Federal Court of Australia

Fagan on behalf of the Wadawurrung Native Title Claim v State of Victoria [2025] FCA 1011

ORDERS

THE COURT ORDERS THAT:

1.    The separate question be answered as follows:

Question 1

Was each of the following persons biologically descended from John Robinson:

(i)     Nicholas Couzens;

Answer: Yes

(ii)     John Couzens;

Answer: Yes

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LONGBOTTOM J:

introduction

1    The applicant, on behalf of the Wadawurrung peoples, seeks a determination of native title over coastal land and waters in southern central Victoria. The area covered by the claim extends from Port Phillip Bay in the east, to Fairhaven in the west, taking in Geelong and Torquay; extends north to Ben Major Nature Conservation Reserve near Waterloo; and south and south-east to the mouth of the Werribee River in Port Phillip Bay, taking in Ballarat and Bacchus Marsh.

2    The Wadawurrung peoples are described in the native title determination application as the persons who:

(a)    are biological descendants of apical ancestor, John Robinson (also known as John Robertson); and

(b)    identify as, and are accepted as, a Wadawurrung person in accordance with Wadawurrung traditional laws and customs.

3    A dispute has arisen between the applicant and the sixty-fifth and sixty-sixth respondents, Mr John Clarke and Dr Vicki Couzens, as to membership of the Wadawurrung people. Mr Clarke and Dr Couzens claim to be Wadawurrung through biological descent from William Robinson (also known as William Robertson), the son of John Robinson. The applicant does not accept that claim or that Mr Clarke and Dr Couzens meet the other requirements for membership of the Wadawurrung people as stated at (b) above. To date, attempts at mediation of that dispute have failed.

4    On 22 April 2025, the Court ordered a separate question for the purposes of deciding the biological descent aspect of the dispute. The separate question concerns whether ancestors of Mr Clarke and Dr Couzens (John Couzens and Nicholas Couzens) are the biological descendants of John Robinson through his son William Robinson (also known as William Robertson). The hearing of the separate question took place over two days in June and July 2025. The participating parties were the applicant, the State of Victoria, Mr Clarke and Dr Couzens.

5    On 21 July 2025, for the reasons that follow, I made the following findings with respect to the separate question:

Was each of the following persons biologically descended from John Robinson:

(i)     Nicholas Couzens;

Answer:    Yes

(ii)     John Couzens;

Answer:    Yes

evidentiary issues

6    As with other proceedings of this type, determining the answers to the separate question requires a painstaking reconstruction of historical documents, all framed within a culture which operates on oral tradition, at a time when many knowledgeable elders have sadly passed away: cf, Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [12] (Mortimer J, as her Honour then was). A particular feature of this case is that, for reasons emerging from the evidence as outlined below, the witnesses on both sides of the dispute grew up with incomplete understandings of their family history and they, together with their immediate forebears, have had to piece together aspects of their oral history with documentary research.

7    Mr Clarke and Dr Couzens bear the onus of proof with respect to the separate question because they are the parties asserting that John and Nicholas Couzens are the biological descendants of John Robinson: Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279 at [49] (Murphy J). The standard of proof is the civil standard, on the balance of probabilities: Evidence Act 1995 (Cth), s 140(1). The strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what, and the circumstances in which, it is sought to be proved: Evidence Act, s 140(2); see also Briggs at [51], citing Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at [139] (Branson J).

8    In approaching its task, the Court must first be satisfied that there is evidence of some fact the existence of which is sufficient to justify the drawing of an inference: Briggs at [63]. The fact in question must be one which positively suggests, that is to say, provides a reason special to the case under consideration, for thinking it likely that a specific event happened or a specific state of affairs existed: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 (Kitto J), cited with approval by Gageler J in Henderson v Queensland [2014] HCA 52; (2014) 255 CLR 1 at [89]. Where an inference is reasonably available on the evidence, it ought not be discounted because of conjecture about competing explanations on the evidence, unless there is evidence of facts supporting that contrary explanation: Briggs at [63].

9    While determining the answers to the separate question requires the Court to reach a view about what, on the evidence before it, are more likely than not to be the facts, it does not follow that the Court decides what the “truth” is in any absolute sense. As Mortimer J explained in Drill at [13]:

… The Court is not in that sense the arbiter of history. The Court decides whether the party who must prove the necessary facts has shown the facts it contends for are more likely than not to have existed. In circumstances which involve the level of historical reconstruction … that is not only all that is required; it is all that can reasonably be expected. This exercise is carried out on the basis of the evidence adduced, and inferences which can reasonably be drawn from that evidence. The Court must assess what, reasonably and rationally, can be made of the evidence before it. It does so from a more objective perspective than that brought by the parties, and for that reason, it may well see some evidence as persuasive although one party does not. Conversely, it may see other evidence as unpersuasive, although a party, its expert or the claim group members find that evidence persuasive. Even where the task is challenging, and the evidence pulls in different directions (as it does in many of the factual issues to be resolved in these separate questions), the Court’s function is to make a decision, and to decide if the party with the onus of proof has discharged it.

(Emphasis added)

10    The evidence called by the participating parties comprised a statement of agreed facts and issues dated 23 May 2025; documents (mainly historical records, but also a video recording of deceased relatives of Mr Clarke and Dr Couzens); and lay witness evidence. No participating party called expert evidence. The following principles are of note with respect to that evidence.

11    First, the agreed facts are admitted as evidence, but whether they are to be accepted as true remains a matter for the Court: Evidence Act, s 191; see also Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; (2022) 293 FCR 330 at [34] (O’Bryan J, with whom Besanko and Lee JJ agreed).

12    Second, both the witness and documentary evidence includes hearsay admitted without objection. Such hearsay evidence can be used “as proof to the extent of whatever persuasive power it may have”: Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219 (Samuels JA), as cited with approval in Roberts-Smith v Fairfax Media Publications Pty Ltd (Appeal) [2025] FCAFC 67 at [876] (Perram, Katzmann and Kennett JJ); see also the Evidence Act, s 59 and Federal Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74; (2011) 193 FCR 149 at [26] (Ryan, Jessup and Perram JJ). The weight to be attributed to that evidence will “turn on the hearsay in question and the merits of the matter will be driven by an assessment of its reliability”: cf, SNF at [27].

13    Third, care must be taken when relying upon historical records in native title cases: Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland & Ors (No 2) [2014] FCA 528; (2014) 317 ALR 432 at [299] (Mortimer J). Oral accounts may fill the “silences” in historical records or explain, give context to, qualify or rebut them: ibid, citing Daniel v Western Australia [2003] FCA 666 at [149] (RD Nicholson J). But equally, such records may be informed by historical preconceptions with respect to the First Nations people to whom they refer: Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 at [351] (Merkel J).

14    As such, Mortimer J cautioned in Dempsey at [299] that:

Courts must … consider whether “the historical record or account of observers at the time, whether trained or untrained, is not invalidated by a particular preconception, bias or prejudice of the author”: Yarmirr at [351]. For example, a former judge of this court, writing extra-judicially, has observed that certain types of genealogical records may be unreliable, such as those kept by missionaries whose observations are framed by their own individual morality. He goes on to warn that:

Courts must be wary of “text positivism”, the notion that, if a written record is constructed as accurately as possible, the author’s role dissolves into that of an honest broker, passing on the substance of things with only the most trivial of transaction costs.

(Gray, Peter R A, “Saying It Like It Is: Oral Traditions, Legal Systems and Records” (1998) 26 Archives and Manuscripts 248, p 259.)

15    Where a general historical record is relied upon as evidence disproving a version of ancestry based upon oral history, the Court is to exercise care particularly if the oral account has some contemporaneous corroboration: Dempsey at [300], citing Shaw v Wolf (1998) 83 FCR 113 at 130-1 (Merkel J).

evidence

16    The evidence spans over five generations. There are agreed facts with respect to the named Wadawurrung apical ancestor, John Robinson (also known as John Robertson). The evidence with respect to the intervening generations comprises agreed facts, documents and oral history. Those giving evidence at the hearing of the separate question are from contemporary generations on both sides of the dispute – Ernest “Rhys” Kinsey on behalf of the applicant and Mr Clarke and Dr Couzens on their own behalf, together with Mr Trevor Craig Edwards. Save with respect to Mr Edwards, the testimony of those witnesses is supplemented by agreed facts.

Agreed Facts

17    In dealing with the evidence, it is convenient to begin with the agreed facts. That is because they helpfully narrow the issues by dealing with the antecedents of the persons relevant to the separate question, including the persons it is accepted are and are not the parents of John and Nicholas Couzens. Set out below is a summary, rather than extracts, given that there is a degree of repetition amongst the agreed facts. I have not included an overview of the agreed facts for the witnesses because those agreed facts are confined to their antecedents and, to a large extent, overlap with the evidence given by the individuals concerned. Where an aspect of a witness’ life history, such as the place where they were born, was omitted from their oral evidence but is addressed in the agreed facts, I have included that information in the overview of the witness’ testimony.

18    The agreed facts are, in a large part, informed by the documents tendered by the participating parties. I am satisfied that they are to be accepted as true. Those underlying documents include historical records relating to Framlingham Station (west of the Wadawurrung claim area) then under the control of the Board for the Protection of Aborigines and its Secretary, the Reverend F. A. Hagenauer.

19    I pause to observe that the historical records are replete with offensive descriptions of the First Nations people to whom they refer. It is, regrettably, necessary to set out some of those descriptions in these reasons. That is because they inform the participating parties’ submissions as to whether the person referred to in the historical material is William Robinson, the son of John Robinson. I have endeavoured to do so only when necessary and apologise for any hurt or distress this may cause.

First Generation

John Robinson

20    John Robinson was born around 1846 in Terrinallum, Victoria. His father was John Robertson (a white man) and mother was Queen Mary (an Aboriginal woman). John Robinson had two partners. First, Esther Blazely (a white woman) whom he married on 23 December 1867. Their child was William Robinson. Second, Margaret Robinson, whom he entered a common law marriage in around 1893. Their children were Mary Edith, Victoria Alice, Valentine Margaret, Mabel Violet, Hector Norman, Ellen Rose and Thomas Joseph Russell. John Robinson died on 16 April 1919 in Warrnambool.

Second Generation

William Robinson

21    William Robinson was born on 16 March 1870 in Skipton, Victoria. On 7 September 1895, he married Mary Stewart, with whom he had Esther (born on 21 June 1896) and Percival (born on 8 November 1897). Mary Stewart died on 14 April 1898. On 4 August 1904, William Robinson was sentenced to prison for assaulting Effie Alberts (who was under the age of consent) at Framlingham.

Harriet Couzens

22    Harriet Couzens (nee Draper and/or Blair) was born around 1857. On 21 March 1871, she married James Couzens at Framlingham. They had one child, Sarah Ann, who was born around 1880. James Couzens died on 16 July 1887. On 31 March 1909, Harriet Couzens married John Wyselaskie in Warrnambool. Harriet Couzens died on 27 February 1928 in Warrnambool.

23    At times, from January 1892 to May 1892, the Board reported that Harriet Couzens was living in Framlingham “like married people” with a young “half-caste” man named “William Robertson” or “Willie Robertson”, who was the “son of a halfcaste man and white mother residing on their farm near Ballarat.”

Third Generation

John Couzens

24    John Couzens was born on 8 January 1893 at Framlingham. His mother was Harriet Couzens. Neither James Couzens nor John Wyselaskie was his biological father. On 14 May 1921, John Couzens married Bella Rawlings, with whom he had Oswald and Audrey Olive. He died on 7 February 1975 in Warrnambool.

Nicholas Couzens

25    Nicholas Couzens was born in February 1902 at Framlingham. His mother was Harriet Couzens. Neither James Couzens nor John Wyselaskie was his biological father. In February 1902, the Board reported of the birth of Nicholas Couzens that, “There was one illegitimate birth by an aboriginal widow, named Mrs Cousins … the father of the child being a half-caste named Wm. Robinson”.

26    On 11 December 1922, Nicholas Couzens married Georgina Winter at “the home of Miss Robinson” in Warrnambool. His children with Georgina were Gordon Leslie, Stanley Winter, Kathleen Gwendoline, Zelda Mavis, Keith Thomas, Kenneth Ivan, Hansen Mervyn, Gratten Douglas and Noel Kenneth. Nicholas Couzens died on 5 September 1962 in Warrnambool.

Agreed Issue

27    The participating parties identify the issue for resolution arising from the agreed facts to be:

Was William Robinson/Robertson (being the son of John Robinson/Robertson, born 16 March 1870 in Skipton):

(a)    the same man, or one of the men, referred to by the Board … as “William Robinson” or “Willie Robertson” or “Young Robertson” who was reported to be living “like married people” with Harriet Couzens?

(b)    the biological father of John Couzens?

(c)    the biological father of Nicholas Couzens?

(agreed issue)

Lay witnesses

28    The witnesses gave oral evidence at the hearing of the separate question. With the exception of Mr Edwards, whose evidence was confined to the tender of a video recording, all were cross-examined. Insofar as it concerns Mr Kinsey, that cross-examination explored inconsistencies between his oral testimony and that contained in an affidavit Mr Kinsey swore that is annexed to the Wadawurrung native title determination application. As these reasons disclose, it is not necessary to resolve those inconsistencies for the purposes of deciding the answers to the separate question. And while in these reasons I make findings accepting some evidence and argument, and rejecting others, I accept that all concerned have done their best to assist the Court in its difficult task.

Mr Clarke and Dr Couzens’ witnesses

Vicki Couzens

29    Vicki Couzens was born on 15 January 1960 in Warrnambool. She is the biological descendant of Nicholas Couzens through her father, Kenneth “Ivan” Couzens. Nicholas Couzens was alive when Dr Couzens was born; they lived together in a house in South Warrnambool. Nicholas Couzens died in 1962. Dr Couzens has memories of him smiling at her in the kitchen of that house where the “sun shone on [his] gold tooth”.

30    Growing up, Ivan Couzens spoke to Dr Couzens of being related to James Couzens. James Couzens was married to Nicholas Couzens’ mother, Harriet Couzens. It was her understanding growing up that James Couzens was the father of Nicholas Couzens. Dr Clarke recalls being told by her father that James Couzens was a member of the first Aboriginal cricket team that went to England in 1867. She says that this “oral history of being related to … Great-grandfather James … and therefore the cricket team” was, she says, a “very special story that was … part of our family oral history”.

31    Dr Couzens knew Mary Kinsey (the mother of Rhys) because Dr Clarke went to high school with her daughter in Geelong. Dr Clarke recalls that in about the mid-1980s, Mary Kinsey told her about records she found while researching her own family history indicating that William Robinson was the father of Nicholas Couzens. This was the first time that Dr Couzens had heard of this connection.

32    Dr Couzens recalls that around this time, Mary Kinsey handwrote a chronological table of “the different documents and different investigations or points of interest” and showed her some of the research that she had done. Dr Couzens thinks that she may have copies of that material in storage but has not been able to get there to find them.

33    Dr Couzens discussed William Robinson with her father. Ivan Couzens told her, “Well you know we are related to Robinsons” and recounted that he used to go to the Robinson’s house in Henna Street, Warrnambool. He also told Dr Couzens that Nicholas and Georgina Couzens were “married at Mrs Robinson’s [house]”, which she later confirmed through documentary research. Ivan Couzens also recalled a lady named, Robinson, visiting the family home when he was a child and young man. Dr Couzens maintained under cross-examination that her understanding of “our relationship to [the] Robinson’s … predates” this discussion with her father. She gave evidence that “we knew we were related to [the] Robinson’s”, but “I was not very clear how”, “it was never articulated to me”.

34    Dr Couzens “had to sit … for a while” with the information about a potential connection between Harriet Couzens and William Robinson. She also gave evidence that some people in her family group were not ready to accept that connection, but was not prepared to speculate as to the reasons why.

John Clarke

35    John Clarke was born on 7 June 1974 in Warrnambool. He is a biological descendant of John Couzens through his mother’s mother, Audrey Olive Couzens. John Couzens was alive when John Clarke was born, but died shortly afterwards on 7 February 1975. Audrey Couzens died before Mr Clarke was born. Mr Clarke’s mother, Elizabeth “Libby” Clarke is alive, but was unable to give evidence because her age and health prevented her from travelling from Warrnambool, where she lives.

36    Mr Clarke gave evidence that at the time of his birth, his mother lived in a house in Warrnambool with John Couzens. Audrey Couzens had also lived with them prior to her death in 1973. Growing up, his mother would speak regularly to Mr Clarke about Harriet Couzens, “Granny Harriet”, as she called him. But Libby Clarke did not tell Mr Clarke about John Couzens’ father. Libby Clarke did speak to Mr Clarke about James Couzens, Harriet Couzens’ husband. However, John Clarke gave evidence that “they were well aware that he died prior to Grandfather John Couzens being born”.

37    Mr Clarke was candid that his family does not have an oral history of descent from John Robinson. In 1989, Libby Clarke began researching her family tree. Mr Clarke recalls that she did so in collaboration with Zelda Couzens (the daughter of Nicholas Couzens) and Mary Kinsey (the mother of Rhys Kinsey). While that family history research was informed by records, Mr Clarke gave evidence that Libby Clarke also spoke “to her elders … trying to get an understanding and a context in which … relationships may have been – that weren’t captured in [the] records”.

38    Mr Clarke does not recall his mother ever speaking to him about William Robinson before she commenced her research. Libby Clarke did, however, tell Mr Clarke that she “vividly remembers” visiting the house of Valentine Dalton (the daughter of John Robinson) in Henna Street, Warrnambool, as a child and playing in the front yard whilst John Couzens was inside having a cup of tea. Libby Clarke had no specific recollection as to why they were visiting Valentine Robinson.

Trevor Craig Edwards

39    Trevor “Craig” Edwards was born on 23 November 1964. He is a biological descendant of Nicholas Couzens through his father’s mother, Kathleen Gwendoline Couzens. Kathleen Couzens died in 2006. Craig Edwards’ father, Trevor William Edwards, died in 2017.

40    Mr Clarke and Dr Couzens admitted into evidence, through Craig Edwards, a video recording of a discussion between Trevor Edwards, his wife (Eileen Ryan), Kathleen Couzens and her sister, Zelda Mavis Couzens. Zelda Couzens died in 2007. Mr Edwards gave evidence that the video recording was filmed in his former home in Geelong. The “time stamp” on the video recording is “10 July 2002”.

41    The video recording captures the following exchange:

TREVOR EDWARDS:    … Pop and um, and you say his father was a Robinson – but I’m trying to get that Robinson

ZELDA COUZENS:    He was a shearer with Wyselaskie, best mates

TREVOR EDWARDS:    They were best mates? ---- That’s what best mates do, don’t they, they shear

ZELDA COUZENS:    That’s how he came to meet up with Harriet

TREVOR EDWARDS:    yeah

ZELDA COUZENS:    He wanted to – he got Harriet in trouble, he wanted to marry and she wouldn’t move. So it ended up that Wyselaskie married her.

[BREAK IN RECORDING]

    There’s no such person as she’s looking for – because the same person is, was the same people who fathered all the other kids up in [inaudible].

TREVOR EDWARDS:    Same father?

ZELDA COUZENS:    Yeah

42    There is then a discussion about the mother of Mary Kinsey (Ellen Rose King (nee Robinson)):

TREVOR EDWARDS:    So what’s – mmm ok, so what’s, I’m just trying to get her connection, um, Mary, Mary’s mother, Mary Kinsey’s mother is, she’s on, that’s on the Aboriginal side?

ZELDA COUZENS:    Yes, it’s Pop’s Auntie.

TREVOR EDWARDS:    That’s Pop’s Auntie, Mary Kinsey’s mother?

ZELDA COUZENS:    Mary and ah, that’s Mary’s mother that died not long ago, she lived in …

TREVOR EDWARDS:    That’s right …

ZELDA COUZENS:    … Yeah, in Mortlake

TREVOR EDWARDS:    Yeah

ZELDA COUZENS:    Ah, they, she was Pop’s Auntie – and Mary and Pop

TREVOR EDWARDS:    Is that blood Auntie?

ZELDA COUZENS:    Yeah

TREVOR EDWARDS:    Yeah

ZELDA COUZENS:    According to the Robinsons

TREVOR EDWARDS:    Yeah

ZELDA COUZENS:    Um, so Mary and Pop are first cousins, as far as I know …

Applicant witness

Ernest “Rhys” Kinsey

43    Ernest “Rhys” Kinsey was born on 10 December 1959 in Geelong. He is a biological descendant of John Robinson through his mother’s mother, Ellen “Rose” King (nee Robinson). Rose King was born around 1901 and died in 1999. His mother, Mary Margaret Kinsey (nee King) was born in 1932 and died in 2019.

44    Rhys Kinsey gave evidence that his maternal grandmother spent a lot of time in his house growing up. Mr Kinsey explained that his “mother got pregnant 11 times in 13 years” and his “grandmother came down every year to help my dad raise the children while my mother was bearing children”.

45    Mr Kinsey gave evidence that his “grandmother suffered a very traumatic life” particularly as a young woman. Mr Kinsey gave evidence that Rose King delayed telling her daughters that they were Aboriginal and that he believes that this is the reason why. Mr Kinsey was first told of his First Nations heritage in about 1981, when he was 21. It was at that time that Mary Kinsey told her son of the family connection to John Robinson. Rose King passed on information to Mary Kinsey about her ancestry, but “was not good with dates”, so Mary searched for documentary records regarding her family tree to get “a complete understanding of events”. Rhys Kinsey also conducted research regarding his ancestry.

46    John Robinson and Margaret Ann Matthews were the parents of Rose King. John Robinson had previously been married to Esther Blazely, with whom he had William Robinson. Rose King “refused to talk about [William Robinson] for quite a long period of time”, Mr Kinsey said, because of “historical events … around him”. Mr Kinsey expressed the view that William was “despised in the family by all” and that both William’s parents and siblings “had nothing to do with him”. Mr Kinsey understands that William Robinson disappointed his family because “he abandoned” the “newborn child” and “two-year-old daughter” he had with Mary Florence Stewart.

47    Mary Kinsey identified through her research, documents suggesting that William Robinson was the father of John Couzens and Nicholas Couzens. Mr Kinsey gave evidence that the difference between this individual and “ours” is that “ours was William Robertson, not Robinson”. Mr Kinsey understands, in this respect, that his ancestor “lived as William Blazely Robertson” and that the only time he called himself “Robinson” was in connection with a court proceeding.

48    Mr Kinsey gave evidence that around the mid-1980s, Mary Kinsey shared with Libby Clarke and other members of the Couzens Family the documents she found about William Robinson and Harriet Couzens. Mary Kinsey also “proposed the name Couzens” to her mother, but Rose King said, “I don’t know any Couzens at all. They’re not part of us”.

49    Mr Kinsey also asked his grandmother about the Couzens. He gave evidence that she told him that “there’s no relationship” and that she “doesn’t know them.” He did, however, understand that Harriet Couzens’ husband, John Wyselaskie, frequently visited the Robinson home. During cross-examination, counsel for the descendant respondents put to Mr Kinsey the following passage from an affidavit he swore in 2022, detailing a conversation he had with Rose King about the children of William Robinson:

She made it very clear to me, and in no uncertain terms, that none of William Blazely Robertson’s children were part of our people. Her father had determined this. She said that her brother William did not raise any of his children, including those mentioned in the previous paragraph. She stated assertively that his children were raised by other Aboriginal families who had no connection to our people and our ways. She said that they are not part of our people and were never part of us. They belong to other tribes, not ours.

…

I didn’t argue with her because it was true. These decisions were made by her father, a leader and I had no right to second guess a Clan head and LORE man. My grandmother was crying and said, “That's the end of it and make sure you tell your mother!” I accepted what I was taught and was embarrassed I had questioned the relationship of her brother’s children.

50    It was put to Mr Kinsey that this was the same conversation with his grandmother as that referred to at [49] above. Mr Kinsey denied this, giving evidence that his affidavit was mistaken and the conversation he had with Rose King was about the Couzens, not about William Robinson’s children. Mr Kinsey also refuted the suggestion that it was possible that John Robinson had no direct knowledge about John or Nicholas Couzens because he was not living at Framlingham when they were born.

Historical documents

51    The historical documents span two timeframes relevant to the separate question. First, January 1892 until February 1893, being the time immediately prior to John Couzens’ conception until after his birth on 8 January 1893. Second, 21 July 1902 until 7 August 1904, being the time after the birth of Nicholas Couzens in February 1902 through to William Robinson’s imprisonment for assault.

52    The geographic focus of the material is Framlingham. They are, in the main, Board records including letters written by Rev. Hagenauer to and about various First Nations persons living there, as well as “reports” to the Board about visits to Framlingham. As is apparent from the agreed issue, there is a live controversy as to whether the person identified in those records is the same person as William Robinson, son of John Robinson. Given that controversy, the overview below adopts the spelling used in the documents (in quotation marks) for the names of the individuals referred to.

22 January 1892 to February 1893

22 January 1892

53    On 22 January 1892, Rev. Hagenauer wrote a series of letters in connection with reports that various men had been “harboured” at the home of “Harriet Couzens at Framlingham Station”.

