...Excerpts from Moynihan's findings on Mabo...
In his findings, Justice Moynihan published the following comments regarding Eddie Mabo:
'I was not impressed with the credibility of Eddie Mabo. I would not be inclined to act on his evidence in a matter bearing on his self interest ( and most of his evidence was of this character one way or another) unless it was supported by other creditable evidence.'
Justice Moynihan was not prepared to find that Eddie Mabo had been adopted by Benny and Maiga Mabo. (pp.149-153)Vol 1 Moynihan's findings.
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Doctor Beckett carried out an investigation which showed something like 14 per cent of children in the period from World War II up to his time on the Island had been adopted and he thought, probably correctly, that this was an underestimate. The rate of adoption is he thought likely to have been higher at earlier times. Many instances of adoption appear in the genealogies Exhibit 237.
Interesting enough the fact of adoption was concealed from the child and its discovery an upsetting event; eg the evidence of Caroline Modee.
One of the points of complete traditional adoptions seems to have been in order that the adopted child might inherit the adopted parent's land. The point of this was that in return for a place in the adoptive family and getting the land the adoptive child would look after the adoptive parents in old age; see for example Dr. Beckett t. 2345. It may also have served as a way of redistributing population or land; (Beckett t. 2201).
It seems that adopting parents had a preference for blood relationship albeit very slight but it was not regarded as essential at any time to which the evidence related; see eg. Beckett (t. 2201); J Wailu (t. 1256); Mrs. Lawrie (t. 2615); J Rice (t. 168) and associated exhibits. If Dr. Beckett is to be accepted the reason for favouring the blow has come ultimately to be pragmatic.
M. The Adoption of Eddie Mabo
When Eddie Mabo was born his sister Jessie and brothers Nicey and Robert were already established in the Mabo household while another brother Sasak had been placed with the Fred family.
150
Nothing emerges upon which one could confidently conclude as to how this came about. Nor does anything emerge to suggest that Eddie Mabo was handed over because of some adopting arrangement rather than on account of the condition of his natural mother and her death. There is no evidence of gifts having been made.
It appears that a number of children were brought up by Benny and Maiga Mabo during their lifetime. One witness at least (Sam Passi t. 1115) spoke of Eddie Mabo being brought up by his (Passi's) aunty Maiga and of others being brought up 'too'. Sam Passi, a very important and traditional Islander, would have been aware of the distinction between bringing up and adoption for the purpose of inheritance. Some witnesses spoke of Eddie Mabo having been adopted but I have reservations about that evidence
Those doubts encompass such considerations of whether a child would have been told, the information was second hand or more remote, the reliability of something said so long ago and other considerations I canvassed earlier.
The daughter of Benny Mabo's sister Kabozi was legally (in accordance with Queensland law) adopted by Benny and Maiga in 1951; Exhibit 233
It would seem that one of the essential aspects of Island adoption in order that it might have the effect that the child became the heir to the adoptive parents was that the child was relinquished to the adopting parents for that purpose rather than put in their care for some other purpose.
It emerged in cross examination that Eddie Mabo went to Thursday Island to live with his natural father Robert Sambo who had by then remarried for some six months in 1947-48. Eddie Mabo
151
sought to explain this in terms of Benny Mabo being in jail on Thursday Island so that he went to stay with his natural father Robert Sambo and his wife. } have the distinct impression that Eddie Mabo was less than frank about his relations with his natural father from whom it now suits him to distance himself.
There is no record of any jail term having been imposed on Benny Mabo for the relevant years; Exhibit 278 Annexure C and had it occurred Mr. Killoran would have expected to know of it but did not; t. 3234. It appears from the social history card for Mika Mabo Exhibit 280 Annexure N that Eddie Mabo went to live with Robert Sambo and his new wife as from the date of their marriage. He was claimed as a dependent by Robert Sambo in his tax return for the 1997-48 year; Exhibit 280 Annexure S. There is also the evidence of Tapim Bennyfather of the fact that Robert Sambo has asked him to approach Benny Mabo to have his son back; see Exhibit 118A. A letter written in 1966 (Exhibit 63) showed that Eddie Mabo called Robert Sambo "Dad" although he initially denied ever having done so. He then he did so out of respect because Robert Sambo demanded it; t. 758 and acknowledged (t. 861) that up to his death Robert Sambo insisted that he (Eddie) was a Sambo. Eddie Mabo claimed a Commonwealth Army pension in 1980 as the son of Robert Mabo although Benny Mabo had served in the Army and island adoption were recognised by the Commonwealth for the purpose of social security payments.
In the circumstances I am not prepared to conclude that Robert Sambo relinquished his son Eddie to Benny and Maiga Mabo for the purpose of adoption to be their or Benny Mabo's heir
152
or that Eddie Mabo was adopted with the consequence that he became
heir to Benny or Maiga Mabo. (end of quote)
As a result, Justice Moynihan declined to find that Eddie Mabo inherited any of the lands belonging to Benny Mabo. All but one of the blocks had been claimed on the basis of inheritance from Benny Mabo. The single exception was a block claimed through Benny's wife Maiga. It follows that Justice Moynihan refused to find that Eddie Mabo had any rights to the areas which had been the subject of his claim.
'I was not impressed with the credibility of Eddie Mabo. I would not be inclined to act on his evidence in a matter bearing on his self interest ( and most of his evidence was of this character one way or another) unless it was supported by other creditable evidence.'
Justice Moynihan was not prepared to find that Eddie Mabo had been adopted by Benny and Maiga Mabo. (pp.149-153)Vol 1 Moynihan's findings.
149
Doctor Beckett carried out an investigation which showed something like 14 per cent of children in the period from World War II up to his time on the Island had been adopted and he thought, probably correctly, that this was an underestimate. The rate of adoption is he thought likely to have been higher at earlier times. Many instances of adoption appear in the genealogies Exhibit 237.
Interesting enough the fact of adoption was concealed from the child and its discovery an upsetting event; eg the evidence of Caroline Modee.
One of the points of complete traditional adoptions seems to have been in order that the adopted child might inherit the adopted parent's land. The point of this was that in return for a place in the adoptive family and getting the land the adoptive child would look after the adoptive parents in old age; see for example Dr. Beckett t. 2345. It may also have served as a way of redistributing population or land; (Beckett t. 2201).
It seems that adopting parents had a preference for blood relationship albeit very slight but it was not regarded as essential at any time to which the evidence related; see eg. Beckett (t. 2201); J Wailu (t. 1256); Mrs. Lawrie (t. 2615); J Rice (t. 168) and associated exhibits. If Dr. Beckett is to be accepted the reason for favouring the blow has come ultimately to be pragmatic.
M. The Adoption of Eddie Mabo
When Eddie Mabo was born his sister Jessie and brothers Nicey and Robert were already established in the Mabo household while another brother Sasak had been placed with the Fred family.
150
Nothing emerges upon which one could confidently conclude as to how this came about. Nor does anything emerge to suggest that Eddie Mabo was handed over because of some adopting arrangement rather than on account of the condition of his natural mother and her death. There is no evidence of gifts having been made.
It appears that a number of children were brought up by Benny and Maiga Mabo during their lifetime. One witness at least (Sam Passi t. 1115) spoke of Eddie Mabo being brought up by his (Passi's) aunty Maiga and of others being brought up 'too'. Sam Passi, a very important and traditional Islander, would have been aware of the distinction between bringing up and adoption for the purpose of inheritance. Some witnesses spoke of Eddie Mabo having been adopted but I have reservations about that evidence
Those doubts encompass such considerations of whether a child would have been told, the information was second hand or more remote, the reliability of something said so long ago and other considerations I canvassed earlier.
The daughter of Benny Mabo's sister Kabozi was legally (in accordance with Queensland law) adopted by Benny and Maiga in 1951; Exhibit 233
It would seem that one of the essential aspects of Island adoption in order that it might have the effect that the child became the heir to the adoptive parents was that the child was relinquished to the adopting parents for that purpose rather than put in their care for some other purpose.
It emerged in cross examination that Eddie Mabo went to Thursday Island to live with his natural father Robert Sambo who had by then remarried for some six months in 1947-48. Eddie Mabo
151
sought to explain this in terms of Benny Mabo being in jail on Thursday Island so that he went to stay with his natural father Robert Sambo and his wife. } have the distinct impression that Eddie Mabo was less than frank about his relations with his natural father from whom it now suits him to distance himself.
There is no record of any jail term having been imposed on Benny Mabo for the relevant years; Exhibit 278 Annexure C and had it occurred Mr. Killoran would have expected to know of it but did not; t. 3234. It appears from the social history card for Mika Mabo Exhibit 280 Annexure N that Eddie Mabo went to live with Robert Sambo and his new wife as from the date of their marriage. He was claimed as a dependent by Robert Sambo in his tax return for the 1997-48 year; Exhibit 280 Annexure S. There is also the evidence of Tapim Bennyfather of the fact that Robert Sambo has asked him to approach Benny Mabo to have his son back; see Exhibit 118A. A letter written in 1966 (Exhibit 63) showed that Eddie Mabo called Robert Sambo "Dad" although he initially denied ever having done so. He then he did so out of respect because Robert Sambo demanded it; t. 758 and acknowledged (t. 861) that up to his death Robert Sambo insisted that he (Eddie) was a Sambo. Eddie Mabo claimed a Commonwealth Army pension in 1980 as the son of Robert Mabo although Benny Mabo had served in the Army and island adoption were recognised by the Commonwealth for the purpose of social security payments.
In the circumstances I am not prepared to conclude that Robert Sambo relinquished his son Eddie to Benny and Maiga Mabo for the purpose of adoption to be their or Benny Mabo's heir
152
or that Eddie Mabo was adopted with the consequence that he became
heir to Benny or Maiga Mabo. (end of quote)
As a result, Justice Moynihan declined to find that Eddie Mabo inherited any of the lands belonging to Benny Mabo. All but one of the blocks had been claimed on the basis of inheritance from Benny Mabo. The single exception was a block claimed through Benny's wife Maiga. It follows that Justice Moynihan refused to find that Eddie Mabo had any rights to the areas which had been the subject of his claim.
Keywords: adoption, inheritance, Killoran, Patrick, Mabo, Benny, Mabo Case, Mabo, Edward Koiki, Mabo, Maiga, Moynihan, Justice Martin, Moynihan's findings, oral evidence, Passi, Sam, Sambo, Robert, World War 2, 1990
Author: Kenna, Jonathan