Supreme Court of Norfolk Island

Deputy Curator of Deceased Estates, in the matter of Green [2024] NFSC 1

ORDERS

THE COURT ORDERS THAT:

1.    The questions raised in the Deputy Curator’s Originating application be answered as follows:

(1)    No. The document titled “LAST WILL OF W.K.GREEN” dated 25 January 2005 and signed by William Kenneth Green (the Deceased) is not a valid will and the Deceased’s estate be distributed on intestacy pursuant to the provisions of the Administration and Probate Act 2006 (NI).

(2)    Yes. The adoption orders made on 27 October 1971 in the Magistrates Court at Napier, New Zealand, under the Adoption Act 1955 (NZ) regarding Peter Simon and Tracy Huia Simon (the Deceased’s Biological Children) are effective adoption orders under the Adoption of Children Act 1932 (NI) and pursuant to s 9 of that Act, the Deceased’s Biological Children are not entitled to benefit on intestacy under the Deceased’s estate and the Deceased’s estate be distributed to Patricia Rosanne Stevens, the Deceased’s sister, as the only eligible next of kin.

(3)    Does not arise.

REASONS FOR JUDGMENT

BESANKO CJ:

Introduction

1    This is an Originating application brought by the Deputy Curator of Deceased Estates (the Deputy Curator) in Norfolk Island pursuant to s 130 of the Administration and Probate Act 2006 (NI) in which she seeks the opinion or direction of the Supreme Court on certain questions and issues arising in the administration of the estate of William Kenneth Green, late of Shortridge Road, Norfolk Island, deceased. Although the office of the Curator is presently vacant, the Deputy Curator may exercise any function of the Curator, subject to any direction of the Curator (s 5 of the Administration and Probate Act). An order under s 121 of the Administration and Probate Act to Collect and Administer the estate of the deceased was granted by this Court to the Deputy Curator on 25 September 2020.

2    The questions and issues arising in the administration of the estate of the deceased appear in the Deputy Curator’s Originating application and are as follows:

1.    Whether the document titled “LAST WILL OF W.K.GREEN” dated 25 January 2005 and signed by William Kenneth Green (“the Deceased”) is a valid Will and if not whether the Deceased’s estate be distributed on intestacy pursuant to the provisions of the Administration and Probate Act 2006 (NI).

2.    Whether the adoption orders made on 27 October 1971 in the Magistrates Court at Napier, New Zealand, under the Adoption Act 1955 (NZ) regarding:

(a)    PETER SIMON; and

(b)    TRACY HUIA SIMON.

(“The Deceased’s Biological Children”)

are effective adoption orders under the Adoption of Children Act 1932 (NI) and pursuant to section 9 of that Act the Deceased’s biological children are not entitled to benefit on intestacy under the Deceased’s estate and the Deceased’s estate be distributed to PATRICIA ROSANNE STEVENS, the Deceased’s sister, as only eligible next of kin.

3    The alternative question or issue in the Originating application is whether the adoption orders are not effective orders under the Adoption of Children Act 1932 (NI) and the deceased’s biological children are entitled to benefit on intestacy under the deceased’s estate and the deceased’s estate be distributed to the deceased’s biological children as the only eligible next of kin.

4    The document referred to in the first question is a single page handwritten document dated 25 January 2005 purporting to be the final will of William Kenneth Green. By the document, the deceased purports to leave all of his estate to Tracy Leeann Edwards. The deceased died on Norfolk Island on 21 June 2009 and his death certificate records his “issue” in order of birth as being “Tracy Edwards (daughter) and Peter (son)”. Other information before the Court which I accept is to the effect that Peter was born before Tracy. The point is immaterial for present purposes.

5    If the handwritten document is a valid will according to the law of Norfolk Island, then the estate is to be distributed to Tracy Leeann Edwards as the person named in the document as the person entitled to his estate. If the handwritten document is not a valid will, then the deceased’s estate is to be distributed on intestacy.

6    The precise issue raised on the facts about the validity of the handwritten document is whether it was executed in accordance with the requirements of s 7 of the Wills Act 1973 (NI) and, if not, whether the Court has the power (and should exercise it) to declare the document a valid will despite the non-compliance. There was a previous proceeding in this Court for a grant of probate of the handwritten document by the person named as the executor in the handwritten document, but ultimately that application was discontinued (P17 of 2009).

7    If the handwritten document is not a valid will, then the question or issue is who takes the deceased’s estate on intestacy. The rules for distribution on intestacy are set out in s 58 of the Administration and Probate Act and, relevantly for the purpose of this case, Part 2.2 of Schedule 2 of the Act. On the face of it, under the Act the deceased’s biological children as his issue are entitled to the whole of the estate. The word “issue” is defined in s 3 of the Act as all issue, whether legitimate or illegitimate. If there are no issue or eligible issue, the next in line are a parent or parents. If there is no parent or parents, then the estate is distributed to the next of kin ascertained in accordance with s 63 of the Act. In this case, the deceased’s sister is his next of kin. The order of distribution under the Administration and Probate Act is subject to the effect (if any) of adoption orders made by the Magistrates Court in Napier, New Zealand in relation to the deceased’s biological children.

8    As I have said, the Administration and Probate Act defines the word “issue” as meaning all issue whether legitimate or illegitimate. The meaning of “issue” at common law is addressed later in these reasons (at [69]). Subject to the effect of the adoption orders, Peter and Tracy are issue of the deceased.

9    Adoption orders made under the Adoption of Children Act 1932 (NI) have the effect specified in s 9 of that Act. Section 9 contains principles concerning the effect of an adoption order in relation to matters of custody, maintenance and education and in relation to matters of succession to real and personal property. One such principle is that upon the making of an adoption order, the adopted child shall not have any right of succession to any real or personal property of that child’s natural parent or parents which, if the adoption order had not been made, might have been claimed (whether under any intestacy or disposition) by such child as a child born to its natural parent or parents in lawful wedlock, unless in the case of a disposition the child is expressly named therein (s 9(3)(b)). That paragraph is in the following terms:

(3)    Except as hereinafter provided, on, from and after the making of the adoption order, the adopted child —

…

(b)    shall not have any right of succession to any real or personal property of its natural parent or parents which, if the adoption order had not been made, might have been claimed (whether under any intestacy or disposition) by such child as a child born to its natural parent or parents in lawful wedlock, unless in the case of a disposition such child is expressly named therein: …

10    The Adoption of Children Act 1932 (NI) does not contain a section or sections which provide for the recognition in Norfolk Island of adoption orders made in other jurisdictions.

11    The Deputy Curator has described the deceased’s estate as consisting of a house and land on Norfolk Island worth approximately $125,000 to $145,000 and a term deposit of $125,908. It appears that the house and land were sold for an amount in excess of the estimate, but the precise details are not material to the issues on this application.

The Evidence

12    The Deputy Curator’s application was supported by an affidavit sworn by her and an affidavit sworn by her solicitor, Mr Frederick John Grose. Mr Grose’s affidavit includes as exhibits some of the documents filed in the earlier probate proceedings. One such document is an affidavit of Norah Scadden “(formerly Edwards, nee Simon)”.

13    The deceased’s biological children, Peter Rameka Edwards and Tracy Leeann Huia Edwards, filed Notices of intention to respond in the proceeding. They relied on two affidavits, being an affidavit of their solicitor, Mr John Terrence Brown, and an affidavit of Mrs Scadden filed in this proceeding.

14    The deceased’s sister, Ms Patricia Rosanne Stevens, also filed a Notice of intention to respond in the proceeding.

15    I was assisted by written submissions provided by each of the parties, namely, the Deputy Curator, the biological children, and the deceased’s sister. In addition, I heard brief oral submissions from the parties.

The Facts

16    The deceased was born in Bentleigh, Victoria on 23 February 1943 and, as I have said, he died on Norfolk Island on 21 June 2009. The deceased’s death certificate states that he lived on Norfolk Island for 30 years.

17    The respective birth certificates for the deceased’s biological children, hereinafter referred to as Peter and Tracy, record that they were born on 25 June 1967 and 13 July 1968 respectively, and that each was given their mother’s maiden name, Simon. The biological mother was recorded as Norah Simon, but there was no record on either birth certificate of the name of the biological father.

18    In her affidavit in the probate proceeding, Mrs Scadden deposed that she is the mother of the children of the deceased person. Mrs Scadden did not marry the deceased and she separated from the deceased at Rotorua, New Zealand on 1 October 1969. Mrs Scadden then married Louis John Edwards at Rotorua on 10 November 1969. Adoption orders with respect to Peter and Tracy were made on 27 October 1971 by the Magistrates Court in Napier, New Zealand, and by those orders, Peter was given the name Peter Rameka Edwards and Tracy was given the name Tracy Leeanne Huia Edwards.

19    Mrs Scadden divorced Louis John Edwards on 8 November 1989 and she married Geoffrey Charles Scadden on 21 November 1992.

20    Mrs Scadden swore an affidavit in this proceeding after a number of written submissions had already been filed. She deposed that, with respect to the adoption orders made in New Zealand on 27 October 1971, she did not provide the deceased with copies of the application papers or the orders in relation to either of the adoptions and nor did she ask or authorise any other person to do so. She believes that she first told the deceased about the adoptions when he called at her home a few days after the orders were made. She had no recollection of telling him beforehand.

21    It should be noted that in an affidavit explaining the delay in obtaining an affidavit from Mrs Scadden in this proceeding, Mr Brown deposed to being told that she is elderly and in poor health and that it was difficult to arrange for her to leave home.

22    The deceased’s mother died at Hampton, Victoria on 10 January 1975 and his father died at Sandringham, Victoria on 14 January 1988. The deceased is survived by a sister, Patricia Rosanne Stevens.

23    Mr Grose’s affidavit also included as exhibits two other affidavits filed in the earlier probate proceedings.

24    The first affidavit is an affidavit of the person named as the executor in the handwritten document, Denis Harold Christian. Mr Christian deposed that the handwritten document is what he believes to be the last will of the deceased person and that he is not aware of any other document containing the testamentary intentions of the deceased person. Mr Christian was present when the document was executed and Penelope Anne Franke “attested the will”.

25    Mr Christian deposed that he believes that the deceased person considered that his domicile was in Norfolk Island. He bases that belief on the fact that the deceased person had lived and worked in Norfolk Island for many years, received Norfolk Island social security benefits and for over 10 years had only left Norfolk Island for holidays or medical treatment.

26    The second affidavit is an affidavit of Ms Franke. She deposed that she was present when Mr Green executed the handwritten document and that Mr Christian was also present. She wrote out the document in her own handwriting and she did that in accordance with Mr Green’s instructions to her. She did that immediately before it was executed by Mr Green. She has no doubt that Mr Green intended to execute the document as his last will and testament and that Mr Green fully understood what he was doing at that time. She deposed that she signed the will in the presence of both Mr Green and Mr Christian. They were both present at the same time and in her presence when she signed the document.

Is the Handwritten Document a Valid Will?

27    The evidence establishes that the deceased signed the handwritten document and when he did so, Mr Christian and Ms Franke were present. However, only Ms Franke signed the document.

28    I am satisfied on the evidence that the handwritten document contains the testamentary intentions of the deceased and that there is no other will or document containing a statement of the testamentary intentions of the deceased.

29    At the date of the deceased’s death, s 7 of the Wills Act 1973 (NI) was in the following terms:

Will to be in writing and signed before two witnesses

7.    (1)    Subject to this Act, a will is not valid unless —

(a)    it is in writing;

(b)    it is signed at the foot or end by the testator, or by another person in the presence of and by the direction of the testator;

(c)    the signature of the testator is made, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of two or more witnesses present at the same time; and

(d)    two or more of those witnesses each attest that signing of the will or that acknowledgement of the signing of the will and subscribe the will in the presence of the testator and of the other witness or witnesses.

(2)    The last preceding subsection shall not be taken to require any form of attestation on a will.

The requirement in issue is that in s 7(1)(d) to the effect that two witnesses “must each attest that signing of the will … and subscribe the will in the presence of the testator and of the other witness or witnesses”.

30    The Deputy Curator submits that s 7(1)(d) of the Wills Act 1973 (NI) had not been complied with because two witnesses have not subscribed the will. She accepts that that result seems to frustrate the intention of the deceased because it seems clear that the deceased intended the handwritten document to be effective and to leave his estate to his daughter.

31    Two witnesses have not subscribed the handwritten document as required by s 7(1)(d). The law as to what is required for the execution of a valid will is stated in numerous texts. In Dal Pont GE and Mackie KF, Law of Succession (2nd ed, LexisNexis Butterworths, 2013) the learned authors state (at [4.15]):

Whereas the testator must sign, or acknowledge, his or her signature in the presence of both witnesses, the witnesses’ attestation and subscription, though it must be in the testator’s presence, need not necessarily be in each other’s presence. ‘Attestation’ means the mental act of witnessing the testator’s signing or acknowledgment; ‘subscription’ is the actual signing of the will by the witness. To be valid, therefore, the witnesses must attest and subscribe the will after the testator has signed (or acknowledged). Signature in this respect has the same meaning as considered above in the context of the signature of the testator, except that in this instance another person cannot sign on behalf of a witness.

(Citations omitted.)

(See to similar effect the following texts: Mortimer on Probate (2nd ed) pp 110–117; Hasting R, Weir G and Gulliver HW, Probate Law and Practice (2nd ed, LawBook, 1948) pp 55–63; Halsbury’s Laws of England (4th ed, Butterworths, Vol 50) paras 261–268.)

32    Unlike legislation in various Commonwealth States and Territories, there was no provision in the Wills Act 1973 (NI) which gives at the time the Court the power to admit to probate a document executed in circumstances in which there has been substantial, but not strict, compliance with the requirements of s 7.

33    It was submitted on behalf of Peter and Tracy that this Court has inherent jurisdiction and that it could (and should) exercise that jurisdiction to declare that the handwritten document is a valid will in circumstances where there is clear evidence that the handwritten document contains the testamentary intentions of the deceased. There is no doubt that the law leans against a finding of intestacy (Law of Succession at paras 9.3–9.5) and that this Court as a superior court of record (s 5 of the Supreme Court Act 1960 (NI) and Supreme Court Act 1933 (ACT) s 3) has inherent jurisdiction, but there is nothing to indicate (and no authority has been cited) that such jurisdiction can be exercised to override or dispense with the requirements of s 7 of the Wills Act 1973 (NI).

