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Stolen Generation court battle: sisters win $200k after Linda Burney appeals

Posted on 30 Jan 2017

Front page of The Australian, our old client J. Bott finally got the ending she wished for.
Front page of The Australian, our old client J. Bott finally got the ending she had hoped and fought for in regards to her brother Howard Stanley Wilson’s Estate.

Indigenous MP Linda Burney pleaded with a NSW Supreme Court judge to find in favour of three of her Aboriginal friends who were seeking access to the $200,000 estate of their half brother, who was a member of the Stolen Generation.

In a letter addressed to the court, Ms Burney sought to ensure that the three women would inherit their half-brother’s estate, ahead of any members of the white family that adopted him.

The court noted that Ms Burney had been a member of the NSW parliament that amended succession law, which in turn enabled the three Aboriginal women to make a claim on the estate.

In a passionate letter addressed to the court, Ms Burney, who is the first Aboriginal woman elected to Australia’s House of Representatives, argued that “a forced adoption” had torn the family apart more than 50 years ago, but their love for each other endured.

NSW Supreme Court judge Geoff Lindsay described the case as “the first of its kind”.

Justice Lindsay said no court had previously been asked to decide between an Aboriginal person’s biological family and his adoptive family in such circumstances.

In court, Justice Lindsay said: “At the risk of courting controversy … I attribute little if any legal significance to Ms Burney’s characterisation of the ‘forced adoption’.

“I do not doubt that an Aboriginal woman who was single and pregnant in the mid-1950s would have been likely either to have her child removed from her care … or placed under social pressure to consent to adoption,” he said.

But he said the same would have been true of a pregnant, single white women at that time.

The case centred on an Aboriginal man, Mr Howard Stanley Wilson, 56, who died in 2013 without a will. He was adopted by a white couple but, after embracing his Aboriginal heritage as an adult, he lost all contact with his white family.

Justice Lindsay said Howard had barely known his white half-sisters. By contrast, he had been “lovingly embraced” by his Aboriginal half-sisters.

He said that Mr Wilson would in all likelihood have left his estate to the Aboriginal half-sisters, had he made a will and granted the bulk of it to them.

He might also have left the white sisters something, and to that end, the judge gave them $4000 each.

The court heard that Mr Wilson’s mother, Eunice Gardner (nee Clark) was a member of the Gunditjmama nation in western Victoria, who gave birth to Howard while unmarried at the age of 18. Howard was given to a white couple — the Wilsons — for adoption. His biological mother went on to have three more children: Jill Annette Bott, Michelle Muriel Gardner and Susan Christine Donovan.

They argued that their mother never wanted to give Howard away, and never stopped searching for him. Even on her deathbed, she urged her daughters to keep looking for their older half-brother, which they did, finally finding him after adoption files opened in the 1990s.

Howard had by then cut off all contact with the white family that adopted him. His reunion with his Aboriginal family was described as “joyous”. He didn’t go to his white adoptive father’s funeral, and there was evidence that his white family didn’t even know he was dead until three years after the fact. However, when Howard died, he left no will, leaving the court with a conundrum: who should inherit his $200,000 estate?

Under Australian law, when a person dies intestate, the estate will normally be divided first to his (or her) spouse, then children, then parents, then siblings, in that order.

Howard never married or had children and all of his parents, adoptive and biological, were dead. His closest relatives were therefore his adoptive’s father’s two daughters by a second marriage since they, by law, were Howard’s half-sisters. In normal circumstances, all biological ties are severed by the adoption.

In this case, Mr Wilson’s Aboriginal half-sisters were able to claim his estate under special provisions put in place for the Aboriginal community. The court noted that these provisions — Chapter Four of the Succession Act — were passed by the NSW parliament while Ms Burney was a member of NSW Legislative Assembly. She is now part of the federal opposition.

The amendment to part 4.4 of the Succession Act NSW 2006 provides for distribution to any person who can demonstrate entitlement under “the laws, customs, traditions and practices of the indigenous community”. The change is designed to take account of the fact that Aboriginal people may see “family” differently, and therefore want their estates divided differently.

In her letter, Ms Burney told the court she was “writing to support” the three Aboriginal half-sisters in their claim.

Ms Burney told the court she had “personally known the family for over 25 years. I always knew their mother, Ms Eunice Gardner. I attended her funeral. I can confirm the family are an Aboriginal family … they have been part of the Sydney Aboriginal community for over 50 years.”

“Jill, Susan and Michelle are the late Mr Wilson’s only biological family. They had a close and familial relationship with their brother for over 20 years until his death,” she said.