Day, 23 November 2021 at par 19.

Pursuant to the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged, being the Aboriginal community in Echuca, Mr Farkas, as the deceased’s biological father, would not be entitled to any of the deceased’s assets and belongings, as he was neither a member of the Aboriginal community in Echuca, nor did he have any contact with the deceased: Affidavit, Muriel Day, 23 November 2021 at par 19.

There are, at least, four additional facts of particular significance that indicate he ought to be excluded from benefiting from the deceased’s estate. First, he denied paternity and had no contact with the deceased during her life. Secondly, after the deceased’s accident in 1993, the Plaintiff was the one who travelled to Melbourne hospital and was by her side every day for a total of two months and continued to visit her every day when the Plaintiff was in hospital in Wagga Wagga. Thirdly, despite having two young children of her own, the Plaintiff took on a significant burden in raising the deceased at home, where she showered and dressed the deceased, cooked all her meals, assisted her with eating and took her to several rehabilitation programs. Fourthly, after the deceased needed full time care and moved into the Glanville Nursing Home, the Plaintiff visited the deceased three to four times a week.

As, effectively the only parent of the deceased with whom the deceased had any involvement, I am satisfied that the Plaintiff is “a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged”.

In the present case, the “scheme of distribution” is set out in the Amended Summons (in terms similar to the “scheme” noted in Tighe at [50]):

A distribution order should be made modifying the operation of the rules of intestacy so as to accommodate the Plaintiff’s claim on the deceased’s estate and her reasonable expectations of provision from that estate. I am also satisfied that the scheme for distribution is in accordance with the laws, customs, traditions, and practices of the Aboriginal community in Echuca, and that the Plaintiff, as her closest family, ought to be favoured in the distribution of the deceased’s estate.

The nature and strength of the personal bonds between the deceased and the Plaintiff, also satisfy me that it would be just and equitable for the Court to make a distribution order in favour of the Plaintiff in the terms that she seeks.

Accordingly, I make the following orders: