The Qld Court of Appeal has ruled that a child by aboriginal culture is not a “child” of a deceased person for the purposes of intestacy, or family provision laws.
The appellant administrator was the only surviving parent of the deceased. The deceased had no biological children. The respondent is the biological nephew of the deceased. The evidence was that the respondent’s biological mother and the deceased (who were sisters) made an arrangement that the respondent would be brought up by the deceased as her son. The parties were members of a native title claim group called the Maiawali Karawali People. According to Aboriginal tradition practiced by those people, the relationship between the respondent and the deceased was a permanent relationship which amounted to a mother and son relationship.
The respondent brought an application for 1) declarations that he was entitled to the whole of the estate on intestacy 2) family provision and 3) a declaration of paternity.
The administrator brought a strike out application. The primary judge found that the respondent had at least an arguable case that he was the child of the deceased under Aboriginal tradition.
The Court of Appeal disagreed and the action was struck out.
Per Fraser JA (at ):
“…in the absence of any definition or even any reference in [the Succession] Act to Aboriginal tradition, the well understood terms “child” and “issue” are not open to a construction which comprehends a biological nephew of an intestate on the basis that, in accordance with an Aboriginal tradition, the nephew is treated as a child of the deceased. Assuming in the respondent’s favour that the tradition which he invoked was relevant to succession of property upon intestacy (a topic which was not touched upon in the evidence), the tradition obviously differs radically from the scheme established by the Succession Act. In this case, for example, the effect of the respondent’s construction would be to deprive the appellant (who evidently does not regard herself as bound by the Aboriginal tradition for which the respondent contends) of the right to the whole estate apparently conferred upon her by the Succession Act. That tradition is not recognised by the common law of Australia… Whatever legal rights, if any, the respondent has to succeed on intestacy, depend upon the provisions of the Succession Act. Because the tradition that the respondent invoked is not recognised in the Succession Act, the court has no power to apply it.”