Fact check: why the Court denied Sheralee Macgowan’s application for further provision

In the recent decision of Macgowan v Klatt [2019] QSC 222, Natalie Silvester, Associate of Mullins recently acted for Michael Klatt, Partner of Mullins, (Michael) in his capacity as Administrator of the Estate of the late Kenneth Hamish Macgowan (Ken).

Michael is regularly appointed by the Supreme Court of Queensland (SCQ) as an independent administrator in complex estates. The role of an independent administrator is to uphold the terms of the deceased person’s Will and the interests of the beneficiaries of the estate. In commencing or defending any action by the estate, an independent administrator will usually seek the views and opinions of the beneficiaries involved.

In this case, Sheralee Macgowan (Sheralee) commenced an application in the SCQ where she sought further provision from Ken’s estate (known as family provision applications). The matter came before Her Honour, Chief Justice Holmes, during a three day trial which took place in March, with the Judgment being delivered on 11 September 2019 in which Her Honour noted involved difficult questions of law and questions of fact.

This case is particularly unique because the Court had to determine whether Sheralee was an “eligible applicant” to make a family provision application. To be an eligible applicant in Queensland, you must be the spouse, child or dependent of the deceased person.

Sheralee originally pursued her application on the basis that she was Ken’s (biological) daughter. DNA evidence obtained before the trial commenced confirmed that Ken was not the biological father of Sheralee. Sheralee then pursued her application at trial on the basis that she was Ken’s adopted daughter and that he had adopted her in accordance with the customary law of Vanuatu and, in particular, in a custom ceremony that took place in 1993 shortly after her birth.

To fall within the meaning of an adopted child under the Succession Act (Qld), the adoption must be in accordance with the law of the State or Territory or country where the adoption took place. However, the Adoption Act (Qld) imposes further requirements in relation to adoptions in non-convention countries. As Vanuatu is a non-convention country, these further requirements apply to any adoption in Vanuatu which is to be recognised in Queensland. Specifically, the adoption needs to be:

1. effective according to the law of the country that the adoption took place in;
2. the adoptive parent needs to be resident or domiciled in that country for at least 1 year;
3. the adoptive parent needs to have a right superior to that of any biological parent/s of the adopted person in respect of the custody;
4. the adoptive parent must be placed generally in the position of a parent; and
5. the adoption not rescinded under law of that country.

Accordingly, in this case, Her Honour had to ascertain whether:

1. Ken adopted Sheralee under Vanuatu customary law;
2. whether the adoption gave Ken a right superior to that of any biological parent; and
3. whether Ken was placed generally in the position of parent to Sheralee.

As is ordinarily the case with family provision applications, there is a lot of very fact specific background information. We have attempted to summarise the salient background below:

• 1987 – Ken moved to Vanuatu (after spending some time in Papua New Guinea and Australia); he became the sole shareholder in a Vanuatu private company which held extensive leaseholdings in Port Vila, Vanuatu;
• 1993 – Rachel Seule (Rachel), Ken’s housekeeper gave birth to Sheralee;
• 1993 – Rachel gave Sheralee away to a family in Vanuatu approximately 1 month after she was born;
• 1993 – A ceremony took place under Vanuatu customary law in respect of Ken and Rachel taking Sheralee back from that family;
• 1996 – Rachel left Ken’s property and took up residence with an American man. Sheralee stayed living at Ken’s property;
• 1998 – Rachel fell ill with leukaemia. She made Ken promise that he would continue to care for Sheralee, which Ken agreed to do so;
• 1998 – Rachel and her brother, Robert Seule (Robert), signed a letter granting permission for Ken to take Sheralee to Australia for a 6 week holiday;
• 1998 – Rachel registered Sheralee’s birth. The contents were declared as true by Rachel. Sheralee’s surname was recorded as “Seule” and the column where the name of any father was to be inserted was struck through;
• 1999 – Rachel died;
• 1999 – Robert signed a letter as head of the Seule family agreeing for Ken to “continue as authorized guardian” of Sheralee;
• 2001 – Ken applied for an Australian Tourist Visa so that Sheralee could visit Australia. He signed as “guardian” and her surname was referred to as “Seule”;
• 2003 – Ken took steps to formally change Sheralee’s name and explained to officials the difficulties that had arisen because of variations in Sheralee’s name on different documents and said that Sheralee was to have the name “Macgowan” because of his sponsorship of her education and guardianship since Rachel had died. Robert supported that application with a letter in which he referred to himself as the parent of Sheralee and that Ken would be her “future guardian”;
• 2005 – A deed was signed by Ken and the Seule family whereby Ken agreed to be appointed guardian and the document was formalised to allow Ken to bring Sheralee to Australia in order for her to attend school in Australia; The Seule family stated that they wanted Ken to look after her as they could not do so “financially or otherwise”. The Deed refers to it being in Sheralee’s best interests that Ken “be approved as her lawful guardian”;
• 2006 – Sheralee’s surname was changed to “Macgowan”. She retained her Melanesian name of “Seule”;
• 2007-2008 – Sheralee lived with Ken and attended school in Queensland;
• 2008 – Sheralee returned to Vanuatu;
• 2008 – Ken made a Will which expressed a wish that his house property be held until Sheralee reached 18 years of age and appointed family members as guardians of Sheralee wherein she was described by Ken as “the child of my household”;
• 2009 – Sheralee gave birth to her first child;
• 2009 – Ken made a Will in Vanuatu in which he gave certain lots of land to Sheralee and described her as “my adopted daughter”; he later revised this Will and deleted that description and said that he remained her guardian until her 18^th birthday but apart from the land mentioned in the Will, she did not have any automatic rights over any other benefits in his Will;
• 2010 – Ken gave instructions to his Queensland solicitor to the effect that he was only the guardian of Sheralee and that he had not adopted her. He had looked after her as an obligation to Rachel and her changed name to Macgowan was for ease of schooling when she was in Australia;
• 2011 – Sheralee turned 18 years old
• 2011 – Ken signed his last Australian Will referring to Sheralee as “the girl of whom I was formally guardian until she turned 18”;
• 2011 – Ken signed his last Vanuatu Will referring to Sheralee as “the girl of whom I was formally guardian until she turned 18”;
• 2012 – Ken died leaving an estate worth approximately $5,000,000.