54    The letter addressed to “Mrs Harriet Cousins” is as follows:

It have [sic] been reported to this Office by the Blacks residing at Framlingham that you have taken into your house fed, and harboured some of the half caste men, who have no right to be at the Station and that you have kept them as if you were married to one of them. I have the honour to notify you that the Police will receive instruction not only to have these men arrested but to bring you under the operation of the Law and if report is true to have you transferred to the Melbourne Refuge at an early date. Inquiry will be made shortly into all particulars of the case especially as you are under the operation of the Half Caste Act.

(Emphasis added)

55    Rev. Hagenauer also wrote that day to “Mr W. Robinson” and “Mr Jack Patten” at Framlingham.

56    The letter to “Mr W. Robinson” is as follows:

It has been reported that you are trespassing at the Station and reserve at Framlingham and that you have been requested by those blacks who are allowed to live there, to leave the place, which you have not done. I have therefore the honour to inform you that instructions will be sent to the police to take you away or to arrest as a trespasser on the reserve.

I send you these few lines to give you notice and I hope that you will leave at once, before you be arrested.

57    The letter to “Mr Jack Patten” is in similar terms and states:

Many complaints have been received at this office that you are hanging about the Framlingham Station against the law…. I have the honour to inform you that you are liable to a fine of ₤20 and that you may at any time be brought before a Court of Justice etc.

I hereby notify to you that you at once leave the Station at Framlingham and Reserve adjoining thereto. Instructions will be forwarded to the Police to see the Law enforced and to have you arrested as a trespasser and brought before the court.

In conclusion I caution you again to leave before it is too late.

58    The final letter of that same date is addressed to “Mr Toscas Johnson … Framlingham”. A person bearing that name is identified in a “roll of attendance” for Framlingham dated 1899 as a resident of house “18B”. The letter is as follows:

My dear friend,

I duly received your letter of 17th instant and also your telegram asking to have the men removed you [sic] are always at Harriett’s house etc. I can assure you that steps will be taken at once to remove them for each one of them is liable to a fine of ₤20 and brought before the Court of Justice. I have written to them so they know the Police will soon come to arrest them. I have also written to the woman Harriett Cousins so that she may be removed at an early day to the Melbourne Refuge because she is under the operation of the Half Caste Act and as she cannot behave she must submit to the law.

All matters will be inquired to and you old people shall have your full rights and protection.

…

(Emphasis added)

4 February 1892

59    On 4 February 1892, Rev. Hagenauer wrote to Constable Weir at Woodford about “Williams Robison”. The letter states:

In answer to your letter of the 30th ultimo, re the Half­Caste man Williams Robison, I have the honour to inform you that I had already sent an official letter to him and the half cast man Patten, directing them to leave the place at once, but from your letter I notice that Robison has returned and is therefore trespassing at Framlingham, thereby not only giving great offence, but I have been informed is living with the widow woman Harriett Cousins, which makes matters still worse. I have the honor to draw to your attention Section II of Act 1859, where it is stated that half castes must have a certificate to reside on a Station and Section 14 and 15 gives instruction to deal with offenders. according to law, I shall therefore request you to have these men removed at once, so that the above clauses may be carried out.

Regarding the young widow woman Harriet Cousins, who comes likewise within the provisions of this law, both the Vice Chairman and myself were informed by her on the 26th. ultimo, that she was to marry Robison at an early date and to leave Framlingham. She received one month’s time, after which she also must remove from Framlingham and her rations will have to be [indecipherable word] at that given time, except she obtains a licence from the Board.

(Emphasis added)

18 March 1892

60    Over a month later, on 18 March 1892, Rev. Hagenauer wrote to “Mrs H. Cousins” at Framlingham. The letter states:

Your letter of the 29th of February was duly received by me and also laid before the Board; there were likewise other letters received from people at Framlingham, and also from J. Ross, at [Heshaw] requesting the Board to have all the Half Cast who have no right to be there, removed as soon as possible.

You will remember when Mr. Officer and myself spoke to you about Willie Robertson stopping at your house and as it was written to the office that you lived like married people then, you said that Robertson was going to marry you soon.

You [sic] was then informed that you would either have to marry or that you would have to be removed. You wished to have one month’s time, that time was up at the end of February, when your ration had to be stopped, but I have since telegraphed to Mr Weir to give you an order to the 6th of April. The Board is now taking steps to obtain an Order of the Governors in Council to have you removed by the Police, so that the people shall not have reason to complain about you after that.

As to marrying Robertson you are quite able to please yourself, and if you marry him, I have no doubt that the Board will assist you gladly and start you, as they did others; but you must know, that Roberts (sic) nor Patten must not come to Framlingham any more, neither can any one return, who once left the place.

(Emphasis added)

61    The letter from Harriet Couzens dated 29 February is not in evidence.

31 May 1892

62    On 31 May 1892, Rev. Hagenauer gave a report to the Vice Chairman of the Board with respect to a visit to Framlingham. The letter contains the following account of persons said to be at Framlingham without permission:

I have the honour to report that during the past month I have visited Framlingham and distributed the supply of clothes and blankets to all who are lawfully entitled to such assistance.

…

I regret very much to state that a considerable number of halfcastes, who left several years ago have returned and recieve [sic] shelter and provision from the Blacks, who reside at the place. There is also a rumor that all those, who have left formerly, will return shortly and steps ought to be taken effectually to carry out the law regarding this question.

The names of those lately returned are as follows:

5. James Crow (24) Wife (22) and child. Eliza Sanders (widow) and Amy Sanders (15) – staying at William Goods.

6. Mrs. Henry Albert and 5 children. Henry Albert had been living and supporting himself and family in Gippsland but left there lately in order to go Framlingham or Condah.

1. Young Robertson, son of a halfcaste man and white mother residing on their farm near Ballarat, who has been living with the young widow, named Cousins in an unlawful state. Young Batters, who went to Fram-

5. lingham from Queenscliff, where he worked as black-smith. These partly live with Elliots and partly with Mrs. Cousins. Mrs. Cousins, if she cannot earn her living should be moved to another station under an order in Council of which she should get due notice.

6. Henry Nelson, wife and 4 children who were in service at Mr. Philips but are now living at Framlingham.

Total 23. Noone of those named does any work in order to help themselves.

(Emphasis added).

28 February 1893

63    John Couzens was born on 8 January 1893. His father is recorded on his birth certificate as “illegitimate”. A little over a month later, on 28 February 1893, Rev. Hagenauer “agreed to” a report written by “E H Cameron MLA” to the Vice Chairman of the Board regarding a “visit of inspection” to Framlingham:

In accordance with the Board’s resolution of the 1st inst. to pay a visit of inspection to Framlingham, I have the honour to report that in company with the Hon W. Anderson and the General Inspector, we duly investigated the various matters requiring attention at that place, and the recommended for consideration and adoption.