34    It should be noted the Wills Act 1973 (NI) was repealed in 2012 and the Wills Act 2012 (NI) was enacted and the Court has the power under the Wills Act 2012 (NI) to dispense with the formal requirements of the Act in certain circumstances. However, the relevant section in that Act does not apply in the case of persons dying before the commencement of s 59 on 1 January 2013 and is not applicable in the circumstances of this case.

35    The deceased died without making a valid will and his estate must be administered on the basis that he died intestate.

The Devolution of the Deceased’s Estate on Intestacy?

Relevant Statutory Provisions

36    The deceased’s domicile at the date of his death and for a period of time prior to that date was Norfolk Island. The location of the real property which formed part of his estate was Norfolk Island. The order for collection and administration of the estate was made under the Administration and Probate Act of Norfolk Island. In those circumstances, there is no dispute but that the law which governs the distribution of the deceased’s estate on intestacy is the law of Norfolk Island (Davies M, Bell A, Brereton P and Douglas M, Nygh’s Conflict of Laws in Australia, (10th ed, LexisNexis Butterworths, Australia, 2020) at 910–911).

37    The adoption orders in this case were made by the Magistrates Court in Napier, New Zealand. The evidence, both documentary and that of Mrs Scadden, supports a finding that Peter and Tracy were born in New Zealand and that they and their adoptive parents were domiciled in New Zealand at the time the adoption orders were made.

38    The Adoption of Children Act 1932 (NI) refers to an adoption order, but does not define the term. It is an order made by the Court of Petty Sessions after compliance with certain procedural or natural justice requirements and on the Court being satisfied of certain matters specified in the Act. An “adopted child” is defined in s 2 of the Act as “an infant authorised to be adopted under this Act”. An adoption order may not be made in the case of certain classes of relationships.

39    Certain consents in writing are required before an adoption order is made. They are set out in s 4(3) of the Act which provides as follows:

(3)    An adoption order shall not be made except with the consent in writing of every person who —

(a)    is a parent or guardian of the infant in respect of whom the application is made;

(b)    has the actual custody of the infant; or

(c)    is liable to contribute to the support of the infant:

Provided that the Court may dispense with any consent required under this subsection in any case where the person whose consent is to be dispensed with —

(d)    has abandoned or deserted the infant;

(e)    cannot be found;

(f)    is incapable of giving consent;

(g)    being a person liable to contribute to the support of the infant has persistently neglected or refused so to do; or

(h)    is a person whose consent should, in the opinion of the Court and in all the circumstances of the case, be dispensed with.

The effect of this subsection is that an adoption order cannot be made under the Act without the consent in writing of a parent of an infant unless the Court is of the opinion that it should dispense with the requirement.

40    The effect of an adoption order made under the Act on rights of succession is set out (relevantly) in s 9(3)(b) of the Act. That paragraph is set out above (at [9]).

41    As I have said, unlike the legislation of various States and Territories of the Commonwealth and the legislation in New Zealand, the Act does not contain a provision for the recognition in Norfolk Island of adoption orders made in those States, Territories and foreign countries. The standard provision for recognition of the adoption orders of other States and Territories (and New Zealand) is set out in Nygh’s Conflict of Laws and it is followed by a discussion of recognition of adoption orders made by countries which are parties to the Hague Convention and recognition of adoption orders made by countries with which Australia has a bilateral agreement on inter-country adoption and recognition of adoption orders made in other countries (at 755–764).

42    I turn then to the position in New Zealand. The Adoption Act 1955 (NZ) contains provision requiring consents from the parents and guardians of the child before an adoption order is made. The consents from parents in a case where there is no adoption order in force in respect of the child are dealt with in s 7(3)(a) and (b) which provides as follows:

(a)    if the parents of the child were married to each other either at the time of the child’s birth or at after the time of his conception … the surviving parents or parent …

(b)    in any other case … the mother or (if she is dead …), the surviving guardians or guardian appointed by her:

provided that the court may in any such case require the consent of the father if in the opinion of the court it is expedient to do so.

43    The difference between the Norfolk Island Act and the New Zealand Act in this respect is that in the case of the Norfolk Island Act, the consent of the biological father of the child was required unless the Court dispensed with it, whereas in the case of the New Zealand Act, as Mrs Scadden never married the deceased, the latter’s consent was not required unless the Court considered it expedient to require it.

44    With respect to rights of succession, the Adoption Act 1955 (NZ) contains a section which provides that an adoption order results in an adopted child ceasing to be the child of his existing parents. Section 16(2)(b) provides as follows:

(2)    Upon an adoption order being made, the following paragraphs of this subsection shall have effect for all purposes, whether civil, criminal, or otherwise, but subject to the provisions of any enactment which distinguishes in any way between adopted children and children other than adopted children, namely:

…

(b)    The adopted child shall be deemed to cease to be the child of his existing parents (whether his natural parents or his adoptive parents under any previous adoption), and the existing parents of the adopted child shall be deemed to cease to be his parents, and any existing adoption order in respect of the child shall be deemed to be discharged under section twenty of this Act:

45    The adoption orders in this case were not made under the Adoption of Children Act 1932 (NI). They were made under the Adoption Act 1955 (NZ). Due to the fact that the Norfolk Island Act does not contain a section providing for recognition of foreign adoption orders, it is necessary to consider whether this Court should recognise the adoptions and, if so, for what purposes. It is important to bear in mind that recognition and for what purpose, or to what effect, can be two separate issues.

