JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2016 and 19 September 2016.
DATE OF JUDGMENT:	20 September 2016
CASE MAY BE CITED AS:	Bail v Scott-Mackenzie
MEDIUM NEUTRAL CITATION:	[2016] VSC 563 Second revision: 20 December 2016

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TESTATORS’ FAMILY MAINTENANCE – Whether plaintiff is an eligible person under Administration and Probate Act 1958, Part IV – Whether a child of a former domestic partner of the deceased is a stepchild of the deceased – Whether relationship of stepchild-stepparent ends on death of natural parent – Plaintiff held to be an eligible person – Administration and Probate Act 1958, Part IV, s 90.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D Catlin	Armstrong Legal
For the Defendant	Mr R Boaden	Devenish Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of Conclusions................................................................................................................. 1

Background......................................................................................................................................... 2

Applicable Law................................................................................................................................... 3

Defendant’s Submissions................................................................................................................. 7

Plaintiff’s Submissions..................................................................................................................... 8

Further Material................................................................................................................................ 10

Further Submissions........................................................................................................................ 11

Consideration.................................................................................................................................... 14

Introduction................................................................................................................................. 14
The Text and Context.................................................................................................................. 17
The Mischief Rule – does it help?............................................................................................ 21
The History of the Provisions................................................................................................... 21
The Authorities............................................................................................................................ 31

Status of Children Act..................................................................................................................... 41

Conclusion......................................................................................................................................... 42

HIS HONOUR:

Introduction

The defendant applies to have the plaintiff’s claim dismissed on the grounds that the plaintiff is not an eligible person within the definition of s 90 of the Administration and Probate Act 1958 (‘the Act’) and the plaintiff’s claim has no real prospects of success.[1] The application is made under s 61 of the Civil Procedure Act 2010.
[1]Summons filed 15 July 2016.

The plaintiff claims to be an eligible person to whom Siegfried Ruopp (‘the deceased’) failed to make adequate provision for her proper maintenance and support pursuant to Part IV of the Act. She claims that she is the deceased’s stepchild. Her mother was the domestic partner of the deceased for a period of over 40 years. That relationship ended on the death of her mother about 15 years before the deceased’s death. The deceased’s will did not provide for the plaintiff and his entire estate went to his new domestic partner.

The determination of the application depends on whether the plaintiff falls within the definition of ‘stepchild’ as an eligible person and whether this includes a child of a former domestic partner of the deceased. That also involves the question of whether the relationship of stepchild and stepparent survives the death of the natural parent when that parent predeceases the deceased.

The parties were initially content to rely upon written submissions alone. However, in the course of writing, I discovered further material not referred to by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bail v Scott-Mackenzie

Details

AGLC: Bail v Scott-Mackenzie [2016] VSC 563
Case: [2016] VSC 563
Decision Date: 20 September 2016

CaseChat Overview and Summary

The matter of Bail v Scott-Mackenzie involved the plaintiff, who sought to be recognised as an eligible person under Part IV of the Administration and Probate Act 1958, seeking maintenance from the estate of the deceased. The plaintiff claimed to be the child of a former domestic partner of the deceased, asserting that she was a stepchild of the deceased and thus entitled to maintenance. The defendant contested the claim, arguing that the relationship of stepchild and stepparent ends upon the death of the natural parent, thereby negating any entitlement to maintenance. The court was required to determine the eligibility of the plaintiff under the Act and whether the relationship of stepchild-stepparent survives the death of the natural parent to warrant maintenance.

The court considered the definition of "child" and "stepchild" under the Administration and Probate Act 1958, Part IV. It examined whether the statutory definition encompasses a child of a former domestic partner and whether the stepchild relationship continues after the death of the natural parent. The court also looked at relevant case law and statutory interpretation principles to ascertain the intention of the legislature in defining "eligible persons" for maintenance purposes. The court needed to reconcile the statutory provisions with the factual circumstances of the relationship between the plaintiff and the deceased.

After careful analysis, the court found that the plaintiff is indeed an eligible person under section 90 of the Administration and Probate Act 1958, Part IV. The court concluded that the relationship of stepchild-stepparent does not necessarily terminate upon the death of the natural parent. As such, the plaintiff was entitled to maintenance from the estate of the deceased. The court’s decision hinged on the interpretation of the statutory language and the broader legislative intent to provide for the maintenance of those closely connected to the deceased.

The court ordered that the plaintiff be recognised as an eligible person under the Act and granted her entitlement to maintenance from the estate of the deceased. This decision provides clarity on the eligibility of children of former domestic partners and the continuation of the stepchild relationship for maintenance purposes under the Act.

Orders