…

7.    With reference to the case of the half caste woman Harriett Cousins who has already several illegitimate children strict measures should be taken to have her removed from the place and when possible that legal proceedings be taken to compel the reputed father to support his children. Agreed.

(Emphasis added)

21 July 1902 to 7 August 1904

21 July 1902

64    Nicholas Couzens was born in February 1902. Later that year, the Board submitted its “Thirty-eighth report on the state and conditions of the Aborigines under their care”. The report attached a series of “reports of managers of the different stations”. Of present relevance, these included a report from E. G. Shoebridge dated 21 July 1902 with respect to “the state and conditions of the Blacks at Framlingham Station for the year ended 30th June 1902”. The report stated:

There was one illegitimate birth by an aboriginal widow named Mrs. Cousins, February, 1902, the father of the child being a half-caste, named Wm. Robinson, who has deserted.

19 July 1904

65    William Robinson was sentenced to prison on 4 August 1904. The documents relevant to his prosecution include a memorandum from the Crown Solicitor to Constable Shoebridge dated 19 July 1904 regarding The King v Robinson. The memorandum is addressed to “the Officer in Charge of Police, Woodford” and notes that “Constable Shoebridge has charge of the case”. The memorandum includes a series of populated “queries” and “replies”, including the following:

4 August 1904

66    The sentencing of William Robinson was reported in the Camperdown Chronicle:

At the Geelong Supreme Court on Thursday, a half-caste Aboriginal named William Robinson, 31 years of age, was charged with assaulting a girl under the age of consent at Framlingham, the Aboriginal mission station, on or about 31 December last.

7 August 1904

67    In October 1904 the Vice Chairman of the Board submitted its “Fortieth Report on the state and condition of the Aborigines under their care”. Again, the report attached a series of “reports of managers of the various stations”. Amongst these was a report from E. G. Shoebridge with respect to “the state and condition of the Aborigines at Framlingham Camp for year ended 30th June 1904”. That report stated as follows:

There was one illegitimate birth by a young half-caste girl named Effie Alberts, the father of the child being a half-caste named Wm. Robinson, who has been sentenced to one year’s imprisonment, with hard labour, on a charge of unlawfully and carnally knowing the said girl.

parties’ submissions and my findings

John Couzens

Participating Respondents

68    Mr Clarke, Dr Couzens and the State submit that the evidence supports, on the balance of probabilities, the conclusion that the biological father of John Couzens is William Robinson, the son of John Robinson.

69    That submission is principally founded on the character of the relationship described in the letters written by Rev. Hagenauer between January and May 1982, the proximity of those reports to the likely timing of John Couzens’ conception, and the similarities between the man identified in those letters and William Robinson. In summary:

(a)    the letters refer to a “half-caste” man variously named “William Robinson”, “Willie Robertson” and “Young Robertson” living with Harriet Couzens “like married people” and in an “unlawful state”. The participating respondents submit that the Court can reasonably and rationally conclude from the letters that these references are to the same man;

(b)    the man identified in the letters shared relevant characteristics with William Robinson, specifically:

(i)    the names attributed to the man in the letters are attributable to William Robinson;

(ii)    William Robinson was in his early twenties at the time the letters were written, which is consistent with the description of “Young Robertson”;

(iii)    the man’s father is identified in the letter dated 31 May 1892 as a “half caste man”, which is a term the authorities of the time would have attributed to John Robinson because he was the child of an Aboriginal woman and a white man;

(iv)    the man’s mother is identified in the letter dated 31 May 1892 as “white”, which is a description that could be attributed to Esther Robinson (nee Blazely);

(v)    the man is described as a “half-caste”, which is a term the authorities of the time would have attributed to William Robinson given the ethnicity of his parents; and

(c)    John Couzens was born just over seven months after the last of the letters was written (on 31 May 1892).

70    Given those shared characteristics, and the absence of positive evidence about any other man with whom Harriet Couzens may have had an intimate relationship at the relevant time, the participating respondents submit that the answer to the separate question with respect to John Couzens should be “yes”.

Applicant

71    The applicant submits that Mr Clarke and Dr Couzens have not discharged their onus of proof of establishing, on the balance of probabilities, that William Robinson is the biological father of John Couzens.

72    The applicant does not put in issue that it can reasonably and rationally be inferred from the letters that at the material time Harriet Couzens gave safe harbour to a number of men at her home, including one called, Robinson. The applicant does, however, put in issue the character of the relationship between Harriet Couzens and the person or persons identified in the letters and that the man was William Robinson, the son of John Robinson. The basis of that position is as follows.

73    First, the applicant contends that very little weight ought to be attributed to the hearsay in the letters that state Harriet Couzens was living “as if … married” to the man identified in the letters. That submission is principally founded on the circumstances existing for First Nations people at the time under the Aborigines Protection Act 1886 (Vic). The applicant says that judicial notice ought to be taken of those circumstances in considering the letters, including that “every aspect of the lives” of those living at Framlingham was “completely controlled by the Mission managers” and the “tremendous power imbalance” between Rev. Hagenauer and Harriet Couzens, amongst others. This means, the applicant argues, that “any recording of matters relevant to Aboriginal people” in the letters by Rev. Hagenauer “will be bias to his background, his agenda, his role of enforcing the removal of people from Framlingham … and his role of Secretary [of the Board]”. The applicant contends that the letters contain “first or more hearsay information … [making the] whole of the information … unreliable”. It is also said that there exist other inconsistencies in the historical records, which goes to undermine their force. Particular reference is made in this regard to a letter from Rev. Hagenauer dated 28 February 1893, which describes Harriet Couzens as having “several illegitimate children” when her elder child was born out of wedlock and a list of persons residing at Framlingham dated 26 August 1896, which appears to record her as having three “little children” when she only had two children.

74    Second, the applicant submits that Mr Clarke and Dr Couzens have not established that the person referred to in the letters is the son of John Robinson. That submission is founded on the differing spelling used in the letters, including “Robertson”, “Robison” and “Robinson”. The applicant also contends that “Robinson” was “not an uncommon name within the Aboriginal community in the area at the relevant time”. That submission is founded on the reference to Sam Robinson, Henry Robinson, and two women both named Mary Robinson in an 1889 roll of attendance for Framlingham and the reference to a “William Roberts” … “aged 40” in a report dated 1881 regarding Lake Condah Aboriginal Reserve.