Common Law Principles

46    The leading case dealing with the common law principles for the recognition of foreign adoption orders is the English case of Re Valentine’s Settlement [1965] 1 Ch 831; [1965] 2 All ER 226 (Re Valentine’s Settlement). The issue in that case was whether an English Court would recognise, for the purposes of a settlement under a trust deed, an adoption order made by the court of a foreign country as conferring on the adopted infant the status of being a child of the adoptive parents in circumstances in which the adoptive parents were not domiciled in the foreign country at the time the adoption order was made. The answer given by Lord Denning MR and Danckwerts LJ (Salmon LJ dissenting) was no. Lord Denning MR said (at 230–231):

Now it has long been settled that questions affecting status are determined by the law of the domicil. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicil of the adopting parent. You do not look to the domicil of the child; for that has no separate domicil of his or her own. The child takes his or her parents’ domicil. You look to the parents’ domicil only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents’ domicil at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it.

…

In my opinion, when English law recognises a foreign adoption order as conferring the status of a child, it does not give to the child all the self-same rights and benefits of succession as a natural-born child. It only gives the child the self-same rights and benefits as a child adopted in England by an English adoption order. I know that BARNARD, J., would not have given the foreign-adopted child even those rights. In Re Wilby (decd.), he would not allow the child (or in that case the parent) to succeed on an intestacy. But I think that case was wrongly decided. It may be suggested that the foreign-adopted child should have all the self-same rights of succession as that foreign country gives; and there are some passages in Re Marshall (decd.), Barclays Bank, Ltd. v. Marshall, which give colour to that view. But I am quite clear that we do not look to the law of succession of the foreign country. It we did, we might find that a foreign­adopted child had greater rights of succession in England than an English-adopted child. Which is absurd. The correct solution is this: the child is to be treated in English law just as if he or she had been adopted in England, no better and no worse.

Lord Justice Danckwerts said (at 233):

I reluctantly, therefore, have come to the conclusion that I must agree with the opinion of LORD DENNING, M.R., that the courts of this country will only recognise an adoption in another country if the adopting parents are regarded by the law of this country as domiciled there. It will be observed that I have expressed the proposition in such a way as to get over the difficulty in regard to countries which do not recognise our conception of domicil.

(Citations omitted.)

47    The following is a summary of the matters which emerge from Lord Denning’s judgment:

(1)    An adoption order will only be recognised by an English Court where made by a court of a country in which the adopting parents were domiciled at the time the order was made;

(2)    An adoption order will only be recognised by an English Court where there is nothing contrary to public policy (as assessed by the English Court) in recognising the order;

(3)    The recognition of an adoption order by an English Court does not mean that the child has the same rights as a natural born child under English law and nor does it mean the child has the same rights in England as he would have in the foreign country in which the order was made; and

(4)    The recognition of an adoption order by an English Court means that the child who is the subject of the foreign adoption order has the same rights as if that child had been adopted in England under English law.

48    Some aspects of Lord Denning’s statement of the requirements for the recognition of adoption orders made by the courts of foreign countries have been questioned, such as a requirement that the child be ordinarily resident in the foreign country where the adoption order was made (Dicey, Morris & Collins The Conflict of Laws (16th ed, Sweet & Maxwell, United Kingdom, 2022) at 1293 [21–118] and following), but none of those matters are of present relevance.

49    It is important to note that there were two questions in Re Valentine’s Settlement and they were whether the foreign adoption orders were to be recognised and, if so, what effect was to be given to the orders. For example, the Court may recognise a foreign adoption order for the purposes of recognising the adopted child as an adopted child under English law, but that may not mean that the adopted child falls within the term of “children or issue” within the terms of a property settlement.

50    The public policy exception referred to by Lord Denning in Re Valentine’s Settlement is the subject of the following observation by the authors of Dicey, Morris & Collins The Conflict of Laws (at 1299 [21-127]):

Recognition contrary to public policy. Lord Denning M.R. in Re Valentine’s Settlement entered one caveat against recognising a foreign adoption, namely, that there must be nothing contrary to public policy in so recognising it. Rule 127 does not mention this qualification, because public policy is a necessary reservation in any conflict of laws case. However, it is more than usually important to keep this factor in mind when deciding whether to recognise a foreign adoption, because the laws of some foreign countries differ so widely from English law as to the objects and effects of adoption. If the foreign adoption was designed to promote some immoral or mercenary object, like prostitution or financial gain to the adopter, it is improbable that it would be recognised in England. But, apart from exceptional cases like these, it is submitted that the court should be slow to refuse recognition to a foreign adoption on the ground of public policy merely because the requirements for adoption in the foreign law differ from those of English law. Here again the distinction between recognising the status and giving effect to its results is of vital importance. Public policy may sometimes require that a particular result of a foreign adoption should not be given effect to in England; but public policy should only on the rarest occasions be involved in order to deny recognition to the status itself.