Each party called an expert witness to give evidence about Vanuatu law. Sheralee called Ms Shah, an assistant lecturer in the School of Law at the University of the South Pacific. Michael called Professor Corrin, a Professor in Law and Director of Comparative Law at the University of Queensland Law School.

The two experts agreed that there were two forms of adoption in Vanuatu. Formal adoption (as ordered by the courts) and customary adoption. A valid customary adoption did not assure the making of a court adoption order because different considerations regarding the best interests of the child would prevail in relation to court ordered adoptions.

Both experts acknowledged the difficulties in identifying what customary law was in any given context because it is unwritten, it differs from location to location and because members of communities often disagree amongst themselves as to what amounts to a rule of custom. Both experts gave their views as to what would constitute a customary adoption on Tongoa Island, which is where Rachel’s family came from. Her Honour accepted that a customary adoption on Tongoa Island required a ceremony which involved an exchange of food combined with the necessary intention of those involved. However there are two limits to that which were raised by Professor Corrin. Firstly, whether a single male could adopt a female child in custom and whether a non-indigenous person could adopt an indigenous child in custom.

It was unclear whether customary law permitted adoption of a female child by a single male, however Professor Corrin pointed to two decisions where adoptions were refused in those situations. In each of those decisions, reliance was placed on the prohibition of this practice under the Adoption Act (UK), which is still valid law in Vanuatu. Her Honour found that the position on this was so unclear that she was not prepared to conclude that there was any bar in customary law to a heterosexual male adopting a female child.

In respect of whether foreign nationals can adopt in customary law, Her Honour turned to the Custom Policy of the Malvatumauri. This Policy does not specifically prohibit adoption by foreign nations but Her Honour considered that the absence of any prohibition is not a positive indication of its permissibility. Her Honour considered the purpose behind custom policies and found that customary adoptions are essentially familial in character, often with the purpose of preserving land ownership within family bloodlines and that the intent of customary law is to generally preserve the practices of those within the indigenous culture. Her Honour accepted as correct Professor Corrin’s opinion that non-indigenous people cannot adopt in custom and found that customary law would not have permitted Ken, as a foreign national, to adopt Sheralee.

In the event her conclusion above was incorrect, Her Honour then went on to address whether, under the customary law of Vanuatu, Ken was given a right superior to that of Rachel and whether Ken was placed generally in the position of parent to Sheralee, these two elements being required to under the Adoption Act (Qld).

Professor Corrin described customary adoption as more akin to fostering. In her view, it did not sever ties between the adopted child and the biological parents and it was not uncommon for the child to return to his/her biological parents.

Her Honour found that there was a ceremony where Ken provided a bullock to Sheralee’s family and said that he would look after her and that her family gave its approval to Ken to take Sheralee back to his property. However the fact that a bullock was handed over does not, of itself, dictate a positive conclusion that this amounted to a customary adoption. The intent of those taking part in the ceremony is critical.

Her Honour then gave considerable weight to the documentary evidence which she held was far more reliable than witnesses’ accounts of what happened overly a quarter of a century ago. Her Honour noted that what stood out very clearly from the documentary evidence is that at no point did Sheralee’s family or Ken mention a customary adoption taking place, nor did they act as though parental control had been delivered to Ken. It was noted that Ken sought the permission of Rachel and Robert to take her out of the country. Whilst the permission of a mother may be explained, the permission of an uncle is only consistent with the view that Sheralee remained within the control of her extended family.

Upon Rachel’s death, it was considered necessary to give approval to Ken to continue his guardianship of Sheralee. Her Honour noted the notion of any parental right is contradicted by the focus on the Seule family’s wishes and reference to Ken’s status as “authorised guardian” in the documentation.

Later in 2003 Ken sought to have his surname incorporated into Sheralee’s name. He referred to his sponsorship and guardianship. He was also at pains to say that he had not adopted her and did not intend to do so. Accompanying that, Robert’s letter described himself as “parent”. All of this was inconsistent with Ken being regarded as having a similar level of responsibility as a parent.

In respect of the deed entered into between Ken and the Seule family, Her Honour found that it was significant that there was no reference to any ceremony in the preamble. Rather the deed predicted his responsibility for Sheralee on the promise made to Rachel when she was ill. Her Honour also found it significant that the Seule family expressly relinquished claims as next of kin, which had there already been a transfer to him of parental rights under customary law, would have been superfluous.

Ultimately, Her Honour found that the ceremony was not perceived by the parties to it as a customary adoption. Rachel had not surrendered her parental status (evidenced by her registering Sheralee’s birth, giving permission for Ken to take Sheralee out of the country and obtaining a promise from him that he would look after her). Her Honour found that Ken indicated his preparedness to accept some, but not necessarily sole responsibility, for Sheralee’s care during the ceremony but that his willingness fell well short of any intention to adopt Sheralee.

Her Honour also found that the agreement was one of guardianship only until Sheralee turned 18 and not one of taking the position of parent with the permanency which that entails. Ken regarded his duties to Sheralee as discharged once her minority ended.

Whilst Her Honour noted that there was obviously great affection between Ken and Sheralee, the overwhelming evidence was that he did not intend to and did not adopt her as his child.