75    Third, the applicant contends that the lay evidence does not support that there was an oral tradition that John Couzens was descended from John Robinson. The applicant highlights, in this respect, that the family oral history until approximately the mid-1980s was that James Couzens was the father of John Couzens.

Findings

76    I find, on the balance of probabilities, that William Robinson, the son of John Robinson, is the father of John Couzens. That is for the following reasons.

One man

77    First, I am satisfied that the references in the letters to “W. Robinson”, “Williams Robison”, “Willie Robertson”, “Young Robertson” and “Wm Robinson” are to one man. A common thread in the letters is that the man referred to is at Framlingham without permission. But that is not the only connecting feature. The letter dated 4 February 1892 refers to “an official letter” sent to “Williams Robison” directing him to leave Framlingham at once. That in terms reflects the letter sent to “W. Robinson” on 22 January 1892. The 4 February 1892 letter also refers to “Williams Robison” living with “Harriet Cousins”. That in terms reflects the letter written on 18 March 1892 to “Mrs H. Cousens” referring to a “Willie Robertson stopping at [her] house” and a report that they “lived like married people”, which letter goes on to state that “Roberts …must not come to Framlingham anymore”. That description again appears in the letter dated 31 May 1892, wherein “Young Robertson” is said to be “living with the young widow, named Cousins”.

78    Even within a single letter, dated 18 March 1892, differing spelling (“Robertson” and “Roberts”) is used to refer to what can rationally and reasonably be identified as the same person. Indeed, that same letter is addressed to “Mrs H. Cousins” but opens with a reference to “Mrs H. Cousens”. It is evident that scant attention was paid in the letters to the proper spelling of the people to whom they were addressed or referred. But the specificity of their common subject matter over a confined period and in relation to one location (Framlingham) provides a sufficient basis to infer that it is more likely than not that they concerned one person.

The man is the father of John Couzens

79    Second, I am satisfied that there is sufficient basis to infer that it is more likely than not that the man referred to in the letters is the father of John Couzens. That inference is founded on the following separate accounts in the historical record as to the character of the relationship between Harriet Couzens and the man identified in the letters and their proximity to the likely conception of John Couzens:

(a)    First, the account in the letter dated 22 January 1892 that Harriet Couzens lived “as if married” with one of the men to whom she had given safe harbour at her home. It can be inferred that the source of that information is Toscas Johnson, a resident at Framlingham. That is because the report is said to have been made “by the Blacks residing at Framlingham” and the letter written to Mr Johnson on that date refers to an earlier letter and telegram from Mr Johnson requesting “to have the men removed” that are “at Harriett’s house etc.”;

(b)    Second, the accounts in the letters dated 4 February and 18 March 1892 that Harriet Couzens informed Rev. Hagenauer that she was to marry the man named, “Robison”, “Robertson” and “Roberts”; and

(c)    Third, the account in the report dated 31 May 1892 that “Young Robertson” … “has been living with the young widow, named Cousins in an unlawful state”. That account was recorded following a visit by Rev. Hagenauer to Framlingham “during the past month”. I infer that the reference to “unlawful state” is a characterisation of their relationship because it appears as part of a report on 23 people at Framlingham without permission and nowhere else is that description used.

80    As to the matters raised by the applicant, it can readily be accepted that there existed a tremendous power imbalance between Rev. Hagenauer and Harriet Couzens. It is not necessary to resort to judicial notice about the circumstances existing under the Act at the relevant time to reach that conclusion, as much is plain from the terms of the letters themselves. The difficulty is neither that submission nor the matters raised by the applicant as to the said bias of Rev. Hagenauer regarding First Nations people, provides a sensible reason for discounting the evidence about the character of the relationship between Harriet Couzens and the man that is named in the letters.

81    The separate question is concerned with the narrow issue of biological descent, not traditional law and custom. And the applicant has not identified how, or why, the background, agenda and role of Rev. Hagenauer or, indeed, his individual morality, disqualifies that aspect of the letters. The height of the submission is that Harriet Couzens’ statement in the letter dated 18 March 1892 that she intended to marry “Willie Robertson” is to be viewed in the context of her being told that she would either have to marry him or be removed from Framlingham. But the applicant accepts that it is unclear from the letters that marriage meant that Harriet Couzens could stay at Framlingham. Indeed, Harriet Couzens is reported to state in the letter dated 4 February 1892 that she “was to marry Robison at an early date and to leave Framlingham”. It is mere conjecture that the circumstances existing under the Act would cause Harriet Couzens to lie about the character of her relationship with “Willie Robertson” or that the context is such that it otherwise disqualifies the statements in the letters such that they should be attributed no or no substantive weight.

82    The historical record is to be treated with caution. And as the Full Court emphasised in SNF, the weight to be attributed to hearsay will turn on the evidence in question and an assessment of its reliability: at [26]. Here there are three separate accounts, one of which is said to be from Harriet Couzens herself, to the effect that she was in an intimate or romantic relationship with the man named in the letters. Neither of those individual accounts is so unreliable as to deprive them of probative value. Moreover, the inaccuracy in the letter dated 28 February 1893 that Harriet Couzens’ eldest child was “illegitimate” and that in the record dated 1896 that she had “3” children does not materially detract from their force. Neither inaccuracy bears on the question of the father of John Couzens and two errors by different authors in other documents written over three years apart is not sufficient to generally call into question the reliability of the hearsay in the letters. Considered together, and in the context that a little over nine months after the visit of Rev. Hagenauer to Framlingham in April or May 1892 John Couzens was born, the letters at [79] above, reasonably and rationally support the inference that the man identified therein was his father.

The man is William Robinson, the son of John Robinson

83    Third, I am satisfied that the person referred to in the letters is William Robinson, the son of John Robinson. I accept, in this regard, the submissions made by the participating respondents at [69] above as to the common characteristics they shared. Those shared characteristics are sufficiently specific and numerous as to positively suggest, that is to say provide a reason for thinking it likely, that the man referred to in the letters is the same man as William Robinson, the son of John Robinson.

84    I am not persuaded that the presence of other men named “Robinson” at Framlingham provides a proper basis to discount that inference. As the State highlights, merely listing historical references to other persons named Robinson is not sufficient to support a contrary conclusion. Neither Sam Robinson nor Henry Robinson corresponds with the man referred to in the letters because they were living at Framlingham, not there without permission. And William Roberts would have been approximately 51 in 1892, making him too old to be the man described in the letter dated 31 May 1892 as “young”.