(Footnote references omitted.)

51    In Re N (Recognition of Foreign Adoption) [2016] EWHC 3085 (Fam); [2017] 2 FLR 297, Sir J Munby P considered Re Valentine’s Settlement and the subsequent cases which have considered it. The President concluded that Re Valentine’s Settlement remained good law and that it was binding on judges at first instance until the Court of Appeal decided otherwise.

52    In Bouton v Labiche (1994) 33 NSWLR 225 (Bouton v Labiche), the Court of Appeal in New South Wales considered a provision in the Adoption of Children Act 1965 (NSW) which specified the circumstances in which an adoption order made outside the Commonwealth of Australia would be recognised for the purposes of the law of New South Wales. The Court was given the power to deny recognition if it considered that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice. The case is of assistance even though, as I have said, there is no equivalent provision in the Adoption of Children Act 1932 (NI).

53    President Kirby made reference to the common law principles. His Honour said (at 234):

1.    The courts of the common law will recognise as valid the orders of a competent foreign tribunal (formerly a “foreign Christian tribunal”) determining the status of a person who, for the purposes of international law, is domiciled in the jurisdiction of the foreign tribunal: see Armitage v Attorney-General (Gillig cited); Gillig v Gillig [1906] P 135 at 141;

2.    The interests of comity are not served if the courts of the common law are too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders which are, and remain, valid by the law of the domicile: see Igra v Igra [1951] P 404 at 412; MacAlpine v MacAlpine [1958] P 35 at 45;

3.    Nevertheless, the courts of the common law, and notably the courts of England, have reserved to themselves the right to refuse to recognise decrees and orders of foreign courts and tribunals — even those of the domicile of the person affected which remain valid by the law of the domicile—where:

(a)    the order impugned offends against local ideas of substantial justice: see Gray (orse Formosa) v Formosa [1963] P 259; Lepre v Lepre [1965] P 52; or

(b)    the decree or order has been obtained in the foreign court or tribunal contrary to the requirements of procedural fairness or natural justice: MacAlpine v MacAlpine; Middleton v Middleton [1967] P 62 at 69.

…

54    One of the cases referred to by Kirby P was MacAlpine v MacAlpine [1958] P 35. That case involved a divorce decree obtained by a husband by fraudulent conduct which had the effect that the wife was not notified of the proceeding. The English Court refused to recognise the decree. Sachs J said the following (at 45):

In the light of the above-cited authorities I consider that the issue for decision in the present case must nowadays be approached on the following basis. First, a decree of divorce pronounced by a foreign court of competent jurisdiction is treated as a nullity by the courts of this country if obtained as a result of proceedings which took a course contrary to natural justice. I use the word “treated” as a nullity because to my mind it is not necessary to show either that the decree is in its particular circumstances regarded by the law of the foreign court as void as opposed to voidable or that the decree if obtained in parallel circumstances in this country would here be regarded as void as opposed to voidable. Secondly, where the respondent has had no notice of the proceedings, the decree is prima facie one obtained by a procedure contrary to natural justice. Thirdly, that where it is proved to be the case or where it can be assumed to be the case that upon information bona fide given to it the foreign court has held that its own rules as to service or substituted service have been duly complied with, and that it is despite that fact that no notice of the proceedings has been received by the respondent, then the courts of this country, by way of exception, will not generally regard that absence of notice as resulting in the foreign court's proceedings being contrary to natural justice. (I use the word “generally” because in each of the three cases cited above the rules of the foreign court as to substituted service appear to have been of the same type as our own, and there has not yet fallen for consideration the — I hope unlikely — position of the rules of the foreign court themselves being repugnant to our views here of natural justice.)

In the present case the absence of notice of proceedings was procured by the fraud of the husband and does not fall within the above exception created by the three recent cases. Nor is there any reason whatsoever why there should not be here applied the rule that prima facie such absence of notice results in the proceedings being contrary to natural justice. It is a case where the husband deliberately set out to procure that natural justice should not obtain, succeeded in what he sought to do, and has created the conditions in which it is right to hold, as I do, that the decree of the court of Wyoming must be treated as a nullity here.

55    I return to Bouton v Labiche and the facts in that case. An infant had been the subject of an adoption order made by the Supreme Court of Mauritius. In the application made by the adoptive parents, they falsely stated that the child’s parentage was unknown, when, in fact, they both knew that the female was the child’s natural mother with another man. Some years later, the adopted child applied for Letters of Administration in respect of her natural father’s estate and to take the benefits of that estate as the sole surviving issue.

56    The Court declined to recognise the adoption order made by the Supreme Court of Mauritius. In refusing recognition of the adoption order made by the Supreme Court of Mauritius, Kirby P said that the acts of the adoptive parents meant that the procedure followed in connection with the adoption order did not meet “the requirements of the substantial justice”. Kirby P considered that to be a very broad phrase (at 242). Mahoney JA considered that the procedure followed in connection with the adoption order involved a denial of natural justice. There was a knowing misstatement which meant that the application for the adoption order was not brought to the attention of the natural father, the person in respect of whom links would be severed upon the making of the adoption order. The critical consideration is that the absence of notice to the natural father was contrary to natural justice as understood in New South Wales, although his Honour did consider that the Supreme Court of Mauritius, had it been aware of the true position, would have ordered that the natural father be given notice (at 244). Priestley JA considered that there had been a denial of natural justice because the dishonest acts of the adopting parents meant that the natural father was not given notice.

Analysis

57    With these authorities in mind, I turn to consider the first question of whether this Court should recognise the adoption orders made in New Zealand.

58    The Court will not recognise the orders in circumstances where the Court concludes that to do so would be contrary to public policy. The Court may reach that conclusion if there has been a serious departure from the rules of procedural fairness or a failure to meet notions of substantial justice.

59    The evidence of the circumstances surrounding the making of the adoption orders is limited. The deceased and Mrs Scadden were the biological parents of Peter and Tracy. They never married. Peter was born on 25 June 1967 and Tracy was born on 13 July 1968. The deceased and Mrs Scadden separated on 1 October 1969 and Mrs Scadden married Mr Edwards on 10 November 1969. The adoption orders were made approximately two years later.

60    Mrs Scadden did not provide the application papers or the orders to the deceased (or authorise any other person to do so) and, to the best of her recollection, she did not tell him beforehand. She did tell him about the adoptions a few days later when the deceased called at Mrs Scadden’s home. I make findings of fact in these terms.

61    The material before the Magistrates Court in Napier, New Zealand in October 1971 is not before this Court. Nor are any written reasons of the Magistrates Court (assuming there were written reasons) before this Court. There is no direct evidence relating to the Court’s consideration or otherwise of whether it was expedient to require the consent of the biological father, that is, the deceased. There is no evidence that Mrs Scadden misled the Court and, in any event, that is not alleged by any party. The allegation is one of a breach of the rules of natural justice or procedural fairness in that the deceased was not told of the proceedings beforehand. I was not referred to any section in the Adoption Act 1955 (NZ) which required Mrs Scadden or Mr Edwards, or indeed anybody else, to have given notice to the deceased of the proceedings. I assume that it was open to the Court to conclude that in terms of expediency, it was not necessary to require the deceased’s consent in writing. The presumption of regularity may be called in aid to conclude that the Magistrates Court did consider the issue in s 7(3)(b) of the Adoption Act 1955 (NZ) and that the adoption orders were regularly and properly obtained under the Act.

62    That is not the end of the natural justice (or procedural fairness) and public policy inquiry because that matter is judged by the law of the forum having regard to its notion of what is procedurally fair and not contrary to public policy. In that respect, the local Act (or common law) will provide a guide, but I do not think it is decisive. It may be that under the local Act, notice to a parent is likely to be given in most cases, but there may well be cases where it is not. As to the public policy exception, in my view it cannot be said that the different “presumption” about whether the biological father’s consent is needed in the case of a child born out of lawful wedlock under the Adoption Act 1955 (NZ) is such that enforcement of the order made thereunder would be contrary to public policy in this jurisdiction. The provisions reflect a different policy based on whether or not the children were born in lawful wedlock.

63    These conclusions are sufficient to answer the questions raised on this application because the principal argument of Peter and Tracy was that the adoption orders were made in breach of the rules of natural justice and for that reason, should be not be recognised. I reject that argument. It seemed to be accepted that once the adoption orders were recognised, it followed that Peter and Tracy would not be entitled to the deceased’s estate on intestacy. That concession is correct for the reasons which follow.

64    It should be said at the outset that there is no public policy reason not to give effect to the adoption orders in a way which precludes the adopted children from sharing on intestacy in the estate of a biological parent who is not an adopter. It was not disputed, but even if it had been disputed, it is clear that had the administration of the deceased’s estate been governed by the law of New Zealand, Peter and Tracy would not be entitled to share in the deceased’s estate. Equally, subject to one small issue addressed below, had the adoption orders been made in Norfolk Island, Peter and Tracy would not be entitled to share in the deceased’s estate on intestacy. Furthermore, it is a common feature of adoption legislation and succession legislation that adoption orders can result “not only in the creation of a new legal status between individuals, but also in the destruction of the status as between others” (Re DG and The Adoption Act 2000 (NSW) [2007] NSWCA 241; (2007) 244 ALR 195 at [4] per Basten JA). For example, one need only consider the legislation in New South Wales. Section 95 of the Adoption Act 2000 (NSW) and s 109 of the Succession Act 2006 (NSW) have the effect that for the purposes of succession rights, family relationships that exist as a matter of biological fact, and are not consistent with the relationship created by adoption, are to be ignored. The adoption order has the effect that the adopted child is regarded in law as the child of the adoptive parents and ceases to be regarded in law as the child of the birth parents.