85    Further, I am also not persuaded that absence of an oral history of biological descent from William Robinson or the fact of an oral history about descent from James Couzens discounts that inference. A striking feature of the evidence of the witnesses on both sides of the dispute is their respective families’ efforts to obtain further information about their ancestry from about the 1980s. For Mr Kinsey, it was at this time that he and his mother first learned of their First Nations heritage. For Dr Couzens, it was around this time that she first learned of the possible connection with William Robinson through the efforts of Mary Kinsey. For Mr Clarke, it was around this time that his mother collaborated with Zelda Couzens and Mary Kinsey to learn more about their respective families’ ancestry.

86    The fact that Dr Clarke and Dr Couzens have had to research the historical record with respect to this aspect of their ancestry rather than it being the product of oral history does not bear on the inferences that can reasonably and rationally be drawn from the letters. Neither does the fact that there was an oral history of John Couzens’ descent from James Couzens. That is because it is impossible that James Couzens was the father of John Couzens (or indeed Nicholas Couzens), given that he died on 16 July 1887, over five years before John Couzens was born. And while I am not persuaded that the evidence with respect to an oral history of a connection with the Robinson Family (in particular, Valentine Dalton (nee Robinson)) in and of itself provides a positive basis to draw inferences about biological descent from John Robinson, it is at least consistent with that inference.

87    The only oral history that may discount the inferences available on the historical record is that of Rose King who, Mr Kinsey gave evidence, said that “there’s no relationship” with the Couzens Family and that “they’re not part of us”. I am not persuaded that this evidence, if accepted, is sufficiently clear to refute the inference reasonably available on the letters that William Robinson, the son of John Robinson, is the father of John Couzens. Those statements can properly be characterised as a rejection of a relationship between the family of Rose King and the Couzens Family. But it is not accompanied by evidence of facts as to why it could not be the case that William Robinson is the father of John Couzens such that the inference reasonably available on the evidence ought to be discounted. The risk in relying on those statements by Rose King to discount the inferences available on the letters is underscored by the evidence otherwise given by Mr Kinsey that William Robinson was despised by his family. That is to say, there may be a number of reasons why Rose King refuted a familial relationship with the Couzens Family. It is mere conjecture that she did so because they were not biologically descended from William Robinson.

88    It follows that I am satisfied, on the balance of probabilities, that the answer to the separate question with respect to John Couzens is “yes”.

Nicholas Couzens

Participating respondents’ submissions

89    Mr Clarke, Dr Couzens and the State submit that the evidence supports, on the balance of probabilities, the conclusion that the biological father of Nicholas Couzens is William Robinson, the son of John Robinson.

90    That submission is principally founded on the similar characteristics between William Robinson and the description in the Board report dated 21 July 1902 of the father of Harriet Couzens’ son: “a half-caste man, named Wm. Robinson, who has deserted”. It is an agreed fact that the child named in that report is Nicholas Couzens. Further support for that inference is said to be found in the similar description of the father of Effie Alberts’ child in the Board report dated 7 August 1904.

Applicant’s submissions

91    The applicant contends that the evidence that William Robinson is the father of Nicholas Couzens is “significantly weaker” than that of John Couzens, and that the Board report should be given little or no weight because “it is likely to be at least second hand or more hearsay, created at a time that was devastating for the Aboriginal population of Framlingham by a person who was enforcing the removal policies” of the Act. The applicant also relies on the absence of an oral history that William Robinson, the son of John Robinson, is the father of Nicholas Couzens.

Findings

92    I find, on the balance of probabilities, that William Robinson, the son of John Robinson, is the father of Nicholas Couzens. That inference is founded on the following aspects of the historical record:

(a)    First, the shared characteristics between the man named in the Board report dated 21 July 1902 and William Robinson, the son of John Robinson. In particular, it is reasonable and rational to infer that the reference to “Wm. Robinson” is a shorthand for William Robinson, which is the name of the son of John Robinson. Further, the description “half caste” that is attributed to “Wm. Robinson” in the report is one that the authorities of the time would have attributed to the son of John Robinson for the reasons stated at [69(b)(v)] above; and

(b)    Second, as appears from the Board report dated 21 July 1902, the child was born at Framlingham. The historical records with respect to Harriet Couzens support the inference that she lived there, at least between the period 1892 and 1902. The reference in the memorandum dated 19 July 1904 to William Robinson “chiefly [residing] at Framlingham” supports the inference that he had a periodic but permanent presence at Framlingham proximate to the date of Nicholas Couzens’ conception. The memorandum records that William Robinson was shearing in Caramut district and returning prior to November 1903. The report of his sentencing makes clear that this was one month before he committed the offence against Effie Alberts on 31 December 1904. It cannot be said with certainty based on these reports that William Robinson was present at Framlingham in 1901 when Nicholas Couzens would have been conceived. But the memorandum provides a reason for thinking it likely that William Robinson had a permanent presence at Framlingham around that time and before he went shearing in 1903.

93    I am not satisfied that the absence of an identified source for the Board report dated 21 July 1902 means that it should be given little or no weight. The other aspects of the report, including the date of birth of the child and the fact that his parents were not married, accord with what is known about Nicholas Couzens and the marital status of Harriet Couzens at the relevant time.

94    Similarly, I am not satisfied that the circumstances existing under the Act provide a sensible basis for disqualifying or attributing little or no weight to the hearsay in the Board report dated 21 July 1902. That is for the reasons identified at [80] to [81] above, which take on greater force given the absence of any stated connection between those circumstances and the character of the report itself.

95    Finally, I am not satisfied that the absence of any oral history that William Robinson, the son of John Robinson, is the father of Nicholas Couzens, provides a basis to discount that inference for the reasons stated at [85] to [86] above.

96    It follows that I am satisfied, on the balance of the probabilities, that the answer to the separate question with respect to Nicholas Couzens is “yes”.

conclusion

97    As Mortimer J emphasised in Drill at [13], in separate questions such as these, the Court is not the arbiter of history. Its function is to decide whether the party who bears the onus of proof has shown that the facts it contends for are more likely than not to have existed. For the reasons outlined above, I am satisfied that Mr Clarke and Dr Couzens have discharged their onus of proof and that it is more likely than not that both John Couzens and Nicholas Couzens are biologically descended from John Robinson.

Associate:

Dated:    26 August 2025

SCHEDULE OF PARTIES