65    I reject one argument put by Ms Stevens. It was, as I understand it, that relying on the common law rules of private international law, I could declare that Peter and Tracy were each an adopted child in that each of them became “an infant authorised to be adopted under [the] Act”. I had difficulty following this argument and I reject it. If Peter and Tracy are precluded from sharing in the deceased’s estate on intestacy it is because the common law rules of private international law mean the “foreign” adoption orders are given the same effect as orders made in Norfolk Island, or they are given the same effect as they have in the place where they were made. The first is said to be the English approach and the second is said to be the Australian approach. As it happens in this case, either way the result is the same.

66    The English approach is set out in Re Valentine’s Settlement. Once recognition is accorded to the adoption order, the adopted child has the rights he or she would have under the law of the local jurisdiction. Subject to a consideration of how the Adoption of Children Act 1932 (NI) interacts with the Administration and Probate Act, the effect of s 9(3)(b) of the former Act is that an adopted child has no right of succession to any real or personal property of his or her natural parent or parents.

67    The Australian approach, so far as it is clear, tends to favour applying the law of the foreign jurisdiction where the adoption order was made as to the effects of the order once recognised (In re Pearson [1946] VLR 356 at 362 per Gavan Duffy J; L v L [1959] VR 213 at 220 per Hudson J; In the Estate of Searle, Deceased [1963] SASR 303 at 309). If that approach be followed, the result is the same and an adopted child ceases to be the child of his or her natural parents by reason of s 16 of the Adoption Act 1955 (NZ) (Re Walker (deceased) [1973] 1 NZLR 449 at 452 per Henry J).

68    In the circumstances, I do not need to pursue this issue any further.

69    The final question involves a consideration of the interaction between s 9(3)(b) of the Adoption of Children Act 1932 (NI) which refers to “adopted child” and the Administration and Probate Act which refers to “issue” in the context of providing for succession rights on intestacy (see ss 58, 61 and Part 2.2 of Schedule 2). The word “issue” is defined in s 3, but the definition goes no further than making it clear that legitimate and illegitimate children are included. The word “issue” has a well-known meaning in the common law. In Matthews v Williams [1941] HCA 32; (1941) 65 CLR 639, Acting Chief Justice Rich, Justice Dixon (as his Honour then was) and Justice McTiernan said (at 650–651):

But we have come to the conclusion that the gift to “issue” is not limited to children of the testator’s children, but includes remoter descendants. “Issue” is a word with a clear prima-facie legal meaning. It means descendants or progeny. No doubt “issue” is a flexible word and its prima-facie application may be restricted by any sufficient indications appearing in the documents: Cf. In re Birks. But “the essence of the word ‘issue,’ which primarily means all descendants, is totality rather than succession” (In re Cust; Glasgow v Campbell, per Cussen, J., distinguishing “issue” from “heirs of the body”).

(Citation omitted; see Buick v Equity Trustees Executors & Agency Co Ltd (1957) 97 CLR 599.)

70    The word “issue” includes children, but it is clear from s 61 of the Administration and Probate Act that it extends to children of children and would have its primary meaning of descendants or progeny.

71    Peter and Tracy only come within the common law meaning of issue because they are the natural children of the deceased. If by statute they are not to be considered children of the deceased, then they are not issue. Although the facts were very different, in the case of In re H deceased [1947] VLR 170, Herring CJ said (at 173):

This being so, when one is considering the persons to take under the intestacy of a natural parent, there seems good reason for saying that for this purpose an adopted child is not the child or issue of such parent within the meaning of the provisions dealing with this matter. And I think I should hold that when such provisions are applied to the case of the present intestate as a natural parent they should be applied on this basis, and that as a result his estate should be distributed as if, in fact, he had no issue.

Conclusions

72    For these reasons, I would answer the questions raised in the Deputy Curator’s Originating application as follows:

(1)    No. The document titled “LAST WILL OF W.K.GREEN” dated 25 January 2005 and signed by William Kenneth Green (the Deceased) is not a valid will and the Deceased’s estate be distributed on intestacy pursuant to the provisions of the Administration and Probate Act 2006 (NI).

(2)    Yes. The adoption orders made on 27 October 1971 in the Magistrates Court at Napier, New Zealand, under the Adoption Act 1955 (NZ) regarding     Peter Simon and Tracy Huia Simon (the Deceased’s Biological Children) are effective adoption orders under the Adoption of Children Act 1932 (NI) and pursuant to s 9 of that Act, the Deceased’s Biological Children are not entitled to benefit on intestacy under the Deceased’s estate and the Deceased’s estate be distributed to Patricia Rosanne Stevens, the Deceased’s sister, as the only eligible next of kin.

(3)    Does not arise.

Associate:    

Dated:    25 January 2024